In Indiana, there are a wide range of consequences for operating a vehicle while intoxicated. Most Hoosiers are well aware that there are substantial risks associated with OWI, including criminal convictions and jail time. However, many are not aware of Indiana’s Implied Consent Law and the impact it may have on an OWI case and a defendant’s foreseeable future. This post will review the Implied Consent Law and how it applies to each and every one of us who drive in Indiana.
The Implied Consent Law generally states that a person who operates a vehicle impliedly consents to a chemical test as a condition of operating a vehicle in Indiana. In other words, you really have no choice but to submit to a chemical test properly offered to you by a police officer. There are harsh penalties for refusing such a chemical test.
First, it is important to distinguish between a chemical test and the other types of tests that may be offered during the course of a traffic stop or OWI investigation. A preliminary breath test or “PBT” (the handheld breathalyzer device that officers carry with them while on patrol) is not a chemical test as contemplated by Indiana’s Implied Consent Law. The standardized field sobriety tests typically offered roadside are not chemical tests either. “Chemical test” under the Implied Consent law means either (1) a blood test or (2) a breath test conducted by a certified operator using a certified instrument/machine (typically handled at a police station on an “EC/IR II” breathalyzer). The State of Indiana regularly inspects each police department’s EC/IR II, and maintains certifications for each instrument and each certified operator.
So, when can a police officer offer a driver a chemical test? Indiana code requires an officer to offer a chemical test to a driver within three hours of operation when the officer has probable cause to believe that the driver operated while intoxicated. Police officers use a combination of the circumstances of the stop, initial contact and observations of the driver, and the results of any standardized field sobriety tests in order to determine whether they have probable cause to offer the chemical test.
If the officer believes probable cause exists, the officer will then inform the driver of the Implied Consent Law and the possible consequences of refusing the chemical test. The officer will typically read the advisement from an implied consent card that officers carry, which states as follows:
“I am a police officer; I have probable cause to believe that you have 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 the suspension of your diving 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 the suspension of your driving privileges for two years. Will you now take a chemical test?”
As you can see, the Implied Consent Law requires the BMV to suspend a driver’s driving privileges for one to two years for refusing a chemical test, depending on the driver’s history of OWI. That refusal suspension is further required to run first, and in addition to, any other suspension resulting from an OWI conviction. A refusal suspension also renders the driver statutorily ineligible for specialized driving privileges, meaning that there is no possibility of having driving privileges restored during the term of the refusal suspension.
Clearly, a driver’s decision to submit to or refuse a chemical test is an important one with potentially devastating consequences. An experienced OWI attorney can help navigate the nuances associated with OWI investigations and charges, and will be able to help mitigate any resulting penalties. If you or a loved one have been charged with OWI, contact us at any time via email at [email protected] or by phone at (812) 539-2111. We will fight for you.
Disclaimer: this post is made for informational purposes only, and should not be construed as legal advice. Please consult an attorney with questions regarding a specific case.