The United States Supreme Court has granted review in 3 cases involving whether it is constitutional for a states to make it a crime to refuse a blood, breath or urine test. We have been waiting for the Kansas Supreme Court to decide this very issue since it heard oral arguments on this issue back in May of 2015. But it looks like the US Supreme Court is going to weigh in and decide this issue for the whole country before Kansas gets it done.
In 2012, Kansas became one of a minority of states to create a separate crime for refusing a breath, blood or urine test in a DUI case. I was one of a handful of attorneys that wrote a brief challenging whether that law is constitutional. The primary issue is whether such a law violates the 4th Amendment right to be free from unreasonable searches and seizures. A breath test is a search. An individual has the right to refuse a search and demand that the police get a warrant. Yet, overreaching law enforcement types around the country have decided to throw out the baby with the bathwater and make it a crime to invoke the protection of the constitution. I firmly believe that the United States Supreme Court is going to throw those laws out as un-American. Their ruling, positive or negative, is likely to impact Kansas DUI cases going forward for a long time.
The criminal penalties for refusing a breath test in Kansas are the same as the penalties for DUI. You can only be charged with a refusal if you have a prior DUI occurrence on your record since July 1, 2001. The first one is a misdemeanor and the second is a felony.