DUI Implied Consent Laws in Kansas

If you are arrested on suspicion of DUI in Kansas and asked to provide a blood, breath, or urine sample by law enforcement, you do not have the legal right to refuse.

Essentially, by driving your car, motorcycle, or another vehicle on Kansas roads, you have already given your consent to a chemical test under the “implied consent” law that has been adopted in all States.

Depending on your criminal history, refusal may be treated as a criminal offense or at the least, you will receive an immediate license suspension.

The good news is that you always have the right to a defense.

If you have been charged under the implied consent laws in Kansas, the DUI attorneys at ITR Law in Topeka can help avoid this one slip-up from costing you too dearly.

What does implied consent mean in Kansas?

The premise for the implied consent law is simple: driving in Kansas is a privilege, not a right. As such, in return for the privilege of being allowed to drive, you agree to take a chemical test upon request if you have been arrested.

Since 2012, it has been a crime to refuse to take a test in Kansas for drivers with at least one prior alcohol-related driving occurrence.

Considering the relative simplicity of the law, it is surprising how many drivers get caught out, unaware of the consequences of refusing a breath, blood or urine test for drugs or alcohol.

What tests are required following a DUI stop?

When you are stopped by law enforcement on suspicion of a DUI, it is NOT mandatory to submit to a field sobriety test.

You can legally refuse to blow into a breathalyzer by the roadside. However, if the police officer has good reason to believe that you are intoxicated or your driving was impaired in any way, you will be arrested and taken to the police station.

Here, you will be asked to submit to a chemical test – breath, blood or urine test. This is compulsory.

What will happen to you before, during and after testing?

Law enforcement officers must follow a strict set of procedures and obligations when arresting and charging someone for DUI.

Before requesting that a driver take a chemical test at the police station, a written and oral notice of the facts regarding testing for alcohol or drugs must be provided to you.

This includes notification of the following:

• You have no right to consult with an attorney as submitting to the test is mandatory
• You have no constitutional right to refuse the test
• The consequences of a refusal include losing your driving privileges for at least a year and being required to install an ignition interlock device (IID)
• After completing the test, you are free to get additional testing done at a place of your choice

A form called a DC-70 will be handed to you and you will be required to read it in the police officer’s presence as he or she reads it out to you. It covers the above information.

You will then be asked to submit a breath, blood, or urine sample (or a combination) according to the instructions of the police officer. More than one test may be requested.

After you have completed the test(s) you are entitled to get an independent test performed at a licensed medical facility. However, this can be challenging as many arrests happen late at night when hospitals are generally only open for emergency care.

Consequences of DUI breath test refusals

For some drivers unaware of the law, refusal of a breath test makes sense because it will deprive the prosecution of the evidence to prove intoxication.

However, if the law and the consequences of refusing a breath test are properly explained and you still refuse the test, a judge or jury may assume that your refusal was due to intoxication and that you were aware of this.

In such cases, it is almost as likely to result in a conviction as if you had taken the test and failed.

The most immediate consequence of a breath test refusal is an administrative license suspension of up to one year with no eligibility to have your license modified until after 90 days.

While you may be able to escape a criminal conviction, the license suspension for breath test refusal is harsher than if you were convicted.

How is this legal?

It seems strange to many drivers that implied consent is legal, allowing a police officer to make a judgement about a driver’s use of alcohol and implement an immediate administrative penalty without any proof.

Questions have been raised about the constitutionality of the law and whether it breaches the search and seizure rights of drivers.

While the law remains hotly contested, the Kansas courts (and elsewhere around the U.S.) have upheld it consistently. Take the implied consent law seriously if you are arrested.

Are there viable defenses for breath test refusal?

Any charge related to DUI has a viable defense – even if the evidence against you seems overwhelming,

With DUI charges, the actions of police officers, the reliability of equipment, your constitutional rights and other evidence can all be called into question.

However, because you have no constitutional right to refuse a test, your options for defenses for breath test refusal may be more limited.

We may be able to argue that you were physically unable to take the test, you misunderstood the request, or that you thought you could agree to take the test after speaking to a lawyer.

Note that the expungement waiting period for a first-time chemical test refusal is now only five years (instead of 10) so even if it is not your first alcohol-related crime, you have a chance of escaping a conviction.

An experienced DUI attorney will advise you of your options but there is always hope that you can escape the harshest consequences of refusing a test.

Have you been charged with breath test refusal?

If you have lost your license for refusal of a chemical test under Kansas implied consent laws, speak to the lawyers at ITR Law for a free case evaluation and advice on your options.