Getting pulled over after having a few drinks is a nightmare that many Hoosiers
have unfortunately endured. The interactions with the police officer, the barrage of
confusing field sobriety tests, and blowing into a portable breath test all combine to
make an incredibly stressful situation. And, after all of these events, the officer will ask
a question with wide ranging repercussions. The officer will ask if you will consent to a
certified breath or blood test. The officer will explain that if you refuse to take this
certified chemical test, the BMV will automatically suspend your license for at least 1
year, above and beyond any suspension that a judge may order as part of a criminal
court case. Judges and attorneys frequently call BMV suspensions in response to
refusing to take a chemical test as “refusal suspensions.”
How is this fair?
Indiana views driving as a privilege, and not a right. Indiana law mandates that if
you operate a vehicle within the state, you automatically consent to a chemical test if a
police officer believes you are driving under the influence. I.C. 9-30-6-1. Simply put, if
someone suspected of drunk driving does not consent to a certified test, that person’s
driving privilege is taken away for one year (two years if this is a refusal on a repeat
offense).
If I Refused to Take the Certified Test, Is There Any Way to Get My License Back?
If a refusal suspension is in place, there are a few different routes to potentially
get back on the road with a valid license.
The first method to eliminate a refusal suspension is to negotiate it away via a
plea agreement. Parties can agree that there was no refusal in the first place, or that
the refusal suspension should end on a certain date. So long as the judge accepts the
plea agreement, the refusal suspension will be removed. This is often times the
simplest way to get rid of a refusal suspension.
Another method of attacking a refusal suspension is to contest whether there
was actually a refusal in the first place. The Indiana Supreme Court has ruled that a
refusal occurs when the conduct of the driver is such that a reasonable person in the
officer’s position would believe the driver showed an unwillingness to submit to the test.
Burnell v. State, 56 N.E.3d 1146, 1151 (Ind. 2016). This covers situations above and
beyond an overt response of “no” from the driver. For example, walking away from the
officer, continuing to ask questions of the officer, or deliberately trying to provide an
inadequate breath sample can all be considered refusals. Contesting a refusal can be
factually difficult, but there are circumstances in which it is warranted.
The third method to remove a refusal suspension is to request relief directly from
the judge. Under IC 9-30-6-8(d), the judge has the authority to grant specialized driving
privileges even if the driver refused a certified chemical test. Under this statute, the
Court can issue an order recommending that the person be prohibited from driving
unless their vehicle is equipped with an ignition interlock device. When the Court allows specialized driving privileges under this statute, no administrative suspension is imposed by the BMV and no suspension is noted on that person’s driving record. I.C. 9-30-6-8(d). Convincing a judge to allow a person to drive after refusing a chemical test can be a tough sell, but it can be done.
Are you or anyone you know facing a refusal suspension with the BMV? It is
direly important to have an experienced attorney to navigate you through the process.
Contact the attorneys at Banks & Brower anytime at [email protected] or at (317)
870-0019.
