Newspaper article The Topeka Capital-Journal

Judge Rules Former Councilman's Rights Violated ; Requiring Drivers to Submit to Alcohol or Drug Testing Violates Right against Self-Incrimination

Newspaper article The Topeka Capital-Journal

Judge Rules Former Councilman's Rights Violated ; Requiring Drivers to Submit to Alcohol or Drug Testing Violates Right against Self-Incrimination

Article excerpt

A Kansas law requiring motorists to submit to testing for alcohol or drugs is unconstitutional, Shawnee County District Judge Bill Ossmann ruled Wednesday.

Ossmann concluded the constitutional rights of former Topeka City Councilman Andrew Gray were consequently violated last year when the Shawnee County Sheriff's Office sought to make Gray take a Breathalyzer test. Gray refused.

Ossmann issued a memorandum decision dismissing a charge alleging Gray refused to submit to a test for alcohol or drugs as required by Kansas statute 8-1025.

KSA 8-1025 violates the defendant's Fifth Amendment right against self-incrimination and the due process clause of the 14th Amendment, Ossmann wrote, adding that the Doctrine of Unconstitutional Conditions also provides another basis upon which to find that law unconstitutional. That doctrine prohibits a government from imposing a condition on the granting of a benefit requiring the waiver of a constitutional right.

Ossmann indicated that in granting the request for dismissal filed by Gray's attorney, Kevin Shepherd, he adopted reasoning put forth last year by Shawnee County District Judge Marc Braun.

Braun issued a 24-page ruling May 27, 2014, dismissing a charge that motorist Derick A. Wilson violated KSA 8-1025 when he refused to submit to a breath test. …

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