Same; additional test by own physician; effect of denial

8-1004. Same; additional test by own physician; effect of denial. Without limiting or affecting the provisions of K.S.A. 8-1001, and amendments thereto, the person tested shall have a reasonable opportunity to have an additional test by a physician of the person's own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8-1001, and amendments thereto, shall not be competent in evidence. History: L. 1955, ch. 61, § 4; L. 1985, ch. 48, § 6; L. 1985, ch. 50, § 3; July 1. Law Review and Bar Journal References: Traffic cases and license problems, William M. Ferguson, 39 J.B.A.K. 351, 354, 399, 400 (1970). "S.B. 699—A Comment on Kansas' New 'Drunk Driving' Law," Joseph Brian Cox and Donald G. Strole, 51 J.K.B.A. 230 (1982). Attorney General's Opinions: Driving under the influence; additional testing to determine presence of drugs or alcohol. 93-138. CASE ANNOTATIONS 1. Purpose of act; constitutional exercise of police power; license revocation upheld. Lee v. State, 187 Kan. 566, 567, 358 P.2d 765. 2. Test operator not required to inform person tested of rights to independent test. City of Shawnee v. Gruss, 2 Kan. App. 2d 131, 134, 576 P.2d 239. 3. State has no obligation to advise of statutory right to additional blood alcohol chemical test by physician of accused's choosing. State v. Young, 228 Kan. 355, 360, 362, 363, 614 P.2d 441. 4. Cited; vehicular homicide (K.S.A. 21-3405), DUI (K.S.A. 8-1567) convictions; intoxylizer test procedures (K.S.A. 8-1001), independent test discussed. State v. McNaught, 238 Kan. 567, 582, 713 P.2d 457 (1986). 5. Individual believing breath test unreliable may have independent blood test administered at their expense. In re Appeal of Ball, 11 Kan. App. 2d 216, 219, 719 P.2d 750 (1986). 6. Cited; admissibility of blood alcohol test performed with consent but without notices contained in K.S.A. 8-1001(f)(1) examined. State v. Doeden, 12 Kan. App. 2d 245, 252, 738 P.2d 876 (1987). 7. "Reasonable opportunity" to have additional alcohol concentration test depends upon circumstances of each case. State v. George, 12 Kan. App. 2d 649, 653, 654, 754 P.2d 460 (1988). 8. Cited; notice provisions of K.S.A. 8-1001 concerning right to independent test as mandatory rather than directory examined. Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 212, 755 P.2d 1337 (1988). 9. State not required to ask defendant if independent alcohol analysis desired nor to record answer in writing. State v. Kristek, 14 Kan. App. 2d 77, 79, 781 P.2d 1113 (1989). 10. Proper remedy for violating right to counsel in K.S.A. 8-1001(f)(1)(E) as suppression of breath test determined; invoking right examined. State v. Kelly, 14 Kan. App. 2d 182, 185, 786 P.2d 623 (1990). 11. Section is not applicable to drug screening of prison inmates. McDiffett v. Stotts, 902 F. Supp. 1419, 1425 (1995). 12. Police officer's comments to suspect did not constitute coercion concerning right to independent alcohol test. State v. Chastain, 265 Kan. 16, 19, 960 P.2d 756 (1998). 13. Officer does not violate K.S.A. 8-1004 when hospital refuses to administer additional blood alcohol test. Mitchell v. Kansas Dept. of Revenue, 32 Kan. App. 2d 298, 81 P.3d 1258 (2004). 14. Defendant effected a valid rescission of her constructive test refusal; suppression of both the evidence of a test refusal and the evidence of the deficient breath sample test result. State v. May, 293 Kan. 858, 269 P.3d 1260 (2012). 15. Driver given evidentiary test for alcohol concentration must have reasonable opportunity to obtain independent test. State v. Messer, 49 Kan. App. 2d 313, 307 P.3d 255 (2013). Previous | Next LEGISLATIVE COORDINATING COUNCIL General Policies 2026 Archived LCC Documents Archived LCC Meetings REVISOR OF STATUTES Archived Session Documents Archived School Finance Documents USEFUL LINKS Session Laws Kansas Administrative Regulations OTHER LEGISLATIVE SITES Kansas Legislature Administrative Services Division of Post Audit Research Department Contact Us PDF Help www.ksrevisor.gov 2026