Written by attorney Paul Stanko

Think twice before you refuse a breath, blood or urine test!

Think twice before you refuse a breath, blood or urine test! I have practiced criminal law in Indiana since 1979, and have defended hundreds of persons accused of drunk driving over many years.

Unfortunately, by the time a person contacts me for representation they have already been arrested, and have already made the difficult decision whether to give a breath (or blood or urine) sample. Although other DUI defense attorneys may disagree, I firmly believe that submitting to a breath, blood or urine test is usually the better choice under Indiana law. In this article I will discuss the options available to you, and explain why I would recommend taking the test under most (but not all) circumstances.

Indiana’s Implied Consent laws basically state that you “impliedly" consent to submit to a “chemical test" of your breath, blood or urine if a police officer offers you one within three hours of you operating a vehicle, if that officer has probable cause to believe you operated that vehicle while intoxicated or over the legal limit. If you do not submit to each chemical test offered within that three hour window, the officer can allege a refusal. If that refusal is certified to the Indiana BMV, it will result in a one year suspension of your Indiana operator’s license (assuming it is your first offense). If you are licensed in another state, that state will determine what if any sanction is imposed for your refusal.

I will not discuss possible impact on non-Indiana licenses due to space considerations, and because I am only licensed in Indiana. Before discussing the few “pros" to refusing a chemical test in certain limited cases, I will enumerate some of the many “cons". Please note that I am not suggesting that you submit to a preliminary breath test (PBT) that the officer may offer at the scene, but only the certified breath, blood or urine test offered when the officer reads you the Implied Consent warning.

Reasons not to refuse:

  1. One year license suspension. As stated above, an Indiana driver will suffer a one year administrative license suspension for refusing a chemical test, whereas taking and failing a chemical test only requires a 180 day administrative suspension. Furthermore, the suspension for failing may be credited against a later court-ordered suspension upon conviction. A refusal suspension does not count against a suspension after conviction.

  2. Possibility of a search warrant. A disturbing and growing trend in Indiana is for police to obtain a warrant, usually for a blood draw, after a person refuses a breath test. If this happens, the person faces the worst of both worlds; he will have his license suspended for refusing the breath test, plus he will have to contest a much more accurate blood test at trial.

  3. You might have tested under the limit. I have had many clients tell me they refused a breath test because they heard it’s always a good idea. Some of these clients told me they had only had a small amount to drink, or had paced themselves over a long period of time. If they had taken the breath test and passed, they most likely would not have been arrested in the first place. Refusing the breath test pretty much guarantees you will be arrested.

  4. You might be cutting off the possibility of a favorable plea agreement. Every county handles drunk driving cases differently, but in those counties that offer reductions to Reckless Driving or diversions, refusing the breath test will usually make you ineligible for such treatment. In other counties, jail time or community service might be tacked onto your sentence.

  5. Your refusal will be mentioned to the jury at trial. Whatever tactical advantage may result from a refusal if you go to trial, it is reduced by the fact that the State has the right to tell the jury that you refused. A typical juror may well conclude that you refused because you were drunk and knew you would fail. This is worse than having a breath test slightly over the limit, for example, which could be attacked by an expert at trial.

Reasons a refusal might be preferable:

  1. If there is NO other evidence of alcohol or drug involvement. Sometimes there is no physical evidence of alcohol or drug involvement, and a chemical test would be the only tangible evidence available to the State. This is a rare situation.

  2. The driver was so intoxicated that the result would be damning. If the chemical test would have resulted in a high reading, a refusal might be better.

  3. The case MUST be taken to trial. If the client’s past driving record is so bad, or the case is so aggravated, that plea negotiations are not an option, then a refusal may be better than a high test result. This list of pros and cons is by no means exhaustive. Every case is different, and under the stress of the moment, without access to legal counsel, you will be hard-pressed to choose wisely. The safer choice, if you have any doubt, is to take the test and then find a qualified DUI attorney to help you through the process.

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