Kansas DUI: Refusal to Take a Blood, Breath or Urine Test

In Kansas, if you get pulled over for a DUI and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

Kansas law requires you to take a blood, breath, or urine test if you are arrested for a DUI. Kansas’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). You may be asked to take more than one test, and you must take all the tests an officer asks you to take or accept the penalty for refusal. The test or tests must be taken within two hours of your arrest, and the officer gets to choose which ones you take.    

You could be arrested for a DUI even if you didn’t make a car move. Even if you merely attempt to operate a vehicle while you are under the influence of drugs or alcohol, then you face the same consequences as if you had been driving. An attempt to operate can mean, for example, that an officer has not seen you drive, but catches you stumbling out of a car and smelling of alcohol. To find out more about the meaning of attempt to operate a vehicle, you can read the case State v. Stevens, 172 P.3d 570 (Kan. 2007).   

You can read Kansas’s implied consent law in the Kansas Statutes Annotated 8-1001.

Refusing to Take the Test

 

1st Offense

2nd Offense

3rd Offense

Refusal to take test

1 year license suspension followed by 2 years driving only with an IID (ignition interlock device)

1 year license suspension with 3 years driving only with an IID

1 year license suspension with 4 years driving only with an IID

If you are arrested, the officer must tell you and give you written notice that you do not have a constitutional right to refuse a test, that you can’t speak to an attorney beforehand, and that your license will be suspended if you refuse. If this is your first refusal, your license will be suspended for one year. The suspension lasts for two years for your second refusal, and three years for your third. The penalty jumps to a ten-year suspension for your fourth refusal and if you find yourself refusing for the fifth time, then you lose your license permanently.

In most situations, if you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so. However, the state may administer the test if you are unconscious or dead.

The penalties for refusing to submit to a chemical test are also found in the Kansas Statues Annotated 8-1001.

Should You Refuse to Take a Mandatory DUI Test in Kansas?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DUI. In Kansas, the consequences for a DUI could potentially include up to six months in jail and $1000 in fines for a first offense. Although the court could order community service instead of a jail time, you can’t predict when a judge will give you a lenient sentence. Also, refusing the test does not guarantee that you won’t be convicted of a DUI – you could be found guilty of that offense even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

(Check out our blood alcohol content chart for an estimate of how many drinks it takes to get to the legal limit.)

Get Help With Your DUI

If you have been arrested on a DUI charge in Kansas or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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