Indiana Implied Consent and Language Barrier Issues

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Posted in On May 27, 2018

Language Barrier Issues & the Indiana Implied Consent Law

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 driving 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?

 Anyone who has found themselves in the unfortunate situation to hear these words (frequently referred to as the Indiana Implied Consent Law) will tell you this is one of the most nerve wrecking experiences.  For most, the decision comes down to whether a person wishes to cooperate with law enforcement and submit to a chemical test (blood, breath or urine) or not (which may result in law enforcement applying for and possibly being granted, by a neutral judge, a search warrant to draw blood and take urine against your will).  If you choose not to submit that’s called a “refusal” which will result in an automatic pretrial (and possibly post-conviction) suspension of your driver’s license for a period of time.  But what about situations where someone does not speak the English language or may not fully comprehend what’s being read to them, ultimately being marked with a refusal suspension?

This particular issue has not been fully vetted by the U.S. or Indiana Appellate Courts as of this time, but it is certainly one that will be decided in the near future.  Be that as it may, it is important to understand the legal contexts which this matter may likely be analyzed, as an elongated license suspension or being in a position where you do not qualify for specialized driving privileges (what used to be called a hardship license) is nothing anyone wants to find themselves in.

In 2016, the Indiana Supreme Court laid out a two-part test to determine whether someone has “refused” for purposes of the Indiana Implied Consent Law:

  1. Is the individual capable of a refusal (i.e. did they clearly understand what’s being asked of them)?
  2. Did the individual’s words or conduct manifest an unwillingness to submit to a chemical test?

The Court was clear that the purpose of their test was to do away with the thinking that if someone does not “unequivocally assent” to a chemical test, they have refused for fears of situations such as someone not speaking English or fully understanding the English language.  When one reads the two-part test laid out above, you likely conclude that someone who does not speak English or cannot understand the English language is certainly not capable of a refusal, so we end the analysis there right?  Not quite.

Most trial courts are focusing on the second step of the test in determining whether someone, legally, refused a chemical test.  This is because many law enforcement agencies in Indiana have translated the Indiana Implied Consent Law to the languages of motorists they frequently come into contact with or have Officers in the department that might have an ability to speak a certain language.  However, this is not across the board and the situation commonly arises where a motorist suspected of drunk driving is being communicated to in a language they or the Officer speaking with them has an elementary grasp on.   Trial courts have been relying upon body camera footage or testimony by law enforcement or any other relevant witnesses in refusal hearings to get a better idea what happened.

The concern for most motorists in this situation, and their attorneys. is that while it certainly makes sense to look towards an individual’s behavior as to whether they refused, in any other context of a legal proceeding where language is an issue, the U.S. and Indiana Courts of Appeal have been very clear that legal principles, such as Due Process, require that someone fully understand what is going on:  For example, Miranda warnings require that someone fully understands their rights in order to knowingly, voluntarily, and intelligently waive their rights.  Similarly, in court proceedings we require an individual to have an interpreter so that they fully understand the proceedings and can effectively participate in the legal process.   These are just two examples that are grounded in constitutional protections both Federally (4th Amendment) and in Indiana (Article I, Section 11).

One argument against there needing to be the same constitutional protections with respect to refusal suspensions is that the penalties are civil in nature versus the criminal of those referenced above.  Yet the legal irony with that is that law enforcement officers cannot perform a chemical test when someone refuses, so they must go to a judge to get approval (through a finding of probable cause) for a search warrant.  Or in simpler terms: Law enforcement need a constitutionally permissible avenue to even ask for a chemical test to be taken in the first place, so why shouldn’t the same be had in order to determine if someone understood or was even capable of refusing a test? Because after all, technically you have a right to refuse a chemical test and hold law enforcement to their supposed probable cause (but that’s an individual’s choice and never an across the board legal opinion).

This blog can only touch the surface of language barriers and refusal suspensions.  The issues with the Indiana Implied Consent Law, language barriers, and refusals (even those without a language barrier) is on the horizon of being the next big topic in the appellate court systems.  Central to ensuring that the law in the future is not overbearing on motorists generally is to find the proper representation to lay the appropriate record for you in court.

If you or somebody you know has recently been convicted of a crime or has questions about the criminal case process, contact the experienced DUI defense attorneys at Banks 7 Brower, LLC.  We are available at all times by calling us at 317-870-0019 or by emailing