Operating While Intoxicated – Chemical Tests

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If you are stopped by a police officer in Indiana for operating while intoxicated (OWI), you will likely be asked to provide some type of chemical test, commonly either a breath or blood sample, in order to determine your blood alcohol content (BAC). Your BAC provides an indication of how much alcohol is in your blood and anything above .08% in Indiana will send you to jail.

 

What is implied consent?

Under Indiana Code § 9-30-6-1, “a person who operates a vehicle impli[citly] consents to submit to the chemical test provisions…” IC § 9-30-6-1 (Burns, Lexis Advance through P.L.210-2018, with gaps of P.L.177-2018, P.L.189-2018, and P.L.208-2018, from the Second Regular Session of the 120th General Assembly). This means if you are stopped by a police officer and are suspected of operating while intoxicated, because you operate a vehicle in Indiana, you are obligated to take a chemical test. If you refuse to submit to a chemical test, then you are in violation of Indiana’s implied consent law and could face additional charges. Additionally, a prosecutor may try to state your refusal was actually an admission of guilt.

What constitutes a refusal?

According to Burnell, “… a refusal to submit to a chemical test occurs when the conduct of the motorist is such that a reasonable person in the officer’s position would be justified in believing the motorist was capable of refusal and manifested an unwillingness to submit to the test.” Burnell v. State, 56 N.E.3d 1146, 1151 (Ind. 2016). Essentially, if a police officer reasonably believes you are capable of assenting to the test but you simply do not comply, this will be construed as a refusal to take the chemical test.

If you choose to refuse a chemical test, be advised you risk your license being suspended by the Indiana Bureau of Motor Vehicles (BMV). IC § 9-30-6-7 (Burns, Lexis Advance through P.L.210-2018, with gaps of P.L.177-2018, P.L.189-2018, and P.L.208-2018, from the Second Regular Session of the 120th General Assembly).

Do police officers need a warrant for a blood test?

Yes, in Indiana police officers must obtain a warrant from a judge before taking you to have a chemical blood test administered because of the invasive nature of the test.

If you are asked to submit to any type of OWI test, you might wonder if you really have to submit or if you can refuse in order to limit potential evidence mounting against you. In order to make this decision, you may exercise your right to contact an attorney. Call Hayes Law Office at 317-759-1515 and together we can help you decide what to do.