Do I Have to Take a Breathalyzer?

  • By:Kyle Hankins
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I am sometimes baffled by how many times I get asked this question. It is easy to see why, Indiana has “Implied Consent.” But what does that really mean?

Indiana’s Implied Consent law (I.C. 9-30-7-2) basically states that by driving on Indiana roads, you impliedly consent to submit to a breathalyzer or chemical test. An officer shall give you a chemical test (breath, urine, or blood) if that officer believes there is probable cause that a driver is committing or has committed an ‘operating while intoxicated’ type offense. The officer must give the test within 3 hours of the officer’s probable cause.

If you refuse the chemical test, or if the officer alleges that you refused it, the judge at your first court appearance will likely order an administrative suspension by the Indiana Bureau of Motor Vehicles. Your refusal must be “Adequate.” Adequate refusal can only be established if the officer states that refusal will result in suspension. If they simply say that your license may be suspended, then the existence of proper adequate refusal can be argued by your attorney in court.

If your license is suspended because of your refusal to take a chemical test, you are not eligible for a specialized driving permit (I.C. 9-30-16-1(a)(2)). If you have no prior DUI/DWI/OWI type offenses your suspension will generally be for a period of 1 year. If you have a prior conviction for DUI/DWI/OWI, your suspension will be for 2 years (I.C. 9-30-7-5).

Refusal to Take Field Sobriety Tests

There are no automatic suspensions when you refuse to take the officers Field Sobriety Tests. If an officer tells you that if you do not take the field sobriety tests, then your license will be suspended, they are lying to you. Here is a little fun fact: Police Officers can, and will, lie to you to get you into a compromising situation. Especially if you are at a DUI/DWI/OWI checkpoint.

It is not always in your best interest to refuse to take field sobriety tests, but if you do, there is no mandatory suspension of your driver’s license.

If you find yourself or someone you know in either of these situations please contact an attorney for legal advice.  P.S. This is not legal advice.

Code Sections Referenced Above:

I.C. 9-30-7-2 A person who operates a vehicle impliedly consents to submit to the portable breath test or chemical test under this chapter as a condition of operating a vehicle in Indiana.  A person must submit to each portable breath test or chemical test offered by a law enforcement officer under this chapter to comply with this chapter.

I.C. 9-30-16-1(a)(2) Sec. 1. (a) Except as provided in subsection (b), the following are ineligible for a specialized driving permit under this chapter: (2) A person seeking specialized driving privileges with respect to a suspension based on the person’s refusal to submit to a chemical test offered under IC 9-30-6 or IC 9-30-7.

I.C. 9-30-7-5 Sec. 5. (a) A person who refuses to submit to a portable breath test or chemical test offered under this chapter commits a Class C infraction.  However, the person commits a Class A infraction if the person has at least one (1) previous conviction for operating while intoxicated.

(b) In addition to any other penalty imposed, the court shall suspend the person’s driving privileges:

(1) for one (1) year;  or

(2) if the person has at least one (1) previous conviction for operating while intoxicated, for two (2) years.

(c) During the three (3) years following the termination of the suspension, the person’s driving privileges remain suspended until the person provides proof of future financial responsibility in force under IC 9-25.

Posted in: Criminal Defense


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