Kansas DUI Checkpoints: Lawful Without an Authorising Statute

The first thing to establish about Kansas checkpoints is a negative, and it can be shown positively. The Kansas Office of Revisor of Statutes runs a full-text search over the Kansas Statutes Annotated. Searching it for "checkpoint" returns nothing, "checkpoints" returns nothing, "roadblock" and "roadblocks" return nothing, and even the bare word "sobriety" returns nothing anywhere in the Kansas code. The Kansas Legislature has never enacted a checkpoint scheme, has never set a notice requirement, a publication requirement, a supervisory-approval requirement or a site-selection rule, and has never prohibited checkpoints either.

That does not make them unlawful in Kansas. The Revisor's own annotations to K.S.A. 8-1759 and K.S.A. 8-1759a both cite Davis v. Kansas Dept. of Revenue, 252 Kan. 224, 230, 843 P.2d 260 (1992), in the same words: "Cited in holding that specific statutory authority not a prerequisite to stop a vehicle at sobriety checkpoint." Kansas checkpoints are therefore tested against constitutional reasonableness rather than against a statutory checklist, which is the opposite arrangement to a state that codified the practice.

The statute the courts have looked to is K.S.A. 8-1759, "Spot inspections by highway patrol." It requires every driver to stop and submit the vehicle and its equipment to an inspection of mechanical condition, and to any appropriate test, "at any location where signs are displayed requiring such stop and where members of the Kansas highway patrol are conducting such inspections and tests." The section names the operation a "spot inspection" and imposes a limit on how it is run: spot inspections must be conducted so that the operator of a motor vehicle, private or commercial, "shall not be unnecessarily inconvenienced by extended detours, unnecessary delays or any other unreasonable cause." Violation of the section is a class A misdemeanor under 8-1759(b). Its companion, K.S.A. 8-1759a, is the individualised version: a uniformed member of the highway patrol who has reasonable cause to believe a vehicle is unsafe or not equipped as required may require the driver to stop and submit to inspection, must give written notice of any defect found, and may order the vehicle not driven under its own power if further operation would be hazardous.

What happens once you are stopped is statutory, and here Kansas is precise. K.S.A. 8-1012(a) lets an officer request a preliminary screening test of breath or oral fluid only "if the officer has reasonable suspicion to believe the person has been operating or attempting to operate a vehicle while under the influence." A stop at a checkpoint does not by itself supply that suspicion. Under 8-1012(b) the screening result is used only to help decide whether to arrest and whether to request the evidentiary tests, and is not admissible in a civil or criminal action about the driving except to aid a court in testing the validity of the arrest or of the test request. The 2019 amendment (L. 2019, ch. 13, sec. 2) left the section with no penalty for declining the preliminary screening test.

The evidentiary test is governed by K.S.A. 8-1001. Under 8-1001(b)(1) one or more tests may be required only where the officer has probable cause to believe the driver violated K.S.A. 8-1567(a), or was driving a commercial motor vehicle with alcohol or drugs in the system, or is under 21 and was operating with alcohol or drugs in the system, and additionally either the person has been arrested or otherwise taken into custody for any state, county or city violation, or has been in a collision causing property damage, personal injury or death. Before a breath or bodily-substance test the officer must give oral and written notice under 8-1001(c), including that there is no right to consult an attorney about whether to test but that the driver may consult one and obtain additional testing afterwards, that refusal suspends driving privileges for one year, and that failing a test suspends them for either 30 days or one year.

One Kansas provision that is no longer on the books matters here. K.S.A. 8-1025 made refusing a test a separate crime; it was repealed by L. 2019, ch. 13, sec. 5, effective April 18, 2019, and the Revisor's page for the section now shows only the history line. Refusal in Kansas today is an administrative matter under K.S.A. 8-1001 and 8-1014, not a standalone offence.

A. A. A. 21-6611(b)(1) by a fine of up to $2,500. A. 8-1759a is also a class A misdemeanor under 8-1759a(d), and the trooper may in addition order that the vehicle not be operated under its own power or be driven only to the nearest garage or place of safety. A. A. A. 8-1015 and 8-1016. A. A. 8-1002. A. 8-1025, was repealed effective April 18, 2019.