DUI evidence obtained under unconstitutional law still stands, Kansas court rules

As the state’s laws concerning driving under the influence remain in flux pending a U.S. Supreme Court ruling, the Kansas Court of Appeals ruled Friday a man could be convicted using evidence obtained under a defunct law.

Brent Kraemer was pulled over by a Salina police officer in the early hours of Sept. 5, 2013, for failing to use a turn signal. The officer, Randy Constantino, suspected Kraemer of being drunk because of his stuttering speech and bloodshot eyes.

Kraemer, who admitted to having one beer, underwent several field sobriety tests, which he largely failed. Constantino arrested Kraemer on suspicion of DUI.

At a Salina jail, the officer read Kraemer an implied consent advisory, informing him of a criminal charge if he refused to take a blood-alcohol test. After hearing the advisory, Kraemer agreed to take the test, which he failed with a blood-alcohol concentration of .139.

In February of this year, the Kansas Supreme Court determined criminal punishments for refusing a blood-alcohol test are unconstitutional. The U.S. Supreme Court is currently considering the constitutionality of similar criminal punishments in other states.

As a result of the Kansas Supreme Court’s ruling, the advisory Constantino read to Kraemer has since been replaced.

In the wake of that change, Kraemer urged the Court of Appeals to find his consent to a blood-alcohol test was involuntary and coerced by an advisory since found to be unconstitutional.

Judges Melissa Standridge, Steve Leben and Anthony Powell disagreed.

“The criminal penalty statute was struck down by the Kansas Supreme Court as unconstitutional only after Kraemer’s arrest,” Standridge wrote Friday.

The judges ruled the blood-alcohol test be admitted into evidence under a “good-faith exception” which defers to police officers except in cases where a statute is so clearly unconstitutional that an officer should know it is unconstitutional.

“Officer Constantino would not have known the written and oral implied consent advisory informing Kraemer that he might be charged with a separate criminal offense for refusal of requested testing was coercive,” Standridge wrote, adding Constantino “acted in good faith” by following the law that was in effect at the time.

DUI laws have been open to judicial interpretation in recent years.

On April 15, the Court of Appeals ruled a McPherson officer didn’t have reasonable suspicion to order a blood-alcohol test for Darcy Unrau in 2014, despite Unrau’s bloodshot eyes and open containers of alcohol.

The Unrau case was decided on precedents established by the Kansas Supreme Court last year in the case of William Molitor, a driver who passed two field sobriety tests after hitting a curb in Wichita. He was given a breath test, failed narrowly and was arrested for driving under the influence.

In a 4-3 decision, the Supreme Court reversed two lower court rulings, determining a police officer didn’t have reasonable suspicion to order a breath test for Molitor.