Breath Tests in Kansas & Missouri


DUI & Kansas State Law

In the state of Kansas, it is illegal to drive a vehicle with a BAC (blood alcohol content) of .08% or greater. If an individual is stopped under the suspicion of DUI, he may be expected to submit to a breath test in order for the officer to determine the individual's BAC.

Under Kansas law, a person is deemed to have given consent to a preliminary breath test by operating a vehicle within the state. The officer may request the test when he has reasonable suspicion to believe that the person has been operating or is attempting to operate a vehicle while under the influence of drugs and/or alcohol. Failure to submit to the test will lead to penalties.

Breath Test Procedure in Kansas

In Kansas v. Edgar (2013), the Kansas Supreme Court addressed the proper procedure when using portable breath tests (PBT's). First, the officer must give the driver oral notice that: “(1) There is no right to consult with an attorney regarding whether to submit to testing; (2) refusal to submit to testing is a traffic infraction; and (3) further testing may be required after the preliminary screening.” In Kansas, the benchmark for statutory notice is whether the officer “substantially complied” with the statutory language. UPDATE: the PBT result is no longer admissible at any hearing IF the officer advised the driver, as part of the 3 warnings given, that a “refusal will result in a traffic infraction.”  See State of Kansas v. Michael Robinson (Case No. 116,872); Dec 22, 2017.  

When a test is administered at the police station, the officer must allow for a 20-minute observation period to take place before the driver gives a breath sample. The officer is expected to monitor the driver and ensure that the driver does not put anything in his mouth, belch or regurgitate any stomach contents.

The driver must then blow into the breath device for a certain amount of time. The machine is designed to test air which comes from a person's deep lungs. If the driver does not blow hard enough, the sample will be insufficient. Further, the driver must be standing in order to give a proper sample.

The breath testing device currently used by law enforcement in Kansas is the Intoxilyzer 8000. Until 2007, a previous version, the Intoxilyzer 5000, was approved for use in the state. The difference between the two machines is that the latest version uses a dry gas as a known standard for internal test comparison. The Intoxilyzer 5000 had employed a liquid solution. The change from liquid to gas allows for less maintenance by officers.

Another difference is that the Intoxilyzer 5000 evaluates the headspace gas (from the breath sample) for three infrared wave spectrums. The Intoxilyzer 8000 employs a five spectrum analysis.

DWI & Missouri State Law

It also illegal in Missouri for a driver to operate a vehicle with a BAC of .08% or greater. Under the state's implied consent law, any person who operates a motor vehicle in the state has deemed to have given consent to a breath or other chemical test in order for the officer to determine the driver's BAC. Failure to submit to a breath test will likely lead to penalties.

Breath Test Procedure in Missouri

The breath test procedure in Missouri is similar, but not exactly the same of that in Kansas. Here, there are a handful of approved devices that may used in order to test a driver's breath. These devices include both the Intoxilyzer 5000 and Intoxilyzer 8000. Missouri law requires the officer to wait for 15 minutes before administering the test, rather than 20 minutes in Kansas.

Officers in Missouri must follow and abide by a checklist when administering a breath test. The checklist involves steps such as: believing that the device is functioning properly and ensuring that the officer is authorized to use the machine.

Do You Need an Attorney?

If you have been arrested for DUI/DWI in Kansas or Missouri, contact the McLane Law Firm. Mr. McLane has devoted his practice to DUI/DWI defense and has the experience and background necessary to defend your case.

McLane Law Firm

Matt McLane has been defending individuals charged with DUI, traffic and criminal offenses since his graduation from Washburn University Law School in 1996. Licensed in the states of Kansas and Missouri. Mr. McLane specializes in DUI and criminal defense throughout the Kansas City metropolitan area.

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