To Refuse or Not to Refuse
When an officer pulls you over under a suspicion that you may be operating a vehicle while intoxicated, he must then develop probable cause before offering a chemical test. Developing probable cause happens in a number of different ways. He can use his observation skills to determine if the suspect shows physical signs of intoxication such as red and watery eyes, slurred or unclear speech, soiled clothing or the smell of an alcoholic beverage. The officer can also have the driver submit to pre-exit testing such as divided attention tasks, repeating a portion of the alphabet, generally C-N, or having the driver count backwards from a specified starting point to an end point. The officer can have the driver participate in standardized field sobriety tests. Finally, the officer could have the driver submit to a portable breath test but this is not a certified chemical test.
At the end of such testing, the officer must make a determination if there is enough evidence for probable cause the the driver is operating a vehicle while intoxicated. If the determination is yes, the officer must then offer the driver the opportunity to submit to a certified chemical test and will read the following statement to the driver.
I have probable cause to believe that you’ve 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 chemical test will result in a suspension of your driving privileges for one year. If you have at least one previous conviction for operating while intoxicated, your refusal to submit to a chemical test will result in a suspension of your driving privileges. Will you now take a test?
The driver is given an option of taking the certified chemical test or refusing to do so. Both decisions carry consequences that can significantly affect the driver’s rights and his ability to effectively defend himself at a trial. The Indiana Courts have held that a person is not entitled to speak to an attorney prior to making this decision.
Should a driver submit to the chemical testing, that result can be used against him in court at trial. Additionally, if the State files charges of Operating a Vehicle While Intoxicated against the driver, the court can recommend to the Bureau of Motor Vehicles that the driver’s license be suspended for a period of 180 days if there is probable cause that the driver did submit to and fail a chemical test while the case is pending.
Should a driver refuse to submit to a certified chemical test, the State can present the evidence of intoxication gathered by the Officer and request a warrant to obtain a sample for the purpose of a certified chemical test. Those results are admissible against the driver. Additionally, the Court must order that the driver’s license be suspended for a chemical test refusal for 365 days. If the driver has a prior Operating a Vehicle While Intoxicated offense, then the refusal suspension is two years regardless of whether the first conviction was a refusal. The State may also admit into evidence the mere fact that the driver refused to submit to the certified chemical test.
In my opinion, it does more harm than good to my clients when they refuse to submit to the certified chemical test. It opens them up to a longer license suspension and for most people, that is the worst part of the punishment. Most believe that if they refuse to submit to a certified chemical test, then the State will not be able to successfully prosecute them. However, the State is not solely reliant of the results of said testing. They can admit any evidence gathered prior to offering the test and in the case of a warrant are still able admit the results of the certified chemical test.