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.
Kansas made it a crime to refuse a test in 2012, but that law was found to be unconstitutional because there is a fundamental 4th Amendment right to be free from a search of breath, blood or urine without a warrant. So, the government cannot make it a crime to refuse a test, but they will attempt to use it against you at trial and they will take administrative action to suspend your driver’s license for a refusal.