Refusing the Breath Test
Fort Wayne Breath Test Refusal Lawyers
At Arnold Terrill, P.C., our DUI refusal attorneys in Fort Wayne, Indiana, represent individuals facing threats to their freedom and driving privileges because they have been charged with operating a vehicle while intoxicated (OWI) in counties throughout northeastern Indiana. We receive many phone calls from people with questions about the charges they or their loved one is facing.
Below are questions and answers about refusing a Breathalyzer or other chemical test administered by the police to determine a blood alcohol concentration (BAC) level. This information cannot serve as a substitute for a consultation with an attorney.
For answers to your specific questions about an OWI or breath test refusal, call us
at (888) 912-7220 or contact us online.
How Does Indiana define intoxication?
Under Indiana law, a person is intoxicated if they are under the influence of (1) alcohol; (2) a controlled substance (IC 35-48-1); (3) a drug other than alcohol or a controlled substance; (4) toxic substances or nitrous oxide; (5) any combination of the substances mentioned above; or (6) any other substance that impairs a person's normal faculties (IC 9-13-2-86).
How does a breath test work?
When drunk driving enforcement first began, the government had to prove that a person was guilty of driving a motor vehicle while intoxicated. Proving that someone was drunk could sometimes be difficult if an officer is not trained or if the government does not sufficiently investigate the case.
The breath test was originally developed to assist the officer in determining whether someone was intoxicated. Because of a desire by state legislatures to make it easier to convict drunk drivers, most states enacted "Per Se" (pronounced per say) laws. "Per Se" laws made it illegal for a person's blood alcohol concentration (BAC) to be over a certain limit, whether or not they were proven to be intoxicated. Thus, the breath test started being used by the government to prove BAC level. In Indiana, the legal BAC limit is .08 (IC 9-30-5-1).
Breath testing is very complicated. The explanations given in this section will, of course, be simplified. For a more in-depth discussion, feel free to call Arnold Terrill, P.C., to speak with an experienced chemical test attorney in Fort Wayne.
A brief history of breath testing.
The history of breath testing is rather long and not relevant to breath testing today. However, it is interesting to note that the very first breath test instrument, called the "Drunkometer," was developed in Indiana.
Older devices such as the Drunkometer were not as reliable or as scientific as some of today's instruments, and most importantly, were not as practical because they required a great deal of care and maintenance. Even today, scientists continue to work to create better methods for testing.
Current technology: The DataMaster
Most evidentiary breath testing is now done using infrared light. Infrared breath testing relies on the premise that infrared light will be absorbed by the alcohol molecule. Inside the DataMaster, infrared light is directed through a chamber in the instrument. The light goes through the chamber and hits a detector at the end of the chamber. The detector expects to see a certain amount of light.
When a person blows into the instrument, the infrared light is absorbed by the alcohol molecules in the chamber. The detector notices that some light is missing and then makes a calculation based on a computer program. The result of the calculation is meant to be the amount of alcohol, by weight in grams, in the person's breath.
Concerns about infrared testing.
There are many problems with breath testing. For example, the instrument assumes that all people have the same body temperature. Because body temperature can make a difference in the test result, there is a possible error there. Also, the instrument assumes that all people have the same amount of water in the body. Because water dilutes alcohol, the amount of water can be a factor in each case.
Many believe that infrared testing is a good way to test for breath alcohol. However, there is a built-in possibility for error, as noted above. In addition, the instruments are not always used properly by the states. Any evidentiary testing of a quantity or amount of any substance requires a very accurate and thorough methodology. If the state does not use "good science" in employing the instrument, then the results are only as reliable as the procedure.
What happens if I refuse to take a certified breath test?
This is one of the most commonly asked questions concerning drunk driving laws. When a police officer has probable cause to believe that a motorist was operating a vehicle while intoxicated, they must offer a chemical test to determine intoxication (IC 9-30-6-2). If the driver refuses to take the test, their driver's license will be suspended for 1 year (IC 9-30-6-9). The suspension period could be longer than 1 year based on driver history.
What if I refused to take the chemical test because I knew that I wasn't drunk?
Regardless of whether you knew you were drunk, you are required under Indiana's implied consent law (IC 9-30-6-1) to submit to blood, breath, or urine test. Even if you knew you weren't drunk, refusal will still result in the suspension of your driving privileges. You must consider whether or not you can afford to lose your driver's license for 1 year.
Further, you will still be arrested for OWI. You should know that if you are convicted for the offense after refusing a test, the court will order another license suspension in addition to the 1 year administrative license suspension.
Will I automatically face a one-year suspended license?
The Bureau of Motor Vehicles (BMV) will suspend any driver's license for 1 year if they refuse to submit to a certified breath test. If a person has a prior conviction for a related offense, a refusal can result in a two-year license suspension. There are occasions, in some jurisdictions, where a chemical test attorney with experience in this area of the law might be able to negotiate a reduced license suspension period.
But am I not innocent until proven guilty?
Yes – for the criminal charges. But the BMV is an administrative agency and not a court or judicial body. Under Indiana law, driving is a privilege, not a fundamental right. We all consent to OWI chemical testing when driving on Indiana roads. Consequently, the BMV can and will suspend your license once it receives notice from the court that you refused to submit to a certified test.
What if I refuse a warrant to take a breath, blood, or urine test?
In some Indiana counties, including Allen County, the court may hold you in contempt of court for refusing a warrant for a chemical breath, blood, or urine test. It could jail you for such contempt. That penalty is in addition to any outcome you may receive for the OWI charge itself. Our Fort Wayne DUI refusal attorneys at Arnold Terrill, P.C., expect more jurisdictions to adopt this approach. Thus, refusing to take a test now assumes an even greater amount of risk.
Shouldn't I just plead guilty and get it over with?
The issues discussed in this section are just a few examples of why no one should plead guilty to any criminal charge without first discussing the possible penalties with an attorney trained in that area of the law.
Consult with Our Knowledgeable Fort Wayne Chemical Test Lawyers About Your Case
Many scientific articles outline the minimum standards to be followed by any state to properly use a breath test instrument. It is also important to understand what will happen if you refuse a breath test in Indiana.
Our OWI refusal attorneys in Fort Wayne at Arnold Terrill, P.C. are ready to discuss any questions or concerns you might have about certified breath tests, license suspensions, or any other topics related to your case.
To learn more about breath testing, please contact our firm at (888) 912-7220.
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