Refusal of Testing for Alcohol and/or Drugs

If, after being read the implied consent notice, the driver opts not to take a breath, blood or urine test, or the person is unable to submit to one of these tests, they will be considered to have refused the test. A refusal  to take breath, blood or urine test may be a positive in a Kansas DUI case because there is no way to prove that a person was over the legal limit of .08 within three hours of driving. Thus, the prosecutor must prove that a person was driving while under the influence to a degree which rendered him or her  incapable of safely operating the vehicle. A refusal eliminates the prosecution’s strongest evidence. However, many people are prosecuted and convicted of a DUI despite the absence of a test. This is an issue which an attorney must deftly handle before a judge or jury.

However, as of July 1, 2012, refusal of a test in Kansas is a crime separate from the crime of DUI. Refusal of a test in Kansas is a crime when a person refuses to submit to a t0 a test for the presence of alcohol and/or drugs and the person has a prior DUI diversion, conviction or suspension for a refusal which occurred when the person was 18 years of age or older.  In other words, if you refuse a breath test in Kansas you may likely get charged with both a DUI and the crime of Refusal of a Test. The refusal of a breath test, or for blood or urine, means that the prosecutor will have less evidence with which to prosecute the DUI case. However, with the new law, a person can be convicted of the refusal, which carries the same or worse penalties that a DUI conviction.

PENALTIES FOR REFUSING A TEST IN KANSAS:

FIRST TIME TEST REFUSAL: Conviction of a first Kansas Test Refusal is a Class A misdemeanor.

JAIL: A minimum of 90 days up to a maximum one year imprisonment.

FINE: $1,250.00 to $1,750.00. Court costs may also be between $10.00 and $150.00.

PROBATION: Probation is an option only after you have served at least 5 days in custody.After serving 48 hours of the 5 day minimum imprisonment requirement, the person may be placed on work release which allows them to go to work each day, but they must return to the jail after work. A total of 120 hours must be spent in the jail, while not at work, while on work release to satisfy the minimum custody requirement. In lieu of work release, the person may be placed on house arrest (monitored by GPS), which requires a total of 120 hours spent confined to the home. The terms of probation are just like the terms of diversion: no drinking, do not break the law, go to alcohol school, etc. So, a first time Breath Test Refusal conviction in Kansas will require you to go to jail for 2 days before you can be put on work release or house arrest.

SUSPENSION OF DRIVING PRIVILEGES: A conviction of a first time Test Refusal in Kansas results in driving privileges being suspended for a year, followed by an additional2 years of only operating a vehicle equipped with an ignition interlock device. However, after 90 days of suspension the driver can apply for a restricted license that would allow driving with an ignition interlock device installed for certain purposes, including work and school. This suspension goes on the person’s driving record.

SECOND TIME TEST REFUSAL: Conviction of a second Kansas Test Refusal is a Class A misdemeanor

IF THERE ARE NO PRIORS WITHIN 10 YEARS (otherwise it is a felony).

JAIL: A minimum of 90 days up to a maximum one year imprisonment.

FINE: $1,750.00 to $2,500.00. Court costs may also be between $10.00 and $150.00.

PROBATION: After serving 48 hours of the 90 day minimum imprisonment requirement, the person may be placed on work release which allows them to go to work each day, but they must return to the jail after work. A total of 2,160 hours must be spent in the jail, while not at work, while on work release to satisfy the minimum custody requirement. In lieu of work release, the person may be placed on house arrest (monitored by GPS), which requires a total of 2,160 hours spent confined to the home. After the minimum custody requirements are served the person may be placed on probation. The terms of probation are just like the terms of diversion: no drinking, do not break the law, go to alcohol school, etc.

SUSPENSION OF DRIVING PRIVILEGES: A conviction of a second time Test Refusal in Kansas results in driving privileges being suspended for a year, followed by an additional 3 years of only operating a vehicle equipped with an ignition interlock device. However, after 90 days of suspension the driver can apply for a restricted license that would allow driving with an ignition interlock device installed for certain purposes, including work and school. This suspension goes on the person’s driving record.


SECOND TIME TEST REFUSAL FELONY: Conviction of a second Kansas Test Refusal is a FELONY if the person has any prior convictions within 10 years, not including the prior used as a basis to enhance a current refusal to a criminal offense. In other words, the person has to have 2 priors, one of which occurred within the preceding 10 years to be charged with a felony.

JAIL: A minimum of 90 days up to a maximum one year imprisonment.

FINE: $1,750.00 to $2,500.00. Court costs may also be between $10.00 and $150.00.

PROBATION: After serving 48 hours of the 90 day minimum imprisonment requirement, the person may be placed on work release which allows them to go to work each day, but they must return to the jail after work. A total of 2,160 hours must be spent in the jail, while not at work, while on work release to satisfy the minimum custody requirement. In lieu of work release, the person may be placed on house arrest (monitored by GPS), which requires a total of 2,160 hours spent confined to the home. After the minimum custody requirements are served the person may be placed on probation. The terms of probation are just like the terms of diversion: no drinking, do not break the law, go to alcohol school, etc.

SUSPENSION OF DRIVING PRIVILEGES: A conviction of a second time Test Refusal in Kansas results in driving privileges being suspended for a year, followed by an additional 3 years of only operating a vehicle equipped with an ignition interlock device. However, after 90 days of suspension the driver can apply for a restricted license that would allow driving with an ignition interlock device installed for certain purposes, including work and school. This suspension goes on the person’s driving record.


THIRD AND SUBSEQUENT TEST REFUSAL: Conviction of a third or subsequent Kansas Test Refusal is a FELONY.

JAIL: A minimum of 90 days up to a maximum one year imprisonment.

FINE: $2,500.00. Court costs may also be between $10.00 and $150.00.

PROBATION: After serving 72 hours of the 90 day minimum imprisonment requirement, the person may be placed on work release which allows them to go to work each day, but they must return to the jail after work. A total of 2,160 hours must be spent in the jail, while not at work, while on work release to satisfy the minimum custody requirement. In lieu of work release, the person may be placed on house arrest (monitored by GPS), which requires a total of 2,160 hours spent confined to the home. After the minimum custody requirements are served the person may be placed on probation. The terms of probation are just like the terms of diversion: no drinking, do not break the law, go to alcohol school, etc.

SUSPENSION OF DRIVING PRIVILEGES: A conviction of a third time Test Refusal in Kansas results in driving privileges being suspended for a year, followed by an additional 4 years of only operating a vehicle equipped with an ignition interlock device. However, after 90 days of suspension the driver can apply for a restricted license that would allow driving with an ignition interlock device installed for certain purposes, including work and school. This suspension goes on the person’s driving record.