Refusal Penalties

Kansas Penalties For Refusing To Take A Chemical Test

In 2012, the Kansas legislature made it illegal to refuse a chemical test. It is now a criminal act to refuse a blood, breath, or urine test if the defendant has a prior DUI occurrence, even if the prior was a diversion! The penalties for refusals in DUI cases are harsh.

1st Time: 90 days jail to 1 year jail. Probation is allowed only after serving minimum of 5 days in custody. After 48 hours is jail, the remaining can potentially be served in house arrest or work release. Fine $1,250 - $1,750 Class A misdemeanor. Driver license is suspended for one year. We can potentially work out modifications after 90 days allowing the client to drive to work with an ignition interlock installed on the vehicle.

2nd Time: Can be a Felony or a misdemeanor. If no priors in past 10 years then it's likely a Class A misdemeanor. If priors in past 10 years, then it's a felony.

90 days jail to 1 year jail. Probation is allowed only after serving minimum of 90 days in custody. After 48 hours is jail, the remaining can potentially be served in house arrest or work release. Fine $1,750 - $2,500. Driver license is suspended for one year. We can potentially work out modifications after 90 days allowing the client to drive to work with an ignition interlock installed on the vehicle.

3rd Time: 90 days jail to 1 year jail. Probation is allowed only after serving minimum of 90 days in custody. After 72 hours is jail, the remaining can potentially be served in house arrest or work release. Fine $2,500. Felony. Driver license is suspended for one year. We can potentially work out modifications after 90 days allowing the client to drive to work with an ignition interlock installed on the vehicle.

Unconstitutionality of Refusal Statute

I have filed numerous motions on the Unconstitutionality of making it a crime to refuse a test. I believed that eventually the Kansas Supreme Court would deem the law Unconstitutional. In fact, in February of 1016, they did deem the refusal law Unconstituional under the Kansas Constitution. However, the United States Supreme Court then ruled criminallizing the refusal was Constitutional under the United States Constitution. The Kansas Supreme Court is now readdressing the matter. Interestingly, the Kansas AG has amended the Implied Consent Advisories due to these rulings. That could potentially be problematic for law enforcement in prosecuting drunk driving cases where an implied consent was give that isn't reflective of the actual statute.

If you are charged with a refusal, contact me now to discuss your case as I am a well experienced DUI lawyer regarding Kansas drunk driving laws involving refusals.

Should You Refuse?

This is a tough question. There are numerous things to consider.

First: As an attorney officer of the court I would never advise someone to break the law. However, I truly believe in the Constitution and believe the DUI refusal statute is Unconstitutional. However, it currently is against the legislated law in Kansas. Furthermore, because it is against the law, it can weigh heavily on you and make your sentencing and charging situation more severe

Second: It's not against the law to refuse if you don't have a prior DUI occurrence. However, there are still administrative penalties to your driver license after a refusal, even for a first time.

Third: If you don't refuse, they will have strong evidence against you via the BAC (blood alcohol content) results, unless of course the results show you were under the limit, in which case you should be very glad you took the test! If you don't refuse, sometimes there are ways to suppress the results, such as when the Intoxilyzer breath machine was improperly maintained or the KBI messed something up.

Fourth: If you do refuse, the jury will likely hear about your refusal and might hold it against you.

Should I Refuse The PBT?

In my opinion, you should almost always take the PBT. This is different than the Intoxilyzer or chemical tests usually administered at the station. The PBT is the smaller breath test given out in the field. The results are generally inadmissible against you in court for the DUI charge anyway. Also, if you refuse that test, it will likely provide automatic probable cause for the arrest, making the future test results or refusal that much harder to suppress. If you do refuse the PBT, it is a traffic infraction and usually has a fine of around $200.