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 ( K.S.A. 8-1025 ). 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:

  1. Kansas law requires drivers who are suspected of DUI to submit to one or more tests of breath, blood and/or urine.
  2. The opportunity to consent or refuse the test is not a Constitutional right.
  3. The driver does not have a Constitutional right to consult with a lawyer when deciding whether or not to submit to the test.
  4. 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.
  5. 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!

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