Choosing not to submit to a test is on the verge of becoming even more painful for drivers though. A bill passed by the Kansas Senate and pending in the House would make refusing to take a breath, blood or urine test a misdemeanor. If the House passes the bill (the vote in the senate was 37-3 in favor), drivers who refuse to take a test for a first time will face two days in jail or 100 hours of community service with a fine of up to $1,000.
But in the same week that four inmates - including a convicted killer - escaped from from a county jail where they were being kept due to overcrowding in the state's prisons, Kansas defense attorney Jay Norton questions why officials would want to potentially flood jails with drivers who refuse breath tests.
"So, we have some serious-ass criminals in the county jail, because we don't have room for them in the prisons where they belong. So what this new legislation would like to do is add thousands of more people to the county jail system at a cost of $2 million," Norton says. This law, he says, will further congest the Kansas court system, which recently announced furlough days due to funding shortfalls.
Plus, Norton says, if the law passes, it's going to "unleash a tidal wave of litigation" over what constitutes a refusal. "If some guy only speaks Chinese, and they come in and ask him in English, 'Will you take a test?' And he doesn't answer, has he refused the test?" he says.
And there's the matter of religious beliefs on drawing blood. "Certain religions don't think it's cool to have your blood withdrawn or have your bodily integrity invaded by needles," he says. "So, there's all kinds of thorny issues that this raises."
If passed, the law would go into effect on July 1. Norton says that's when the legal battle over criminalizing test refusals will likely begin its two-year march to the Kansas Supreme Court. For now, Norton says defense attorneys who handle DUI cases are preparing themselves for increased workloads.
"I can tell you that if I have someone walks into my office on July 2 who is charged with refusing a breath test, I'm going to be filing a 40-page brief raising all those issues," he says.
Read the text of the bill here.