K.S.A. § 3-1007 — KS Code / Chapter 3 / Article 10 / Section 3-1007
3-1007 - Tests for alcohol or drugs; request by officer, grounds; administration of tests, when; procedures; immunity from liability; admissibility and availability of test result; assessment of costs; privileges not applicable; remedial nature of law.
Status: in_force

3-1007. Tests for alcohol or drugs; request by officer, grounds; administration of tests, when; procedures; immunity from liability; admissibility and availability of test result; assessment of costs; privileges not applicable; remedial nature of law. (a) Any person who operates or attempts to operate an aircraft within this state may be requested, subject to the provisions of K.S.A. 3-1006 through 3-1009, and amendments thereto, 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 shall be administered at the direction of a law enforcement officer, and the law enforcement officer shall determine which type of test is to be conducted or requested.

(b) (1) One or more tests may be required of a person when, at the time of the request, a law enforcement officer has probable cause to believe the person has committed a violation of K.S.A. 3-1006(a), and amendments thereto, while having alcohol or drugs in such person's system, and one of the following conditions exists:

(A) The person has been arrested or otherwise taken into custody for any offense violation of any state statute, county resolution or city ordinance; or

(B) the person has been involved in an aircraft accident or crash resulting in property damage, personal injury or death.

(2) The law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the investigation or arrest.

(c) Nothing in this section shall be construed to limit the right of a law enforcement officer to conduct any search of a person's breath or other bodily substance, other than blood or urine, incident to a lawful arrest pursuant to the constitution of the United States, nor limit the admissibility at any trial or hearing of alcohol or drug concentration testing results obtained pursuant to such a search.

(d) 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, and amendments thereto, the constitution of the United States or a judicially recognized exception to the search warrant requirement, nor limit the admissibility at any trial or hearing of alcohol or drug concentration testing results obtained pursuant to such a search.

(e) A law enforcement officer may direct a medical professional, as described in subsection (f), to draw one or more samples of blood from a person to determine the blood's alcohol or drug concentration if:

(1) The person has given consent and meets the requirements of subsection (b);

(2) law enforcement has obtained a search warrant authorizing the collection of blood from the person; or

(3) the person refuses or is unable to consent to, submit to and complete a test, and another judicially recognized exception to the warrant requirement applies.

(f) If a law enforcement officer is authorized to collect one or more tests of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by:

(1) A person licensed to practice medicine and surgery, licensed as a physician assistant or a person acting under the direction of any such licensed person;

(2) a registered nurse or a licensed practical nurse;

(3) any qualified medical technician, including, but not limited to, an advanced emergency medical technician or a paramedic, as those terms are defined in K.S.A. 65-6112, and amendments thereto, authorized by medical protocol; or

(4) a phlebotomist.

(g) When so directed by a law enforcement officer through a written statement, the medical professional shall withdraw the sample of blood as soon as practical and shall deliver the sample to the law enforcement officer or another law enforcement officer as directed by the requesting law enforcement officer as soon as practical, provided the collection of the sample does not jeopardize the person's life, cause serious injury to the person or seriously impede the person's medical assessment, care or treatment. The medical professional authorized in this section to withdraw the blood and the medical care facility where the blood is drawn may act on good faith that the requirements have been met for directing the withdrawal of blood once presented with the written statement provided for under this subsection. The medical professional shall not require the person that is the subject of the test or tests to provide any additional consent or sign any waiver form. In such a case, the person authorized to withdraw blood and the medical care facility shall not be liable in any action alleging lack of consent or lack of informed consent. Such sample or samples shall be an independent sample and not be a portion of a sample collected for medical purposes. The person collecting the blood sample shall complete the collection portion of a document if provided by law enforcement.

(h) If a person must be restrained to collect the sample pursuant to this section, law enforcement shall be responsible for applying any such restraint utilizing acceptable law enforcement restraint practices. The restraint shall be effective in controlling the person in a manner not to jeopardize the person's safety or that of the medical professional or attending medical or healthcare staff during the drawing of the sample and without interfering with medical treatment.

(i) (1) If a law enforcement officer is authorized to collect one or more tests of urine, the collection of the urine sample shall be supervised by:

(A) A person licensed to practice medicine and surgery, licensed as a physician assistant or a person acting under the direction of any such licensed person;

(B) a registered nurse or a licensed practical nurse; or

(C) a law enforcement officer of the same sex as the person being tested.

(2) The collection of the urine sample shall be conducted out of the view of any person other than the person supervising the collection of the sample and the person being tested, unless the right to privacy is waived by the person being tested. When possible, the supervising person shall be a law enforcement officer.

(3) The results of qualitative testing for drug presence shall be admissible in evidence and questions of accuracy or reliability shall go to the weight rather than the admissibility of the evidence.

(4) If the person is medically unable to provide a urine sample in such manner due to the injuries or treatment of the injuries, the same authorization and procedure as used for the collection of blood in subsections (g) and (i) shall apply to the collection of a urine sample.

(j) No law enforcement officer who is acting in accordance with this section shall be liable in any civil or criminal proceeding involving the action.

(k) The person's refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of an aircraft while under the influence of alcohol or drugs, or a combination of alcohol and any drug or drugs.

(l) No test shall be suppressed because of irregularities not affecting the substantial rights of the accused in the consent or notice authorized pursuant to this section.

(m) Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant or other judicially recognized exception to the warrant requirement.

(n) Upon the request of any person submitting to testing under this section, a report of the results of the testing shall be made available to such person when available.

(o) The person tested shall have a reasonable opportunity to have an additional chemical test by a physician of such person's own choosing. If the law enforcement officer refuses to permit such additional chemical test to be taken, the original test shall not be competent evidence.

(p) (1) The testing and method of testing consented to under this section shall not be considered to have been conducted for any medical care or treatment purpose. The results of such test, the person's name whose bodily substance is drawn or tested, the location of the test or procedure, the names of all health care providers and personnel who participated in the procedure or test and the date and time of the test or procedure are required by law to be provided to the requesting law enforcement officer or the law enforcement officer's designee after the requesting law enforcement officer has complied with this section.

(2) All costs of conducting any procedure or test requested by a law enforcement agency and authorized by this section, including the costs of the evidence collection kits, shall be charged to and paid by the county where the alleged offense was committed. Such county may be reimbursed such costs upon the costs being paid by the defendant as court costs assessed pursuant to K.S.A. 28-172a, and amendments thereto.

(3) The cost assessed under this section shall be the then-current medicaid rate for any such procedure or test, or both.

(4) Notwithstanding any other law to the contrary, the collection and delivery of the sample and required information to the law enforcement officer pursuant to this section shall not be subject to the physician-patient privilege or any other law that prohibits the transfer, release or disclosure of the sample or of the required information.

(q) No medical care facility, clinical laboratory, medical clinic, other medical institution, person licensed to practice medicine or surgery, person acting under the direction of any such licensed person, licensed physician assistant, registered nurse, licensed practical nurse, medical technician, paramedic, advanced emergency medical technician, phlebotomist, healthcare provider or person who participates in good faith in the obtaining, withdrawal, collection or testing of blood, breath, urine or other bodily substance at the direction of a law enforcement officer pursuant to this section, or as otherwise authorized by law, shall incur any civil, administrative or criminal liability as a result of such participation, regardless of whether or not the patient resisted or objected to the administration of the procedure or test.

(r) K.S.A. 3-1006 through 3-1009, and amendments thereto, are remedial law and shall be liberally construed to promote public health, safety and welfare.