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To Take the Test or NOT Take the Test-- That is the Question?

Posted by Chris Kopecky on Dec 23, 2013 | 0 Comments

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Breath test

The question we, as traffic lawyers, seem to get more than any other, is if I am pulled over for a DUI, should I take the breath test (at the station)?  The short answer to that question is, it depends.  Sounds just like a lawyer doesn't it?  Well unfortunately, it is the only answer that makes any sense.

Let me explain.  First of all, the general rule is if you think you can pass the test, you should take the test.  The reason why, is that usually the civil (driver's license) penalties are more severe if you refuse the test than if you take the test and fail.  This is true in both Kansas and Missouri, atleast on a first offense.    However, there are exceptions (see below).

1st Offense:

  • MO--  Take test and fail means 30 day suspension and 60 restricted license for school/work.
  • MO--  Refuse the test means automatic 1 year suspension but can apply for hardship license after 90 days for work.  (Exceptions:  Jackson, Clay, and Cass counties along with some counties in St. Louis Metro area have a special deal at this moment for 1st time offenders who refuse the test to allow them to potentially keep their license through a diversion program and keep their driving records clean.  This may go away any day but is a great opportunity for 1st time offenders who did refuse to keep everything off of their records.)
  • KS--  Take test and fail (.08-.14 BAC) means 30 day suspension and 180 days ignition interlock.
  • KS--  Take test and fail (over .15 BAC) means 1 year suspension and 1 year ignition interlock (but should be able to get “hardship license” with ignition interlock after 45 days).
  • KS--  Refuse the test means 1 year suspension and 2 years ignition interlock (but should be able to get “hardship license” with ignition interlock after 90 days).

2nd Offense:

  • MO--  Take test and fail means automatic 1 year suspension (and possibly 5 years revocation if within 5 years since last one with possible hardship after 2 years).  Court will likely order ignition interlock some amount of time dependent on how bad the test result.
  • MO--  Refuse the test means automatic 1 year revocation.
  • KS-- Take test and fail (.08-.14 BAC) means 1 year suspension and 1 year ignition interlock (but should be able to get “hardship license” with ignition interlock after 45 days)
  • KS-- Take test and fail (over .15 BAC) means 1 year suspension and 2 year ignition interlock (but should be able to get “hardship license” with ignition interlock after 45 days)
  • KS--  Refuse the test means 1 year suspension and 3 years ignition interlock (but should be able to get “hardship license” with ignition interlock after 90 days).

If you have a 3rd offense or greater, or if you have a CDL, we will not discuss it here and you can contact our office for details.  The other thing that is important to know is that where you are licensed is as important as where you are arrested.  Because Kansas City is divided into two different states, there are some strategies that may be helpful.  This is also the case with St. Louis Metro area.  Where you are arrested will affect your driving privileges in that state even if you aren't licensed there and even if you aren't affected anywhere in any other state for the most part.

So these are the key takeaways:  First, don't drink and drive.  Second, if you are arrested in Missouri, the refusal penalties may not justify taking the test, unless you are in a county besides Jackson, Clay, or Cass, and it is your first offense.  Third, if you are arrested in Kansas, the penalties for not taking the test are much more severe at every level in terms of the length of time for an interlock device being mounted on your car, but new laws in Kansas allow you to drive with the device as soon as 45 days after being suspended for a test failure and as soon as 90 days on a refusal.   So how was that?  As clear as mud?

OK,  now it's time for my disclaimer.  None of this is intended to give legal advice and none of this should be relied on when you are stopped for a DUI or DWI.  This is for informational purposes only and there is no attorney client relationship formed by virtue of this article.  Please feel free to call our office for more specific information about your particular situation.  We'd be happy to give you a free consultation and let you know your rights for your particular set of circumstances.

About the Author

Chris Kopecky

Christopher E. Kopecky. holds the highest rating (A-V) an attorney can hold for competency and integrity, and has done so for over a decade (Martindale Hubbell and Lawyers.com). Chris Kopecky is the founder and lead counsel of the Traffic Lawyers of Kopecky Law, P.A. He is a teaching lawyer. He is a professor of law at several colleges, including Avila University and Rockhurst University, where he has been teaching litigation for over 12 years.

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Kopecky Law, P.A.

For nearly two decades, The Traffic Lawyers of Kopecky Law, P.A. have represented thousands of clients in various traffic matters ranging from speeding tickets to complicated DUI/DWI cases.

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Whether you are charged with possession of marijuana or some other drug case, charged with shoplifting or theft, or were pulled over for DUI or DWI, we can help you. Call us at (816)268-8886 in the Kansas City Metro area or (855)DUI-ATTY everywhere else.