Refusing the Breath Test

What Happens if I Refuse a Breath Test?

What happens if I refuse to take a certified breath test? This is one of the most commonly asked questions by people concerned with drunk driving laws. Thus, this section is designed to give the reader as much information as possible regarding the penalties for not taking a test. However, this information cannot be viewed as a substitute for a consultation with an attorney.

When a police officer has probable cause to believe that a motorist was operating a vehicle while intoxicated, he or she must offer you a chemical test for intoxication. (I.C. 9-30-6-2). If the driver refuses to take a properly offered chemical test, the drivers operators license WILL be suspended for one (1) year on a first offense and TWO (2) years if the driver has a previous conviction for Operating While Intoxicated (I.C.9-30-6-9). The driver will also be arrested for Operating a Vehicle While Intoxicated (OWI). Therefore, in deciding whether or not to take a certified test, which can include Blood, Breath or Urine, a motorist should consider whether or not he or she can afford to be suspended from driving for one (1) year. Further, motorists should know that if you then get convicted for Operating While Intoxicated after having refused a test, the Court will order ANOTHER license suspension that would be in addition to the one (1) year administrative license suspension. Pursuant to Indiana law, an "intoxicated" person is one who is under the influence of: (1) alcohol; (2) a controlled substance (I.C. 35-48-1); (3) a drug other than alcohol or a controlled substance; or (4) a combination of alcohol, controlled substances, or drugs; so that there is an impaired condition of thought and action and the loss of normal control of a persons faculties (I.C. 9-13-2-86).

There are occasions, in some jurisdictions, where an attorney with experience in this area of the law might be able to negotiate a reduced license suspension time period. This often becomes necessary due to the added problem that, if you are found to have refused the test, you usually CANNOT get a hardship license. (I.C. 9-24-15-6.5(a)). This means that you cannot even get a restricted license to drive to work. There have been some recent law changes that allow the judge to order driving privileges after a refusal suspension by placing an ignition interlock device on the drivers car. However, such a license will be granted only if the court agrees to it, and it cannot be counted upon.

Upon a finding by The Bureau of Motor Vehicles (BMV) that a person refused a chemical test, the BMV will AUTOMATICALLY suspend the drivers license for one to two years (depending on the circumstances). You might be thinking, "Am I innocent until proven guilty?" The answer is yes, but the BMV is an administrative agency and not a Court or judicial body. Under Indiana law, driving is a privilege and not a fundamental right. We all impliedly consent to these concepts upon becoming a licensed driver in Indiana. Consequently, the BMV can and will suspend your license once it receives notice from the Court that you refused to submit to a certified breath test.

In review, the BMV has the authority to suspend your license for one (1) year to two (2) years for failing to submit to a certified chemical breath test. Even if you believe you were completely justified in your decision not to submit to a breath test (i.e. you were not driving and/or had consumed no alcohol or drugs), your refusal to submit to the test will result in an automatic suspension. The Court can also impose a license suspension, but will not do so until you have been convicted of an applicable offense.

The issues discussed in this section are just a few examples regarding why NO ONE should plead guilty to any criminal charge without first discussing the possible penalties with an attorney trained in that particular area of law. The attorneys at Miller Arnold & Terrill, P.C. are interested in discussing any questions or concerns you might have pertaining to certified breath tests, license suspensions or any other topics of interest to you. Please feel to contact us at (260) 420-7777.