Refusal of Breathalyzer, UA, or Blood Test
Under Kansas's implied consent law, all Kansas drivers automatically consent to blood, breath, and urine tests, by the mere fact that they are driving in Kansas. In fact, K.S.A. 8-1001 imposes severe administrative sanctions on a suspect's driver's license if they refuse to take a chemical test. Before the officer is allowed to ask for a test, the driver generally must have been lawfully arrested for DUI, which usually requires probable cause. Recently, the implied consent laws have come under scrutiny and parts of it have even been declared Unconstitutional by the Appeals Courts in Kansas.
While refusals used to just have civil ramifications on a person's license, on July 1, 2012, Kansas actually made it a crime to refuse to take a test. K.S.A. 8-1025 states that it is illegal to refuse a test and the consequences are just a serious as the DUI charge itself. In other words, if you refuse to blow at the station in the Intoxilyzer 8000, you will now potentially be dealing with double the amount of fines and jail time. It should be noted, that it is not a crime if the suspect has no past for DUI in their criminal history. As a DUI criminal defense lawyer, I have filed numerous motions regarding the Unconstitutionality of this new law. In fact, these legal issues remain highly contested. However, it is currently the law.
Should I refuse to take a breath test on the Intoxilyzer 8000?
If you take the test, the prosecutor will then likely have incriminating test results as evidence to be used against you at trial, making it much easier to convict you if the results are over .080.
If you refuse the test, your license will likely be suspended for a year. In comparison, your license will only be suspended for 30 days, if it's your first DUI and you test over .080 but under .15. If you refuse, you aren't eligible to have your license modified until after 90 days. If you take the test and fail, you are likely eligible for modification after just 45 days.
If you refuse the test, the fact that you refused will likely be evidence against you at trial.
If you refuse to take the test, you will likely be charged with an additional crime for refusing. However, if you do not have any criminal history of a DUI, then it is not a crime to refuse.
If you did take the test, as a Kansas drunk driving attorney, I can see if they followed correct protocol and procedure when administering the test. In comparison, if you refused, things like whether the machine was certified or whether that waited a full 20 minutes during the deprivation period, do not matter.
Should I refuse to take a breath test on the PBT? No.
The PBT is the little handheld device the officers carry with them in their patrol cars. In comparison, the Intoxiilyzer 8000 is a larger computer device which is typically located at the police station. However, I have cases where the Intoxilyzer 8000 was on site, in a van. This is typical at sobriety check points.
If you refuse the PBT, you will be issued a traffic ticket. Not a big deal, but why cause more trouble?
If you take the PBT, the results may help establish probable cause for your arrest. But if you refused, there will likely be automatic probable cause for your arrest. So, you might as well take the PBT.
The results of the PBT are not admissible in court for purposes of determining whether you are guilty of DUI.
Implied Consent Notices
When law enforcement request a test on the Intoxilyzer 8000, UA, or blood test, they are required to provide the driver with the notices. This notice must be provided both orally and in writing. It' called the DC-70 implied consent notices. Sometimes the police fail to properly provide these notices, and led to the suppression of evidence for my clients. This can have significant effects for a driving under the influence or alcohol or drugs charge.
"Required" Notices for PBT
Kansas Statute states that notices are to be provided before the PBT is administered. However, the statute has no teeth as there is no remedy for the Defendant if the notices are not provided.