Refusing a DUI Chemical Test in Indiana

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Posted in On February 19, 2017

Refusing a Chemical Test During a DUI Investigation: The Supreme Court’s Recent Ruling:

A look at the Supreme Court’s most recent ruling on what counts as “refusing” a chemical test. 

If you ever find yourself in a position where a police officer suspects that you are intoxicated and is asking if you will submit to a chemical test, your actions are just as important, if not more, than your words when it comes to determining whether or not you may have refused to take such test.
In August 2016, the Supreme Court ruled on the case of Kristy Burnell v. State of Indiana.  Ms. Burnell’s license had been administratively suspended by the BMV because the police officer who arrested her for operating while intoxicated, noted in his report that she had refused to take a chemical test.
Burnell had been stopped while driving in Hamilton County and was eventually asked to perform several physical tests to determine if she was intoxicated.  After these tests, the officer informed her that he believed that she was intoxicated and that he was offering her the opportunity to submit to a chemical test.  In doing so he informed her that if she refused to take the chemical test, her license would be suspended for a year, but that if she had a prior conviction for operating while intoxicated, it would be suspended for 2 years.  After informing her of this information, he then asked if she would take a chemical test.  After some back and forth between her and the officer, according to the transcripts reviewed by the court, Burnell stated, “yeah, I gotta can take it” but after she said that, she began walking away from the officer.  The officer then grabbed her by the arm and once he release her, she began walking away again.  After walking away the second time, she was placed arrested as the officer determined that she had refused to take the test.
The trial court agreed with the officer that Burnell’s behavior constituted a refusal.  The Court of Appeals affirmed the trial court’s ruling but held that “anything short of an unqualified, unequivocal assent to a properly offered chemical test constitutes a refusal.”  Burnell v. State, 44 NE3d 771, 777 (Ind. Ct. App. 2015).
The Supreme Court ultimately agreed with the Court of Appeals on the concept that a physical failure to cooperate can amount to a refusal but disagreed that assent to a chemical test must be unqualified and unequivocal in order to avoid a refusal.  The Court cautioned that such a harsh stance could become problematic and that the unique facts and circumstances of each case should be taken into consideration.  For example, what if there is a language barrier between the motorist and the officer, or if the motorist incapable or hearing/understanding the officer for some other, legal reason.  Because of these concerns the court held that a refusal to submit to a chemical test occurs when the conduct of the motorist is such that a reasonable person in the officer’s position would be justified in believing the motorist was capable of refusal and manifested an unwillingness to submit to the test.
It is very noteworthy that the court’s opinion seemed to indicate that this was a close call on the issue of whether or not Burnell had actually refused but due to the procedural history of the case ruling that she had, in fact, refused was appropriate.
The issue of whether or not someone refused to submit to a chemical test is just one of the numerous issues to consider when somebody is arrested and charged with drunk driving or operating while intoxicated.  Therefore, if you or somebody you know has been charged with OVWI, contact the experienced DUI attorneys at Banks & Brower, LLC.  We are available to help you 24 hours a day, every day at (317) 870-0019 or