KS: Impied consent law not a Fourth Amendment violation

There is no constitutional right to avoid a BAC test under the Kansas implied consent law. State v. Bussart-Savaloja, 40 Kan. App. 2d 916, 198 P.3d 163 (2008):

The United States Supreme Court has also rejected constitutional challenges to the admission of a defendant’s refusal to submit to a blood alcohol test. See South Dakota v. Neville, 459 U.S. 553, 563, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983), where the Court upheld a statute against Fifth Amendment self-incrimination challenges and due process challenges. The Court’s reasoning, however, is applicable to a Fourth Amendment challenge as well. The Court distinguished the case from a previous case in which the Court heard a Fifth Amendment challenge to the practice permitting prosecutors to comment on a criminal defendant’s election not to testify. See Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229, reh. denied 381 U.S. 957 (1965). The Court reasoned that “[u]nlike the defendant’s situation in Griffin, a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test.” Neville, 459 U.S. at 560 n.10; see K.S.A. 8-1001(f)(B).

Because there is no constitutional right to refuse to be tested, there can be no constitutional bar to the admission of testing evidence. See Melilli, The Consequences of Refusing to Consent to a Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S. Cal. L. Rev. 901, 922 (2002), arguing “[t]he end result is that, without a constitutionally effective right to block a search or seizure by refusing consent, the refusal of consent is constitutionally irrelevant. There can be no derivative constitutional right to bar evidence of an invocation of something that itself is not a constitutional right.”