On July 1, 2012, the Kansas Legislature’s new test refusal law criminalizing the refusal of a requested blood, breath, or urine test went into effect. Over the past 2 months, I have seen this new law rigorously enforced. Basically, if during a DUI investigation the driver refuses to submit to the officer’s request for a test, the main element of the charge is met. It is, however, important to know that a Refusal can only be charged in regard to the evidentiary chemical test. A refusal to submit to a Preliminary Screening Test – in Kansas we call it a PBT – is not a violation of this new law, but refusal of a PBT is a Traffic Infraction in my State.
The penalties for the crime of Refusal are the same as the penalties for a DUI conviction, and range from a Class A Misdemeanor up to a Felony. Since this new crime is based on the refusal to take the officer’s requested test, the driver does not have a right to speak with an attorney prior to deciding whether or not to submit to testing. It is interesting to note, that the Legislature, using it’s infinite wisdom, provided for a diversion on a driver’s first lifetime arrest for Refusal.
The one positive side to this new law is that it is designed to only apply to multiple offenders. One of the elements of this new law requires that the driver have been previously convicted/diverted for a charge of either DUI or Refusal, and that the conviction/diversion occurred subsequent to July 1, 2001.
On a side note, Kansas now allows for a Hardship license for persons who have had their driving privileges’ suspended for 12 months – this does not apply to CDL privileges. If the suspension is based on a DUI conviction or Administrative Hearing Officer’s suspension due to a test failure, the driver need only serve 45 days of the 12 month suspension prior to being eligible for the Hardship license, and need only serve 90 days of the 12 month suspension if based on a conviction of Refusal or an Administrative Hearing Officer’s suspension due to a test refusal.
It is important to know your rights concerning whether you submit to testing in Kansas. For further answers to your questions about Kansas DUI/Refusal law and administrative suspensions, contact Leslie F. Hulnick, or one of the other attorneys at Hulnick, Stang & Rapp, P.A: 316-263-7596.