The Kansas Court of Appeals last week handled an interesting K.S.A. 8-1001(p) “medical exception to an evidentiary breath test” case.  The substance of Amir’s 18-page appellate opinion is not important here, but the suggesting of a best practice under the all-to-familiar circumstances might be.

K.S.A. 8-1001(p) can be a defense to a test refusal: “Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.”  

David Amir was the subject of a DUI investigation.  When requested, he refused a breath test claiming that he was being medically treated for both asthma and COVID, and thus was unable to provide the breath volume required.  Though confusing in the court’s opinion, Amir then either requested and was refused a blood test, or it was Amir that was asked to take a blood test and he refused.  No matter.  Ultimately, no consent testing of any kind was done, the officer filed a test refusal with KDOR, KDOR suspended Amir’s drivers license, Amir appealed to the district court, court hearings were held, the district judge affirmed the DL suspension, Amir appealed to the state court of appeals, and that court has now affirmed the DL suspension.

The point here is: (and assuming that there was no unstated reason not to) had the officer sought a blood search warrant, much of that time-consuming legal back and forth would never have been necessary.  

K.S.A. 8-1001(a) says, “(a) Any person who operates or attempts to operate a vehicle within this state may be requested, subject to the provisions of this article, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing shall include all quantitative and qualitative tests for alcohol and drugs. The test must be administered at the direction of a law enforcement officer, andthe law enforcement officer shall determine which type of test is to be conducted or requested.  

And, K.S.A. 8-1001(f) states, “ Nothing in this section shall be construed to limit the right of a law enforcement officer to conduct or obtain a blood or urine test of a person pursuant to a warrant under K.S.A. 22-2502, . . . ”  

So, when Amir refused to consent to a breath test for whatever reason, the officer could have sought a search warrant, had the blood drawn involuntarily, submitted the evidence for testing, and the prosecution and KDOR would have had Amir’s alcohol level results available.  Instead, way too many attorneys were paid to express their opinions about the validity of Amir’s health arguments concerning giving a voluntary breath sample.  

Bottom line: with very few exceptions, all breath test refusals should immediately result in blood search warrants being sought and executed.

~ Colin