What Happens If You Refuse a Breathalyzer or Blood Test in Kansas?

When you see flashing red and blue lights in your rearview mirror after a night out in Topeka or Salina, panic sets in. If a Kansas police officer suspects you of driving under the influence, they will inevitably ask you to blow into a breathalyzer tube. A common myth is that if you refuse to provide a breath or blood sample, the state will not have enough evidence to convict you. In reality, Kansas law heavily penalizes those who refuse testing. Under the state's "implied consent" laws, codified in Kan. Stat. Ann. § 8-1001, just by driving on Kansas roads, you have already implicitly agreed to submit to alcohol testing if legally arrested. Refusing this test triggers severe administrative and evidentiary consequences.

Portable Breath Test (PBT) vs. Evidential Test

To understand the consequences of a refusal, you must distinguish between the two types of tests an officer will request: the roadside test and the station test.

Refusing the PBT on the Roadside

Before you are arrested, the officer may ask you to blow into a small, hand-held device on the side of the road. This is the Portable Breath Test (PBT). Under Kan. Stat. Ann. § 8-1012 and the Kansas Court of Appeals precedent in State v. Robinson, 55 Kan. App. 2d 209 (KS Court of Appeals 2017), drivers have a constitutional right to refuse this preliminary screening without penalty. Refusing the PBT is no longer a traffic infraction, does not carry a civil fine, and cannot automatically suspend your driver's license. However, law enforcement officers are legally permitted to consider your refusal alongside field sobriety test observations to help establish probable cause for an arrest.

Refusing the Evidential Intoxilyzer at the Station

Once you are arrested and transported to the police station or county jail, the officer will request a formal evidential test using a large machine (like the Intoxilyzer 9000) or request a blood draw. Before asking, the officer is legally required to read you a lengthy document known as the Implied Consent Advisory. Refusing this specific test is what triggers massive legal consequences.

The Criminal Consequences: Can They Use It Against You?

Historically, Kansas law made it a separate, standalone crime to refuse a breath or blood test, meaning you could be jailed just for saying "no." However, in the landmark case State v. Ryce, 303 Kan. 899 (KS Supreme Court 2016), the Kansas Supreme Court struck this down. The court ruled that criminally punishing someone for exercising their constitutional right to refuse a warrantless search (a blood or breath draw) is unconstitutional. Therefore, you cannot be hit with a separate criminal charge for refusing.

Criminalizing Refusal in Front of a Jury

While you cannot be charged with a separate crime for refusing, your refusal is absolutely admissible as evidence against you in your DUI trial. The prosecutor will stand in front of a jury at the Johnson County District Court, Olathe or the Shawnee County District Court, Topeka and argue that you refused the test because you knew you were guilty. They will argue that an innocent, sober person would have happily provided a breath sample to clear their name. Overcoming this assumption is a major hurdle for defense attorneys.

Administrative Penalties and License Suspension

Even if you beat the DUI in criminal court, refusing the test guarantees an immediate administrative battle. If you refuse the evidential test, the officer will confiscate your physical driver's license and issue you a Form DC-27, Kansas, Department of Revenue, Officer's Certification and Notice of Suspension. This pink or yellow sheet serves as a temporary 30-day driving permit.

Refusing the test results in a much longer license suspension than failing the test. For a first-time refusal, your license is typically suspended for one full year, followed by a mandatory period of driving with an Ignition Interlock Device (IID). You only have 14 days from the date of the arrest to request an administrative hearing with the Kansas Department of Revenue, Topeka to fight this suspension.

Step-by-Step Action Plan After a Refusal

Time is of the essence if you refused a breathalyzer in Kansas.

• Step 1: Read the DC-27 Form Carefully. This form outlines your rights and deadlines. Do not lose it; it is your temporary license to drive for the next 30 days.
• Step 2: Request an Administrative Hearing. You must mail a written request for a hearing (which is free of charge) to the Kansas Department of Revenue, Topeka within 14 calendar days to stop the automatic suspension of your license.
• Step 3: Hire a DUI Defense Attorney. Fighting a refusal case requires aggressively challenging the officer's probable cause. You can find a local attorney experienced in Kansas implied consent laws through our US Attorney Directory.
• Step 4: Prepare for the Hearing. Your lawyer will subpoena the arresting officer to the administrative hearing to question whether they properly read the implied consent advisory before asking for your breath.

Frequently Asked Questions (FAQ)