ALLEGATION OF REFUSAL
OFFER OF CHEMICAL TESTS & FIELD SOBRIETY
Indiana IMPLIED CONSENT: There is no unfettered ‘right to drive’ in Indiana.
There are obligations you assume as a condition of operating a vehicle in Indiana. (Indiana Code 9-30-6 )
REFUSAL OF CHEMICAL TEST: This allegation of REFUSAL is so often a very subjective decision made by the arresting Officer. In some situations, the Officer is not what your REFUSAL DEFENSE ATTORNEY would consider very patient, and rather, often concludes with a very limited conversation – “You have refused the chemical test” . The client often explains to us that he or she was simply trying to ask the Officer what exactly he is talking about as a ‘Refusal’ (particularly if they have never been arrested) and the Officer was either in a hurry and was not interested in spending much time discussing it further. Numerous clients have told us over the years that “once the Officer explained a likely license suspension for one year (or longer) – I was clear with him/her that I would take the chemical test.” Far too often the response by the Office has been : ” Too late – you refused.”
IMPLIED CONSENT : Under Indiana Implied Consent Law any person driving on the state’s roads impliedly consents to submit to a chemical test if offered by an Indiana law enforcement officer. If an Indianapolis Police officer, as well as law enforcement throughout the State of Indiana, believes there is probable cause that a driver is committing or has committed an ‘operating while intoxicated’ type offense, that officer shall offer the driver a chemical test (one of three: breath, urine, or blood test) to determine that person’s blood and/or breath alcohol level.
The Officer should read on a card they carry, or if by memory the following : I am a Police Officer. I have Probable Cause to believe 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 test will result in the suspension of your driving privileges for one year (or two years if there is a prior OWI conviction).
That chemical test MUST be administered within three (3) hours after that officer had the aforementioned ‘probable cause’. If not done within that time frame the results may well be kept out of evidence, or suppressed, if your Indianapolis DUI/DWI/OWI attorney properly raises the issue. If a REFUSAL is alleged by the officer, it is entirely separate from the criminal charges that may well be filed. The issue of a refusal is an administrative suspension by the Indiana Bureau of Motor Vehicles.
At your very first Court appearance, the Judge will very often order the suspension the driver’s license based on the allegations of a refusal by the police officer. The possible consequences of said refusal can be devastating if you need to drive for work, for school, for transporting the children.
A HUGE DIFFERENCE ON THE ISSUE OF ‘REFUSAL’
A RECENT ADDITION TO INDIANA LAW IN 2022
Indiana Code now has a most important addition under I.C. 9-30-6-8 (d), effective in 2022. The impact can be monumental for the Client. For years, the mere allegation of refusal by an Officer, triggered for the Client a suspension with no recourse at least at that point. Essentially, this new code section allows for the Client to still be allowed to drive as an alternative to suspension with the Client’s motor vehicle equipped with a ‘functioning certified ignition interlock device’ under I.C. 9-30-8. The Court may grant this ignition interlock – it is not mandatory – and it should be raised at the time of the Initial Hearing. It may allow the Client / Driver to maintain their employment and continue to feed and take care of their families. It can be incredibly helpful during a very difficult time.
IF YOU HAVE A PRIOR CONVICTION FOR A DWI/DUI/OWI offense: That ”refusal’ suspension will be for a two (2) year period of time. One of the more troubling aspects also on the allegations of a refusal, is that in Indiana your are not entitled to a ‘hardship’ license or a ‘probationary’ license during the period of a ‘refusal’ suspension.
With a ‘REFUSAL’ ….while you are not entitled to a Specialized Driving Privileges ‘hardship’ license …. if one petitions the Court for an ‘ignition interlock’ device in lieu of that suspension, you may be able to stay that suspension with such a device installed in your vehicle in Indiana. Only with the Court’s permission or ruling if contested by the State. Such a ruling may help save your job.
REFUSAL TO TAKE FIELD SOBRIETY TESTS: If one refuses to take the chemical test a suspension will generally ensue, though there is no comparable suspension issue when one refuses to take the Officer’s Field Sobriety Tests. The Officer cannot advise you that your license ‘will’ or ‘shall’ be suspended if you refuse to take his offered FIELD SOBRIETY TESTS, as that is not the law in the State of Indiana.
It is certainly not always advisable to refuse to take the offered FSTs, for a variety of reasons. But there is also no mandatory suspension of your Indiana Driver’s License if you do. A capable, tested DUI/OWI Defense Attorney can explain these distinctions, benefits and repercussions.
CONTESTED ISSUES WITH REFUSAL
Most informed Indianapolis Defense & Refusal Attorneys will advise you to Consent to the Chemical Test. Primarily because when there is a valid ‘Refusal’ the Officer is overwhelmingly going to seek and acquire a Warrant to obtain your blood for analysis. Odds are high therefore that the State of Indiana will determine your Blood Alcohol level, as well as most often any other chemicals that are not there by way of a valid prescription.
1. At the time of the arrest, Indiana Law has become rather clear over the years. To establish an adequate refusal under the implied consent statute in Indiana the arresting officer must convey the strong likelihood, that suspension of driving privileges would follow the driver’s refusal to submit to a chemical test/breathalyzer/blood test. An advisement that the license “may be suspended” is inadequate. In 2008 the Indiana Court of Appeals noted: “the legislature has required a warning (on refusal) phrased in absolute terms, finding that the statute mandated an advisement stating ‘that refusal will result in suspension’ of the person’s driving privileges.
2. If you tell the Officer you want to speak with your DWI REFUSAL LAWYER in Indianapolis before proceeding to decide whether or not to take the breathalyzer what should you expect next?
This is not a question the Officer can or should just simply ignore or dismiss. While there is not a ‘right to counsel’ at this stage of the proceeding, there are requirements for the officer to respond if you are asking for your attorney at this point. These are always fact sensitive, and your Indianapolis DUI/DWI/OWI attorney should know how to address this issue in Court.
SPECIALIZED DRIVING PRIVILEGES – ‘Hardship’ type license
BUT MUCH BETTER
THIS MAY BE ONE OF THE MOST SIGNIFICANT CHANGES TO DWI/DUI/OWI licensing and suspension law that has occurred in years in Indiana. The fairly recent law is most commonly referred to as “SPECIALIZED DRIVING PRIVILEGES” and it essentially eliminates a great deal of the mandatory suspensions we have dealt with for years in Indiana. The ‘SDP’ (for short) Code Section is I.C. 9-30-16-1 et. seq. This law allows the Judge involved in the case to have broad discretion regarding driving privileges and the duration of any suspension.
This ‘discretion’ can obviously cut both ways. Some Judges can and will be much more lenient than others when considering if, and how long a suspension should be. If granted an SDP, the length of its term is the period as determined by the Court and the Court may set periodic review hearings. (I.C. 9-30-16-3(b) and that SDP license is subject to the restrictions the Judge places on that individual. The period of SDP can also last up to the maximum period of incarceration allowed for the offense the person is facing.
We will be dealing with this Specialized Driving Privileges topic at much greater length throughout portions of our Website herein. Please feel free to peruse this site if you facts and case will be potentially dealing with the option of having an SDP granted in order that you may drive.