Refusing a Breath Test in a DUI

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A Quick Look at the Consequences of Refusing a Chemical Test in Indiana:

A substantial number of our clients who have been charged with a DUI tell us that after they were pulled over, they refused the tests the officer asked them to do because once upon a time that’s what they heard or were told you’re supposed to do.  The theory is that if there is no test, then it will be difficult or impossible to prove they were intoxicated.  This is popular and drastic misconception.  In addition to police agencies across the state having procedures in place to circumvent a person’s refusal, there are numerous consequences to refusing “everything” after being pulled over by an officer who then begins to investigate you for a DUI and it certainly does not guarantee that you will be acquitted.
Generally speaking, there are two categories of tests that an officer will offer to somebody after they come in contact with them and suspect them of driving drunk – one category is referred to as Standardized Field Sobriety Tests (SFSTs), and the other is certified chemical tests.  SFSTs, simply put, are the eye, walking, and balancing tests often performed by the side of the road.  In contrast, the certified chemical tests are when a person’s breath or bodily substance (most commonly blood) are examined for alcohol or drugs.
While refusing to perform the SFSTs does not result in an automatic penalty of any sort, depending on the jurisdiction you’re in, as well as other factors, it is possible that the fact that somebody refused to perform the SFSTs may be admitted into evidence.
In contrast, by law, there are numerous consequences that arise out of somebody refusing to submit to a certified breath test; the most substantial being the suspension of one’s driving privileges.  According to Indiana Code 9-30-6-9(b)(1), if a person refuses to submit to a chemical test, that person’s license will be suspended for 1 year.  And if that person already has a prior conviction for operating while intoxicated (regardless of when they were previously convicted), their license will be suspended for 2 years.  That suspension lasts even if the charges are eventually dismissed or the person if found not guilty – as long as they are found to have refused the chemical test, they will face a license suspension of up to 2 years.
This license suspension stems from what’s known as Indiana’s Implied Consent Law which, according to I.C. 9-30-6 states that a person, as a condition of operating a vehicle in Indiana, impliedly consents to submit to a chemical test if a law enforcement officer has probable cause to believe that person operated the vehicle while intoxicated.  Furthermore, a person must submit to each chemical test offered by a law enforcement officer in order to comply.
To make matters worse, the suspension for refusing the chemical test must be served in addition to any license suspension that a person receives for actually being convicted of the new case, which can be up to the same amount of time that a person could be incarcerated for that particular class or level of offense.  See I.C. §§ 9-30-16-1(c), 9-30-16-6.
For example, the maximum penalty for a class A misdemeanor is 365 days.  Therefore, if a person is convicted of operating while intoxicated as a class A misdemeanor, then their license may be suspended anywhere from 0 to 365 days, for the conviction alone.  Accordingly, if the person refuses a chemical test and they have no prior convictions for drunk driving, their license will be suspended for at least a year because of the refusal, but possibly suspended for 2 years total, depending on the length of suspension they receive from the conviction for the A misdemeanor.  However, if the person does have a prior conviction for operating while intoxicated, the license suspension for the conviction alone must be at least 365 days. See IC 9-30-16-2(a)(3).  That means that somebody with a prior drunk driving conviction who is convicted of a new drunk driving case which involved refusing a chemical test must have their license suspended for at least 3 years.  As the level of the offense increases, so does the amount time one faces in terms of possible total license suspension.
Another major hit for refusing a chemical test as it pertains to the license suspension is that it disqualifies a person from receiving specialized driving privileges.  See IC 9-30-16-1(a)(2).  Specialized driving privileges are a tremendous benefit because even if somebody’s license is suspended they could be allowed to drive during certain hours of the day, or drive between certain locations and the person’s residence.  See IC 9-30-16-3(c).
In addition to the license suspension consequences, the law, pursuant to IC 9-30-6-3(b), actually specifically allows the fact that a person refused a chemical test to be admitted into evidence during a trial.  The argument then becomes that the person refused the test because they knew they would fail…because they were drunk/intoxicated.  This is a fact that the prosecutor should harp on and for good reason because it is tremendous ammunition for their case in proving somebody was drunk/intoxicated.
Even if somebody refused a chemical test, officers still have the ability to apply for a search warrant, which, if granted, would allow a blood draw to be performed which would allow a person’s blood alcohol concentration to be examined anyway.  If that happens, the efforts to evade the chemical test become futile, and then one is still left with the previously mentioned consequences for refusing.  Many police agencies have procedures in place that make possibility of getting a search warrant after somebody refuses extremely efficient.
Let’s say the officer chooses not to get a search warrant for a blood draw after somebody refuses and therefore there is no evidence as to that person’s blood alcohol concentration.  Can they still be found guilty of a DUI?  Absolutely.  This is because of way the laws are structured as they pertain to the crimes associated with situations often referred to as DUIs.  Obviously there are laws that prohibit somebody from driving with a certain blood alcohol concentration (.08); but there are also laws that prohibit somebody from operating a vehicle while being intoxicated.  What does it mean to be intoxicated?  Check out IC 9-13-2-86 which states that “intoxicated” means being under the influence of (1) alcohol; (2) a controlled substance; (3) a drug other than alcohol or a controlled substance; (4) a substance described in IC 35-46-6-2 or IC 35-46-6-3; (5) a combination of (1)-(4); or (6) any other substance not including food and food ingredients, tobacco, or a dietary supplement so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties.  As you can see, there is no requirement that a person’s blood alcohol concentration be known in order determine they are intoxicated.  Therefore, as long as somebody can be shown to be impaired based on being under the influence of any of the above substances, they can be found guilty of being intoxicated and, in turn, operating a vehicle while intoxicated.

There are many moving parts, so to speak, to any DUI case, especially, when a person is accused of refusing a chemical test.  There are procedures that must be followed by an officer when they ask you to submit to a chemical test, procedures an officer must follow if they try to get a search warrant for a blood draw, and procedures that must be followed when/if a person’s blood is drawn.  We at Banks & Brower, LLC know how to effectively analyze a DUI case involving the allegation that person refused a chemical test.  Additionally, we have had great success in getting the license suspensions for clients who have refused chemical tests to terminate early, allowing them the opportunity to get back on the road more quickly.  If you or anyone you know is charged with a crime, contact the experienced criminal and DUI attorneys today at 317.870.0019 or email us at We are available 24/7/365.