The Right to Consult A Kansas DUI Defense Attorney Under The Implied Consent Law

In Kansas, any person who operates a vehicle in the state automatically gives consent to allow one or more tests of their blood, breath, urine, or other bodily substance to determine the presence of alcohol or drugs.  This law is also known as the Implied Consent Law.  The law also provides that the person must be given certain notices before a law enforcement officer administers such a test.

The notices include an advisement that “there is no constitutional right to consult with an attorney regarding whether to submit to testing.”  They must further state that “after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.”  In other words, a person has the right to consult with an attorney after they submit to a test that determines the presence of alcohol or drugs.

Before July of this year, it was unclear whether this post-testing right to counsel had to be invoked prior to the test or after test.  In Dumler v. Kansas Dept. of Revenue, the Kansas Supreme Court considered the issue of when a person must invoke this statutory right to counsel.  The Court held that a person has the right to request that he or she be allowed to consult with an attorney either before testing or after testing.  However, even though one may request to consult with an attorney prior to the test, they may not actually speak with an attorney until after the test is completed.  A person has no right to consult with counsel before deciding whether to take the requested alcohol testing.  The ruling by the Court only clarifies that if a person requests consultation with an attorney prior to the test, they do not have to again invoke the right after testing.

It is important to note that the Court also held that the implied consent advisory does not restrict the subject matter of a person’s attorney consultation, and certainly does not restrict the subject matter to a discussion of whether a person should undergo further testing.  Instead, the advisory provides that the person has the right to consult with an attorney and they may secure additional testing.  While consulting with an attorney about additional testing could be a good reason to exercise the right to counsel, the right is not conditioned upon a discussion of further testing.

If you have been arrested for driving under the influence and you must undergo testing at the police station, be sure to know your rights.  You are entitled to consult with an experienced Kansas DUI Defense Attorney after you complete the testing, but you may invoke this right either before and/or after the testing is administered.  With more than thirty five years of criminal defense experience, Charles E. Whitman is ready to help you fight your DUI charge.  Call The Whitman Law Offices today at (785) 843-9460 or toll free at (877) 933-4543 to schedule your free and confidential case evaluation.


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