DUI -- No PBT or blood test

[ksjane]

What is the name of your state? KS

Can they charge you with a DUI if there were no breathalyzers (PBT) or blood tests done?

Does anyone know what the penalties are if you refuse to take a blood test?

Thanks.What is the name of your state?

[BigMistakeFl]

Did you refuse to take the test, or not? If you refused, yes these prosecutions happen all the time. What is the story behind your post? What caused the stop?

[ksjane]

Oops, I forgot about my old post. They can fine you if you refuse the PBT, and they can suspend your license for 1 year for first offense if you refuse blood test. However, what if they dont give you the blood test or the opportunity to refuse. Heres the situation:
My BIL was speeding. He got pulled over for speeding, they wanted him to take a breathalyzer. He refused. They took him to jail for obstruction. Wrote him a ticket for speeding and refusal to take PBT. All this I witnessed. When he got to jail they booked him and he was in a holding cell until he was bonded out. He says they never said a word to him. So they didnt take the blood test nor ask him to take it nor give him the opportunity to refuse to take it, so NO he didn't refuse. So can they just charge him with DUI for refusing PBT? That doesn't seem right. If that were the case, they could pretty much make anyone pay the consequences of having a DUI without ever really proving whether or not they were actually DUI. Make sense????
Thanks.

[BigMistakeFl]

It would make sense except for the fact that your BIL refused to take the breath test. I see a refusal there, but I'm not in Kansas. Anyone else see anything other than refusal here?

[efflandt]

See page 25 of [url]http://www.ksrevenue.org/pdf/dlhb.pdf[/url]

"A refusal to submit to and complete any test requested by a law enforcement officer will result in a driver license suspension of 1 year."

You said "He got pulled over for speeding, they wanted him to take a breathalyzer. He refused." Sounds like he meets the requirements for a 1 year suspension.

[Joi in Arizona]

I am not positive, but I think that refusing to take field sobriety tests or the PBT is not grounds for suspending your license. It is refusing a BAC test or blood test once at the station that will be grounds for suspension. A PBT can only be used to show the officer had probable cause to believe the driver was intoxicated. The results can not be introduced in court. I don't think refusing to take a PBT can be used in court the same way refusing to take a BAC test or blood test once at the station can be used.
I am not familar with every states DUI laws or the case law that dictates certain outcomes at trial.

[Zigner]

Originally Posted by Joi in Arizona

I am not positive, but I think that refusing to take field sobriety tests or the PBT is not grounds for suspending your license. It is refusing a BAC test or blood test once at the station that will be grounds for suspension. A PBT can only be used to show the officer had probable cause to believe the driver was intoxicated. The results can not be introduced in court. I don't think refusing to take a PBT can be used in court the same way refusing to take a BAC test or blood test once at the station can be used.
I am not familar with every states DUI laws or the case law that dictates certain outcomes at trial.

Tell me - did you read the KANSAS statute before posting this?

[CdwJava]

Originally Posted by Zigner

Tell me - did you read the KANSAS statute before posting this?

Well, I glanced at it and I can't find where it is a crime not to do FSTs or blow in the preliminary device. Keep in mind that the PBT is NOT the state mandated test.

There may be a section that provides punishment for not blowing in a PBT or doing FSTs, but these sections are rare and I have heard of them in only a couple of states.

- Carl

[midnightduipro]

Did he actually get charged with d.u.i., or just obstruction? Obstruction is all that was mentioned in the post and that wouldn't usually require any further BAC testing.

[CdwJava]

Originally Posted by midnightduipro

Did he actually get charged with d.u.i., or just obstruction? Obstruction is all that was mentioned in the post and that wouldn't usually require any further BAC testing.

I doubt you could charge obstruction for not taking the FSTs or blowing into a PBT ... but, different states have different laws.

- Carl

[comet3]

When you apply for a driver's license, you automatically waive the right to refuse sobriety tests. If you refuse field sobriety tests, you'll then be taken in a blood test, if you refuse that, you are arrested.

[CdwJava]

Originally Posted by comet3

When you apply for a driver's license, you automatically waive the right to refuse sobriety tests. If you refuse field sobriety tests, you'll then be taken in a blood test, if you refuse that, you are arrested.

That may be true in some state somewhere, but in the ones I know the only thing that a driver is required to do under 'implied consent' is to take a chemical test if arrested for DUI. I know of at least one state that creates a seperate offense not to blow in the field device (aka PBT or PAS), but even that state does not require that you submit to FSTs.

- Carl

[ksjane]

He was pulled over for speeding, but they didn't pull him over until he was pulling in my driveway. They got his DL and ins. and ran all that--all fine. Asked him to do a PBT and he refused. He argued that he didn't feel it necessary as he was only speeding and asked that they write him his speeding ticket so he could be on his way. They said if he refused the PBT they would take him to jail on obstruction. They wrote him the ticket, handed it to me and took him to jail. They told me he was being arrested for obstruction, how much the bond would be and where he could be picked up. The ticket was for speeding and refusal to take PBT. He had a court date, he went to it. They charged him with a DUI, appointed him an attorney, explained to him the process of diversion and that he was eligible and set a new court date. He has a meeting with the court appointed attorney next week. We will know more then hopefully. I just dont understand how they can actually charge him with a DUI just from this process. I can certainly understand why some might assume that there is something missing from this whole ordeal, I might think so myself if I hadn't witnessed it all first hand. It seems if this were the case they would be able to charge anyone who got pulled over and refused a PBT with a DUI. Doesn't seem right. What am I missing? Thanks all.

[CdwJava]

Originally Posted by ksjane

He was pulled over for speeding, but they didn't pull him over until he was pulling in my driveway.

Perfectly legal.

They got his DL and ins. and ran all that--all fine. Asked him to do a PBT and he refused.

Unless there is a law requiring him to blow (and I don't think there is in KS), he did not have to. And even if he had to, he could still refuse and face the consequences.

My guess is they asked because they smelled alcohol on him or he exhibited some sign of impairment.

They said if he refused the PBT they would take him to jail on obstruction. They wrote him the ticket, handed it to me and took him to jail. They told me he was being arrested for obstruction, how much the bond would be and where he could be picked up.

Odd, but I suppose that might be the law in KS.

I just dont understand how they can actually charge him with a DUI just from this process.

They can charge him with anything. Convicting him is a whole other matter.

And the officers may have other observations that tend to go to show he was impaired. Without seeing the report, it's impossible to say.

I can certainly understand why some might assume that there is something missing from this whole ordeal, I might think so myself if I hadn't witnessed it all first hand.

You may have witnessed the contact in the driveway, but you do not know what happened before that. You also may not have made the same observations of impairment that the officers did. One can be DUI without being a stumbling drunk. I have seen people blow a .22 and do decently enough on the FSTs that I thought they might be .07 or .08!

- Carl

[BigMistakeFl]

Go to the meeting with the lawyer. He should be able to discover what the prosecution's case is. Much will be revealed to you then as to why the cop(s) suspected DUI.