On July 1, 2012, it became a crime to refuse a chemical breath, blood, or urine test requested by an officer to determine whether you are under the influence (DUI) in Kansas. Since the officer can request anyone complete the test, refusal or noncompletion makes you a potential defendant.
In order to defend against such a charge, call The KC Traffic Lawyer today. Timothy R. Tompkins can and will use independent witnesses or examination of the government's witnesses to prove that the officer had no reasonable grounds to believe you were operating, or attempting to operate, a vehicle while under the influence of alcohol and or drugs.
The government bears the burden of proving the refusal charge against you. Because of an increased political and public outcry toward those who drink and drive, defending persons charged with a refusal is complicated, and the penalties upon conviction are the same as a DUI.
In Missouri, there are two separate proceedings initiated when a person is cited for DWI. At the same time that a person is being prosecuted criminally, a driver’s license civil administrative suit is brought by the Department of Revenue against his or her driver's license. Neither case has any bearing on the other.
After a person has failed a breath test or refused the test, the officer must serve the person with a form entitled "Notice of Suspension/Revocation of Your Driving Privileges" that has been properly filled out by the officer. This form will serve as the person's driver's license for 15 days.
Breath Test Failure
The driver/arrestee must send a request for a hearing concerning the driver's license into the Department of Revenue in Jefferson City within 15 days of the arrest. The form for requesting the hearing is at the bottom of the "Notice of Suspension/Revocation.” If the officer did not keep the driver's license for some reason, that license must be submitted to the Department of Revenue within 15 days, as well.
If the driver fails to send this piece of paper in within the time limit, his license will be automatically suspended by the Department of Revenue. If the driver or his attorney does request a hearing, the driver will be given what is called an administrative hearing. The Administrative hearing is vital to the defense of your driver’s license.
The suspension penalties will depend upon your circumstances, outlined below:
- First time failure of a test: For a driver with no alcohol-related law enforcement contacts within the previous five years, driving privileges are suspended for 30 days followed by 60 days of restricted driving privilege. The restricted license is available upon showing proof of insurance before the 30 days suspension has expired. The restriction allows a person to drive in connection with a person's business, occupation, or employment, and to and from an alcohol education and treatment program, only. This goes on the person's driving record and stays for five years.
- Second and subsequent failures of a test: Driving privileges are suspended for one year. You are not eligible for a hardship license. This goes on the person's driving record and stays for five years.
- If you refused the test: A petition for review must be filed within 30 days with a stay order to protect your driving privileges. If not, driving privileges are revoked for one year. However, if it is your first, you can apply for a hardship license after 90 days. This goes on the person's driving record and stays for five years.
- Appealing the suspension: Every driver has the right to appeal the administrative driver's license suspension to the circuit court of the county in which the arrest was made. A petition for review of a license revocation must be filed within 15 days of the date that the suspension was mailed by the director. If an appeal is taken, the matter is heard anew by a judge in the courtroom and the administrative hearing is treated as though it never happened. These appeals are usually handled by the Department of Revenue.
- Hardship license: If you have been revoked from driving in Missouri for convictions or a refusal, you may be eligible for limited driving privileges, most commonly known as a hardship license. You may apply for a hardship license to either the circuit court, your county of residence, or the Director of Revenue. There are many reasons why a hardship license may not be granted, including the fact that you have been convicted of a felony involving the use of a vehicle, the failure to pay child support, or suspension in another state. There are also many requirements concerning when a person may apply for the hardship license. For instance, a person convicted of 2 DWIs within 5 years may not apply for a hardship license until he or she has served at least 2 of the 5 years of revocation. You should consult with an attorney concerning whether you are eligible for a hardship license.
Timothy R. Tompkins is licensed in Kansas and Missouri and is a member of the National College of DUI Defense. Call the KC Traffic Lawyer before the deadline slips away.