If you refuse OR fail a breath test at the station, will you lose your driver's license?

Posted by Matt McLane | Oct 11, 2018 | 0 Comments

The answer is most likely yes, unless you have a good legal argument against the suspension.  Driver's can request a hearing within 14 days of the arrest to challenge the suspension.  The request is in the form of a written letter wherein the driver lists his or her name, address, date of birth, license number, and the date of the stop and the police agency's name.  The letter needs to specify whether you want a "telephone" hearing or an "in-person" hearing and whether you prefer the officer to appear by way of a subpoena.  Most DUI practitioners prefer to request "in person" hearings and want the officer to appear "in person." The strategy is to force the arresting officer to appear in person in hopes that he or she may skip the hearing or miss for other work or family-related reasons. When an officer fails to appear at the hearing, the hearing officer (a.k.a administrative "Judge") will generally dismiss the suspension against the driver.   While most arresting officers appear at their hearings, occasionally an officer will miss for unknown reasons.  This is the exception. 

I should add that the Judge has discretion whether to reschedule the hearing.  This could occur when the arresting officer contacts the Judge by phone the day of the hearing to advise that he or she must remain at the police station to complete a recent arrest report or to assist in other enforcement activities.  This rarely happens, however.  The norm is the arresting officer appears at the hearing, the driver's attorney appears with or without the driver, and a  5-10 minute hearing ensues.  The administrative hearing result can be appealed to district court if the driver believes the Judge overlooked a valid legal argument that should cause a dismissal of the suspension.  Appeals to district court are rare but should certainly be considered when the driver has a legitimate legal claim.  I would recommend that you retain a lawyer to handle the driver's license hearing since there are both legal and procedural issues at play.  A skilled lawyer can find these issues and make an intelligent argument on your behalf.  I have handled hundreds of license hearings and have an eye for the winning and losing issues.  

About the Author

Matt McLane

Matt McLane was born in Topeka, Kansas, and moved to Pittsburg, Kansas in 1980 where he attended middle school, high school and college. Upon graduation from PSU in 1992, Matt moved back to Topeka where he attended Washburn University law school. Upon graduation, he moved to Overland Park and worked in a small firm handling DUI and traffic cases. He opened the McLane Law Firm in April 2011 and has built his firm on a strong referral base and solid reputation.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

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.

Contact Us Today!

Mr. McLane´s clients benefit from his experience and reputation of being a respected, professional attorney with a strong work ethic who is committed to successfully resolving every client´s legal challenges in a Timely and Professional manner.

McLane Law Firm, LLC
(913) 322-4715 (fax)
Mon: 08:30am - 05:30pm
Tue: 08:30am - 05:30pm
Wed: 08:30am - 05:30pm
Thu: 08:30am - 05:30pm
Fri: 08:30am - 05:30pm