Refusing a Breath Test
Kansas City DUI Attorney Providing Aggressive Defense
The state of Kansas has what is called an implied consent law. Under this
law, all drivers in the state impliedly consent to submit to a
breath test, blood test and/or urine test just for driving in the state of Kansas. However, the
driver must first have been arrested or taken into custody for an alleged
driving under the influence (
DUI) offense. And, that arrest and stop must have been lawful. The Kansas
implied consent law (
K.S.A. §8-1001) has always in the past been a civil law with administrative sanctions
(license suspension) used to enforce the implied consent (i.e. persuade
drivers to take the test).
However, since July 1 of 2012, in addition to potential license suspension,
it is now a separate criminal offense to refuse to take a breath test
or one of the other types of chemical tests
). This new crime, commonly referred to as Criminal Refusal, has been deemed
Unconstitutional by at least one court in the state. This matter is on
appeal to the higher courts, but in the meantime drivers must be aware
of the consequences of refusing. Criminal Refusal basically mirrors the
DUI penalties, but can only be charged on a second or subsequent DUI offense
occurring after July 1, 2001. So, if a driver refuses, he or she faces
a 5 day minimum sentence and up to 1 year in jail for a first offense.
Subsequent offenses can even result in felony charges. In other words,
this law is being used to coerce drivers into providing a breath, blood,
or urine sample without the benefit of counsel. Drivers should also be
aware that DUIs and even BUIs (Boating Under the Influence) will be counted
as a prior DUI offense
If you are facing charges for refusing a DUI-related breath test, you must
contact an experienced attorney right away. Kansas City DUI Attorney Paul
W. Burmaster can help you assess the situation and determine how you can
best move forward. Paul W. Burmaster can help you with DUI charges under
either Kansas or Missouri law.
What happens if I refuse a breath test in Kansas?
In the state of Kansas, refusing to take a breath test or another chemical
test when it is required by law can result in a one-year
driver's license suspension and at least 2 years of Ignition Interlock. In addition, for a second
or subsequent offense, the driver can be charged with a criminal offense
commonly referred to as Criminal Refusal and face a jail penalty in addition
to the suspension of license. In comparison,
on a first offense, if a person takes a breath test that shows that he or she has a blood
alcohol concentration of 0.08% or higher, but below .15, that individual
only becomes subject to a 30-day license suspension with 6 months of interlock.
Once someone refuses to take a required chemical test, prosecutors may
use that refusal as evidence against the defendant in the courtroom.
Officers' Requirement to Inform the Driver
When officers request breath tests in Kansas, they must provide the driver
with both oral and written notice on a form called the DC-70. Among other
things, it contains the following information, some of it is confusing:
- Kansas law requires drivers who are suspected of DUI to submit to one or
more tests of breath, blood and/or urine.
- The opportunity to consent or refuse the test is not a Constitutional right.
- The driver does not have a Constitutional right to consult with a lawyer
when deciding whether or not to submit to the test.
Refusing this type of test is a separate crime that can result in penalties
that are equal to or greater than
DUI penalties if you have a prior DUI, BUI, Diversion, or prior refusal which occurred
after July 1, 2001 and you were at least 18 years of age at the time.
- Refusal of the test will also result in a 1 year suspension, and at least
2 years with an ignition interlock
There are 12 warnings in all, and again, some of them are confusing. For
a complete list, go to the KDOR website and look for the DC-70 form. Sometimes,
officers do not properly inform drivers as required under Kansas law.
The failure of an officer to give proper notice could be grounds for contesting
breath test refusal charges or a suspension of your license... There may
also be other grounds for challenging these types of charges, such as
the claim a refusal never even occurred or a claim that a breath test
was not actually required by law at the time of the refusal.
Contact us at Paul W. Burmaster P.A. for assistance from an experienced and qualified
Kansas City DUI lawyer!