Saying no to a breath test may seem like a way to keep a BAC number out of a DUI case. But in Kansas, the decision can create consequences of its own, and the first question is which test the officer asked you to take.

Refusing a breathalyzer test in a Kansas DUI case at the roadside is legally different from refusing an evidentiary breath test after an arrest. That distinction can affect your driver’s license, the evidence prosecutors may use, and what you need to do next.

Irigonegaray & Revenaugh represents people facing DUI allegations in Topeka and throughout Kansas. We understand that you may have refused because you were confused about the test, concerned about the result, or simply did not understand the difference between the requests. We can review the stop, the testing procedure, and the separate administrative case involving your driving privileges.

Contact us today to learn more about your legal options.

Kansas uses two different types of breath testing in a DUI investigation. A preliminary breath test is given during the roadside investigation to help an officer decide whether to make an arrest. An evidentiary breath test is administered later and is the formal chemical test used to measure alcohol concentration in a DUI case.

The consequences of a Kansas DUI breath test refusal depend on which test you declined.

Refusing a Roadside Preliminary Breath Test

A preliminary roadside breath test is an investigative tool. Kansas law allows an officer who reasonably suspects impaired driving to request the test to help decide whether to make an arrest and whether to request a formal chemical test under Kansas DUI law.  

You may refuse to do the test. The officer may rely on driving behavior, field sobriety testing, statements, physical observations, and other evidence to determine whether an arrest is justified. If an arrest follows, the officer may then request the evidentiary breath test, which carries separate consequences for refusal.

Refusing an Evidentiary Breath Test

An evidentiary breath test is the formal chemical test used to measure alcohol concentration for a DUI investigation. Kansas law allows an officer to require one or more chemical tests when the officer has probable cause to believe:

• You committed a DUI.  
• You drove a commercial vehicle with alcohol or drugs in your system.
• You are under 21 and drove or attempted to drive with alcohol or drugs in your system.

One additional requirement must also be met. You must either have been arrested or taken into custody for a state, county, or city violation, or have been involved in a crash that caused property damage, injury, or death.

When these requirements are satisfied, the officer may require an evidentiary chemical test. Unlike the preliminary roadside breath test, refusing this formal test carries legal consequences, which we discuss below.

Implied consent is the legal framework Kansas uses for chemical testing in DUI investigations. By operating or attempting to operate a vehicle in Kansas, you become subject to the state’s chemical-testing rules when the statutory requirements are met.

In other words, an officer does not need you to sign an agreement beforehand to consent to a breath test. Kansas law allows the officer to request an evidentiary test once there is probable cause to believe you committed DUI and you have either been arrested or taken into custody, or were involved in a crash causing property damage, injury, or death.

Before requesting the evidentiary breath test, the law enforcement officer must give you both oral and written notice about the testing process. The notice must explain that refusing the test may be used against you at a DUI trial or hearing and must advise you of the legal consequences that follow a refusal.

Those consequences can affect both your driving privileges and the evidence available in the DUI case, which we discuss next.

Yes, depending on the test, refusing a breath test has consequences in Kansas.  

Kansas currently imposes no separate statutory penalty for refusing a preliminary roadside breath test. The preliminary test is used to help an officer decide whether to make an arrest and request further chemical testing.

The consequences become much more significant when you refuse the formal evidentiary breath test requested under Kansas DUI law. Before requesting that test, the officer must give you oral and written notice that refusal will:

• Result in a one-year suspension of your driving privileges and
• May be used against you at a DUI trial or hearing.

Refusing the evidentiary breath test results in a one-year suspension of your driving privileges. Once that suspension ends, Kansas requires an ignition-interlock restriction. For a first occurrence, the restriction lasts two years.

For later occurrences, the consequences become more severe:

• Second occurrence: One-year suspension, followed by a three-year ignition-interlock restriction.
• Third occurrence: One-year suspension, followed by a four-year ignition-interlock restriction.
• Fourth occurrence: One-year suspension, followed by a five-year ignition-interlock restriction.
• Fifth or subsequent occurrence: One-year suspension, followed by a ten-year ignition-interlock restriction.

A refusal can therefore affect both your ability to drive and the criminal DUI case. Even without a breath-test result, prosecutors may introduce evidence that you refused the requested test and rely on other evidence from the stop and arrest to pursue the charge.

Refusing an evidentiary breath test can affect your driving privileges before the DUI case itself is resolved, and the refusal may become part of the evidence used against you. That makes it important to understand exactly which test you refused, whether the officer followed Kansas’s testing requirements, and what deadlines now apply. Refusing a breathalyzer test in a Kansas DUI case does not mean you have lost the ability to challenge what happened.

Irigonegaray & Revenaugh has more than 60 years of combined legal experience representing people facing difficult legal problems in Kansas.

We understand that a DUI arrest can leave you concerned about your license, your record, and what happens next. Our attorneys will listen to what happened, review the circumstances surrounding the stop and testing request, and explain your options under Kansas law.

Contact Irigonegaray & Revenaugh for a free consultation and a clearer understanding of your next steps.