Imagine you’ve just been pulled over by a police officer. He’s asked you to get out of your car and perform various roadside tests—following a flashlight pen, walking an imaginary line, and standing on one leg. You’re probably tired from a hard day’s work, and on top of that, the whole experience is foreign to you. After doing everything the officer requests, he asks you to take a breath test down at the station.
Even though it’s phrased as a request, this is required. If an officer believes you’ve operated a vehicle while intoxicated, he must read you the Indiana Implied Consent Law. Basically, this means the officer will tell you that he has probable cause to detain you for OVWI, and he’s offering you a chemical test. If you answer anything other than YES, the officer is within his rights to report you as having refused.
You always want to say YES to a chemical test. If you react with anything less than unmistakable submission, the officer can mark it as a refusal. Taking too long to respond to the request? You’ve refused a chemical test. Trying to ask a follow-up question? You’ve refused a chemical test. Disoriented and panicky and don’t understand what’s being asked of you? You’ve refused a chemical test. What does a refusal mean, and how does it affect your case?
A refusal suspension is bad news. Your driver’s license will automatically be suspended for one year from the date of your Initial Hearing. If you have a previous DUI / OVWI conviction, your license will be suspended for a minimum of two years. Worst of all, there’s no short-term solution. Indiana doesn’t offer Specialized Driving Privileges for people with a refusal suspension. This is one of the harshest laws in the state.
Unfortunately, there are very few ways to combat a refusal suspension. The most direct method is to request a Refusal Hearing. In this scenario, the Judge considers the conflicting accounts (yours vs. the arresting officer’s) and decides whether it was more likely than not that you indeed refused the chemical test. The burden of proof in these cases is preponderance of the evidence, and it’s very difficult to overcome.
Another option is to convince the Deputy Prosecutor to agree to terminate the refusal (or alternatively, to stipulate that no refusal occurred). This is just as difficult as it sounds. Some prosecutors won’t even entertain the idea, and the ones who do usually only consider it after a defense attorney has found some sort of serious problem with the State’s case.
The last way to fight a refusal is to ask the Judge to terminate it in the best interests of society once the case is resolved. This is a vague standard with absolutely no guidance from case law. For a number of reasons, judges are often reluctant to terminate a refusal and its accompanying suspension.
Without a doubt, you don’t want to be facing an Indiana DUI / OVWI and a chemical test refusal. If you’re unlucky enough to be in this situation, you need an experienced DUI / OVWI attorney who can put you in the best possible position to be driving in less than a year.
If you or a loved one is dealing with DUI / OVWI charges or a chemical test refusal, call (or email) the Marc Lopez Law Firm at 317-632-3642. And remember—always plead the 5th!