The handheld breath test offered on the roadside isn’t the same as the chemical test requested after an arrest. In Kansas, the distinction matters because the two carry very different consequences if refused.
Since 2005, we have represented criminal-defense clients across central and northeastern Kansas. After a test refusal, the first priorities are identifying which test was requested and preserving the deadline to challenge a license suspension.
Roadside & Post-Arrest Tests Have Different Consequences
The setting, timing, and officer’s advisement help establish whether a test was a voluntary roadside screening or part of the Kansas implied-consent process.
During a traffic stop, an officer may ask a driver to perform field sobriety tests or blow into a handheld preliminary breath test device. These roadside tests are voluntary under Kansas law and commonly form part of the investigation before an arrest. They aren’t the final chemical test used to determine a driver’s alcohol concentration.
After an arrest, an officer may request an evidentiary breath, blood, or urine test. Before doing so, the officer must advise the driver of specified consequences, including that refusal results in a one-year suspension of driving privileges.
The officer often documents this advisory through the DC-70 form. When reviewing the paperwork, look for the DC-70, arrest report, citation, and any document showing whether the officer requested testing on the roadside or after the arrest.
A Refusal Triggers a Separate License Case
Refusing evidentiary testing starts an administrative license suspension process with the Kansas Department of Revenue. This proceeding is separate from the criminal DUI case, so a driver may need to address both matters at once.
For a first occurrence, refusal brings a one-year suspension followed by a two-year ignition interlock device restriction. An ignition interlock device requires a breath sample before the vehicle will start and may require additional samples while it’s being operated.
Prior occurrences extend the interlock restriction that follows the one-year suspension:
- A second refusal carries a three-year interlock restriction.
- A third refusal carries a four-year interlock restriction.
- A fourth refusal carries a five-year interlock restriction, while a fifth or subsequent refusal carries a ten-year restriction.
These are administrative consequences, not the criminal sentence for a DUI charge. The criminal case concerns whether the state can prove driving under the influence. The Kansas Department of Revenue process concerns driving privileges and related restrictions.
Refusal Doesn’t End the DUI Investigation
Refusal doesn’t prevent the state from pursuing a DUI allegation. Kansas law allows the state to introduce the refusal as evidence at a trial arising from operating or attempting to operate a vehicle while under the influence.
Kansas no longer treats refusal by itself as a separate criminal offense. It can still trigger administrative license consequences, however, and doesn’t erase other evidence an officer collected, such as driving observations, statements, field sobriety testing, or video footage.
In some circumstances, officers may seek a search warrant for a blood draw after a refusal. Kansas law also permits directed blood testing in limited statutory circumstances involving death or serious injury. Testing obtained under a warrant raises separate questions about the warrant, collection process, and handling of the sample.
Details That Shape a Refusal Review
The events before, during, and after the officer read the implied-consent advisory can affect both the license proceeding and the DUI case.
The Advisement Given
Kansas law requires specific notice before an officer requests evidentiary testing. The language used, the timing of the advisement, and the documents provided to the driver can matter when reviewing a refusal-based suspension.
An Inadequate Sample
Failure to provide an adequate breath sample as directed is generally treated as a refusal. A driver can raise a physical inability caused by a medical condition unrelated to alcohol or drugs, so record any breathing issue, injury, or medical condition that affected the attempt.
A Request for Counsel
Kansas law doesn’t provide a constitutional right to speak with an attorney before deciding whether to submit to post-arrest testing. The request for counsel, the officer’s response, and the timing of events may still be relevant facts to document accurately.
We review the circumstances surrounding the request and statutory advisory for procedural defects. Attorney Andrew Vinduska holds the ACS-CHAL Forensic Lawyer-Scientist Designation, awarded in June 2024, concerning breath, blood, and drug-testing evidence.
Act Quickly After a Kansas Test Refusal
The most time-sensitive step is protecting the opportunity for an administrative hearing. A driver has 14 days after a DUI arrest to request a hearing on the suspension. Without a timely request, the suspension becomes automatic.
Gather and keep documents that help reconstruct the event:
- The citation, notice of suspension, and release paperwork.
- The DC-70 advisory form and any test-related paperwork.
- A written timeline of the stop, arrest, testing request, and release.
Write down details while they’re fresh, including where the officer first requested a test, what was said about the consequences, whether you attempted to provide a sample, and whether officers discussed a blood test or search warrant. These details can distinguish a voluntary preliminary breath test from an evidentiary test requested after arrest and identify issues for review.
The immediate goal is to preserve the administrative hearing opportunity while reviewing the criminal allegation separately. Addair Law handles DUI defense for clients throughout Kansas and offers consultations in English and Spanish, including virtual meetings. To discuss the arrest and refusal, call (785) 645-2732.