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Effective July 1, 2012, Refusal of the Intoxilyzer Test in Kansas is a CRIME!

If you have read all of the information on my web site regarding DUI defense, you know that refusal of the Intoxilyzer Test at the police station will generally afford a driver fact defenses to the charge of DUI that would not be available in the face of an admissible Intoxilyzer test result.  The Kansas Legislature has consistently increased the administrative penalties associated with Breath Test refusal as a means of discouraging drivers from refusing the Intoxilyzer Test.  Effective July 1, 2012, refusal of the Intoxilyzer Breath Test at the police station is a criminal offense.  No longer is refusal of the breath test limited to the possibility of an extended term of driver’s license suspension or ignition interlock requirement.  Now, if you refuse the Intoxilyzer Breath Test at the police station, you could be sentenced to jail.

The criminal penalties for refusal of the Intoxilyzer Breath Test are essentially the same as the penalties for conviction of the underlying DUI offense:

On a first conviction, refusal of the Intoxilyzer Test is a class A, nonperson misdemeanor. The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,250 nor more than $1,750. The person convicted shall serve at least five consecutive days’ imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days’ imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 120 hours of confinement. Such 120 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to K.S.A. 2011 Supp. 21-6609, and amendments thereto, to serve the five days’ imprisonment mandated by this subsection only after such person has served 48 consecutive hours’ imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 120 hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 120 hours;

On a second conviction, refusal of the Intoxilyzer Test is still a class A, nonperson misdemeanor, provided the person’s prior conviction os more than 10 years old. The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,750 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days’ imprisonment. The 90 days’ imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 2,160 hours of confinement. Such 2,160 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to K.S.A. 2011 Supp. 21-6609, and amendments thereto, to serve the 90 days’ imprisonment mandated by this subsection only after such person has served 48 consecutive hours’ imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 2,160 hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 2,160 hours;

If the driver has a prior alcohol conviction within the past 10 years, the second conviction for refusal of the Intoxilyzer Test is a nonperson felony. The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,750 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days’ imprisonment. The 90 days’ imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 2,160 hours of confinement. Such 2,160 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to K.S.A. 2011 Supp. 21-6609, and amendments thereto, to serve the 90 days’ imprisonment mandated by this subsection only after such person has served 48 consecutive hours’ imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 2,160 hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 2,160 hours; and

On a third or subsequent conviction, refusal of the Intoxilyzer Test is a nonperson felony. The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days’ imprisonment. The 90 days’ imprisonment mandated by this subsection may be served in a work release program only after such person has served 72 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 2,160 hours of confinement. Such 2,160 hours of confinement shall be a period of at least 72 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to K.S.A. 2011 Supp. 21-6609, and amendments thereto, to serve the 90 days’ imprisonment mandated by this subsection only after such person has served 72 consecutive hours’ imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 2,160 hours of confinement within the boundaries of the offender’s residence.  Any exceptions to confinement within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 2,160 hours.

Refusal of the Intoxilyzer Test may be a valid strategic decision to make if you have absolutely NO prior alcohol related arrests, convictions or Diversions anytime anywhere, ever.  But now, because refusal of the Intoxilyzer Test carries the exact same criminal penalties as the underlying DUI charge on second and subsequent occurrences, it does you very little good to refuse the test.  You would be better off to submit to the test and explore forensic challenges to the test result or administrative challenges to the admissibility of the test result.

Watch this video to learn how Paul Cramm defends DUI and DWI defense and to see why you need his representation in your Kansas City Drunk Driving case.

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If you are facing a second or subsequent DUI charge, contact my Overland Park law office at (913) 322-3265 immediately to discuss the best DUI defense available in your situation.  I represent clients accused of DUI and DWI throughout the Kansas City Metro area including the municipalities of Johnson County, Kansas: De Soto, Gardner, Leawood, Lenexa, Merriam, Mission, Olathe, Overland Park, Prairie Village and Shawnee.

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