The Most F.A.Q. Regarding DUI Refusal Suspensions:
Most people have heard by now that refusing to take a chemical test in Indiana as part of any DUI can lead to serious consequences. Some have heard that while it may result in serious consequences, you may be lucky and the officer will be too lazy to bring you in for a blood draw, and thus you avoid a DUI arrest. Regardless, the idea that you can have you license suspended to up to two years for refusing to give a chemical test is something that many people have a lot of questions about. This blog will attempt to answer the most common of those questions.
What is the law in Indiana regarding “refusals?”
Under 9-30-6-2, Once an officer has probable cause to believe you operated a vehicle while intoxicated, are enrolled in the Circuit Court Alcohol Abuse Deterrent Program, and/or have violated Indiana’s law for having an open alcoholic beverage container in your vehicle, the officer must read you implied consent (the formally approved language that officers must use to offer you a chemical test/breathalyzer in Indiana). That language is as follows:
“I am a police officer; I have probable cause to believe that you have operated a vehicle while intoxicated. I must now offer you the opportunity to submit to a chemical test, and inform you that your refusal to submit to a chemical test will result in the suspension of your diving privileges for one year. If you have at least one previous conviction for operating while intoxicated, your refusal to submit to a chemical test will result in the suspension of your driving privileges for two years. Will you now take a chemical test?”
Importantly, the officer must not only read implied consent, but they must also disclose the penalties of failing to comply. For example, in Vetor v. State, App.1997, 688 N.E.2d 1327, the officer failed to inform the defendant of the consequences of failing to comply with implied consent, and the court overturned the refusal suspension.
Should you then choose to refuse to give a breath sample, the officer can obtain a search warrant for your blood and can suspend your driver’s license for 1-2 years depending on where you fall in the statute.
Under , (b) If the affidavit under section 8(b) of this chapter states that a person refused to submit to a chemical test, the bureau shall suspend the driving privileges of the person:
(1) for:
(A) one (1) year; or
(B) if the person has at least one (1) previous conviction for operating while intoxicated, two (2) years; or
(2) until the suspension is ordered terminated under IC 9-30-5
What is constitutes a “refusal?”
The word “refusal” has been litigated over and over, and in all honesty, it will continue to be because each defendant and their actions vary from case to case. Often times it is straight forward, and very easy to discern — i.e. the Defendant clearly (and sometimes forcefully) says, “no.” Such an unequivocal “no” is a definitely a refusal. Many times officers, assuming they are feeling lenient, will remind the defendant that refusing has serious consequences. However, they do not have to do so. Yet, if after the warning they simply say “no,” the officer will mark it as a refusal.
However, there are equally as many times that aren’t so clear. What if someone walks away? What if someone yells and screams? What if someone cusses the officer out? What if the person blows into the machine but not hard enough? There is no bright line rule. The Indiana Court of Appeals in Davis v. State, (1977) 174 Ind.App. 433, 437, went as far as to say, “anything substantially short of an unqualified, unequivocal assent to an officer’s request that the arrested motorist take the test constitutes a refusal to do so.” 367 N.E.2d 1163, 1166. Burnell v. State, 56 N. E. 3d 1146, 1151 (Ind. 2016). Nevertheless, here are a few examples:
Walking Away & Other Behavior Refusals:
The Indiana Supreme Court in Burnell v. State, 56 N. E. 3d 1146, 1151 (Ind. 2016), weighed in on the issue. In that case the defendant declared, “yea, I guess I gotta take [the test].” Nevertheless, the defendant in that case stepped away from the officer twce after making the statement. The officer marked it as a refusal. The Supreme Court in its holding stated that a “reasonable person” standard should be applied. In effect, the courts will look to what a reasonable person would have thought in the officer’s shoes — i.e. would a reasonable person believe the defendant manifested an unwillingness to give a sample.
Consenting & Then Behavior Changes:
In Thacker v. State, 441 N.E. 2d 708, 710 (Ind. App. 4th Dist. 1982, a defendant consented to take the test. While he was restrained, he again verbally consented. However, once he was freed from constraints, the defendant became violent, began kicking, and refused to exit the car. The court determined that though he originally consented, his subsequent behavior negated consent and any reasonable person would agree in the officer’s shoes.
Refusing to Give a Sufficient Sample/Lightly Blowing in Machine:
Many people don’t realize that failing to give a strong enough sample once blowing in the machine can also be marked a refusal. Indiana established an Indiana Code for the proper procedures to follow for the two breathtest machines currently being utilized. To read about the individual machines work, read our blog here.
As anyone can see, the determination of a refusal is a very subjective question and one that courts struggle over.
I’ve Heard that Refusing is the Best Option, is that True?
While we cannot give legal advice, it typically doesn’t make sense to refuse. Even if the officer is too lazy to pursue a warrant and a blood draw, that doesn’t mean they still can’t file a DUI. And, though they may refuse to file charges, the refusal still stands if there was probable cause found. As such, refusing is a gamble that typically doesn’t pay off.
My License is Suspended for a Refusal, can I get a Hardship or Specialized Driving Privilege?
The short answer is no. The law specifically precludes a defendant from getting a conditional license if they refused a chemical test. However, you can obtain a conditional license after your refusal suspensions terminates. Your lawyer may also be able to get the prosecutor to stipulate that there was no refusal suspension and/or to terminate the refusal early. Should that happen, a conditional license may be an option.
In the end, a refusal suspension can be a very, very difficult thing for a defendant to deal with. A license suspension of one to two years can be an absolute life changer. As such, if you are facing a DUI or a refusal suspension, you need a lawyer that knows the law inside and out. Call the experienced Indianapolis DUI Lawyers at Banks & Brower a call today. Three of the attorneys in the officer used to be DUI Prosecutors. Call us 24/7/365 at (317) 870-0019 or email us at info@banksbrower.com.