To Blow or Not to Blow

Ah, that is the question. It used to be a very easy question with only one answer NO! Both Kansas and Missouri operate under a per-se intoxication standard. It is simply against the law to operate a vehicle (or to even 'attempt' to operate a vehicle) at or above .08% blood alcohol concentration. This means that if the prosecutor is able to introduce evidence that the driver's blood alcohol concentration was at or above .08% alcohol within 2 hours of operating (or even 'attempting' to operate) a vehicle, the driver is per-se "guilty" of Driving Under the Influence. Nothing else matters: it doesn't matter how clear and articulate the driver's speech was; it doesn't matter how well the driver performed the Standardized Field Sobriety Tests; it doesn't really matter how well the person actually drove the vehicle prior to the stop. Of course, ALL of these issues may be relevant to the officer's "probable cause" to make the arrest, but they do not off-set the per-se blood alcohol concentration.

Obviously, an Intoxilyzer test result is the most readily available evidence to satisfy this per-se burden. If the driver refuses to submit to the Intoxilyzer test, the prosecutor is effectively deprived of this black and white per-se evidence. Sure, the prosecutor can still proceed with DUI charges against the driver, but without that test result the prosecutor must prove that the driver had consumed alcohol and that the alcohol rendered the driver "incapable of safely operating the vehicle." As you can imagine, unless there was a traffic accident associated with the DUI arrest, the 'safe operation' standard can be much more difficult for the prosecutor to establish. So, the most logical answer to the question "To Blow or Not to Blow" would appear to be "Don't Blow!"

But the times have been a changin' for the past several years and the laws have been revised to strongly discourage refusal of the Intoxilyzer Test in DUI cases. Specifically, in Kansas, the Department of Revenue reserves the right to suspend or revoke your Driver's License for either failure of the Intoxilyzer Test by providing a breath sample that tests positive for alcohol at or above .08% or for outright refusal of the Intoxilyzer Test. Recent amendments to the "implied consent" law have dramatically extended the term of suspension for refusal as opposed to failure of the Intoxilyzer test.

For example, on a true "first offense" DUI, if you submit to the Intoxilyzer test and fail it by providing a sample of breath that tests positive for alcohol at .08% or above but less than .15%, the Department of Revenue reserves the right to suspend your driver's license for 30 days followed by a period of restricted driving to and form work or school only for a period of 330 days. However, on a true "first offense" DUI, if you refuse the Intoxilyzer test outright, the Department of Revenue reserves the right to suspend your driver's license for a full year. That's 12 times the suspension for refusal as opposed to mere failure of the Intoxilyzer test. See my "Kansas Driver's License Suspension" page for more information.

Also, keep in mind that the Administrative Driver's License Hearing is separate and distinct from the court proceedings on the underlying DUI charge. In other words, it is entirely possible to "win" the DUI at the court level, but still suffer a driver's license suspension at the conclusion of an unsuccessful administrative hearing.

So, what's the answer? Should a driver submit to or refuse the Intoxilyzer test? That depends on the priorities and objectives of each individual driver. Suppose Driver #1 has a high paying job that requires military security clearance and ANY criminal conviction would result in loss of security clearance and loss of employment. Let's say this driver lives downtown walking distance from where she works. Obviously, avoiding a criminal conviction is MUCH more important to her than a possible inconvenient period of driver's license suspension. Depending on the facts and circumstances of the traffic stop that resulted in his DUI charge, she may be in a MUCH better position strategically speaking to have refused the Intoxilyzer test in order to give her lawyer the best possible chance to "win" the underlying DUI case. The "cost" of this strategy is that Driver #1 faces the risk of a much longer period of driver's license suspension.

Suppose Driver #2 is an equally well-paid foreman for a successful construction company with numerous job sites across the metro area. His employer certainly wouldn't be 'thrilled' about a possible non-person misdemeanor conviction on this driver's criminal record, but a single misdemeanor conviction wouldn't automatically cost him his job like it would for Driver #1. However, Driver #2 needs to be able to visit numerous job sites throughout the city on very short notice. It's not the misdemeanor conviction that would cost him his job, it's the loss of a valid driver's license that would do him in. This driver may be MUCH better off to submit to the Intoxilyzer test knowing that it will likely make the court case much stronger for the prosecutor, but also knowing that he can avoid a significantly longer term of driver's license suspension.

In short, there is no black-and-white answer to the question "To Blow or Not to Blow?" It depends entirely on the objectives and priorities of each driver as well as the evidentiary facts and circumstances of each case. In general terms, refusal of the Intoxilyzer test will provide a good lawyer with more options at trial at the expense of a potentially longer term of driver's license suspension.

The most important thing to remember is to make the time to consult face to face with an attorney before making any hiring decisions in any DUI case. Ask very specific questions and take notes. Compare the answers and information provided by the lawyers you consult and make an informed decision about your representation.