In Indiana, you can generally refuse a portable breath test (sometimes referred to as a preliminary breath test) during a routine DUI investigation that does not involve an accident. However, refusing a properly offered certified chemical test can suspend your driver’s license for one or two years. Indiana’s implied consent law makes that distinction critical.
The difference between these two tests can determine whether you’re allowed to keep driving while your DUI case moves through court.
What Does Indiana’s Implied Consent Law Actually Mean?
Picture this. You’ve had a long day at work. You meet some friends for dinner, have a couple of drinks, and head home.
Suddenly, you see flashing red and blue lights in your rearview mirror.
You pull over. The officer approaches, asks for your license and registration, and starts asking questions.
Then comes the question that can change everything: Will you submit to a chemical test?
Most people assume they have two equally acceptable choices. After all, this is America. If a police officer asks you a question, shouldn’t you be allowed to say no?
Not necessarily.
Under Indiana Code § 9-30-6-1, operating a vehicle in Indiana means you’ve already given implied consent to chemical testing.
In plain English, driving on Indiana roads comes with certain conditions. One is agreeing to chemical testing when police have the necessary legal justification.
That doesn’t mean officers can demand a chemical test from every driver they stop. They still need probable cause to believe you’ve committed an intoxicated-driving offense.
Can You Refuse a Portable Breathalyzer Test in Indiana?
Yes. During a routine Indiana DUI investigation that does not involve an accident, you can generally refuse a portable breath test without triggering an implied consent refusal suspension.
The distinction matters because police use two different types of breath tests.
What’s the Difference Between a Portable Breath Test and a Certified Chemical Test?
A portable breath test, sometimes called a PBT, is the small handheld device officers carry during roadside investigations.
A certified chemical test is different. It generally involves:
- Certified breath testing: A properly administered test using approved equipment, often at a police station. Currently, Indiana uses the EC/IR II breath testing machine.
- Blood testing: A blood draw that can detect alcohol and certain drugs or other substances.
The certified breath-testing machine may look like the first fax machine ever invented. Its appearance isn’t particularly impressive, but its results can carry significant legal weight.
A portable breath test helps officers investigate possible intoxication. A properly administered certified chemical test can produce evidence used in court.
Don’t confuse the two. The consequences of refusing them can be dramatically different.
When Can Police Require a Chemical Test During an Indiana DUI Investigation?
Police must have probable cause before invoking Indiana’s implied consent procedures.
Probable cause means an officer has sufficient facts to reasonably believe an intoxicated-driving offense occurred.
Officers may consider observations such as:
- The odor of alcohol coming from a driver’s breath.
- Bloodshot or watery eyes.
- Unsteady balance when exiting the vehicle.
- Difficulty locating a license or registration.
- Other behavior suggesting possible impairment.
No single observation automatically establishes probable cause. The circumstances must be evaluated together.
For example, having bloodshot eyes doesn’t necessarily mean someone is intoxicated. Maybe they’ve been working a 14-hour shift.
An experienced Indiana DUI attorney examines whether the officer’s observations actually justified requesting a certified chemical test.
What Counts as Refusing a Chemical Test in Indiana?
A chemical test refusal isn’t limited to saying the word “no.”
Under Indiana Code § 9-30-6-2, drivers must submit to properly offered chemical tests under the implied consent law.
Police may interpret hesitation, conditional responses, or failure to cooperate as refusal.
Consider these responses:
- “Can I call my attorney first?”
- “Can I talk to my mom?”
- “Do I really have to do this?”
- “I don’t want to take the test.”
These responses can create refusal issues, even when the driver never expressly says no.
Simply asking an officer to repeat or clarify instructions doesn’t automatically establish a lawful refusal. The driver’s response and surrounding circumstances matter.
The practical lesson is straightforward: Don’t assume that avoiding the word “no” prevents a refusal suspension.
What Happens if the Officer Doesn’t Properly Explain Implied Consent?
Indiana officers must follow the applicable implied consent procedures, including communicating the consequences of refusing a chemical test.
Officers commonly use standardized advisements to explain those consequences.
If the officer provides an incorrect warning or fails to follow required procedures, an attorney may have grounds to challenge the refusal.
Not every mistake automatically invalidates a suspension. The actual warning, the driver’s response, and the governing law all matter.
How Long Will Your License Be Suspended for Refusing a Chemical Test in Indiana?
Under Indiana Code § 9-30-6-9, refusing a properly offered chemical test can result in substantial license suspension.
|
Driver’s history |
Refusal suspension |
|
No qualifying prior DUI conviction |
1 year |
|
Qualifying prior DUI conviction |
2 years |
These administrative consequences can apply even before your criminal DUI case is resolved.
The Indiana Bureau of Motor Vehicles (BMV) acts on the court’s refusal determination.
That means you could be fighting a DUI charge in Marion County, Hamilton County, or another Indiana court while simultaneously dealing with a suspended license.
And losing your ability to drive can sometimes create problems more immediate than the criminal charge itself.
Can You Get a Hardship License After Refusing a Chemical Test?
Indiana no longer has “hardship licenses” and instead created a replacement called Specialized Driving Privileges (SDP). Indiana generally prohibits specialized driving privileges during an implied consent refusal suspension. However, a separate statutory provision allows certain ignition interlock relief.
Under Indiana Code § 9-30-6-8, a court may permit qualifying driving through an ignition interlock arrangement.
That relief is discretionary. A judge isn’t required to grant it.
This distinction matters because specialized driving privileges can otherwise allow eligible drivers to handle essential obligations, including:
- Traveling to work or school.
- Attending medical appointments.
- Meeting childcare responsibilities.
- Handling certain family obligations.
A refusal can eliminate options that might otherwise be available during an Indiana DUI case.
Does Indiana Have a Three-Hour Rule for Chemical Testing?
Yes. Indiana law establishes an important three-hour period for certain chemical test evidence.
Under Indiana Code § 9-30-6-15, qualifying chemical test results obtained within three hours of operation can create a rebuttable presumption concerning intoxication.
In ordinary language, timely testing can make the prosecutor’s job easier.
The three-hour period is measured from the relevant vehicle operation, not simply when an officer first suspects impairment.
A test conducted outside that period isn’t automatically inadmissible. However, the State may lose an important evidentiary advantage.
A defense attorney can examine the testing timeline, collection procedures, and reliability of the results.
Can Prosecutors Use Your Chemical Test Refusal Against You?
Yes. Indiana law allows evidence of a chemical test refusal to be introduced in a DUI prosecution.
Some drivers assume refusing testing means the prosecutor will have less evidence.
Unfortunately, that’s not how it works.
Police may still obtain a warrant for a blood draw. Prosecutors may then have both the chemical test results and evidence of the earlier refusal.
A refusal can also complicate negotiations because the driver’s ability to regain driving privileges becomes an additional concern.
This is why an Indiana DUI defense should examine the entire investigation, not simply the chemical test result.
What Should You Do After an Indiana DUI Arrest or Chemical Test Refusal?
A DUI arrest doesn’t automatically mean the prosecution has an airtight case.
An attorney can review whether police had probable cause, followed implied consent procedures, and properly administered chemical testing.
The timing of the test, the officer’s warnings, and the circumstances surrounding an alleged refusal can all matter.
If you’re facing an Indiana DUI charge or chemical test refusal suspension, contact the Marc Lopez Law Firm at 463-946-0521 to speak with a lawyer today.
And remember—always plead the 5th.
