Indiana’s Implied Consent Law: Refusal to Take a Blood, Breath, or Urine Test

If you were involved in an accident or are arrested for OWI, can you refuse to submit to a portable breath test or chemical testing?

Under Indiana’s implied consent law, any person who operates a vehicle impliedly consents to submit to a chemical test of breath, blood, urine, and/or another bodily substance. Any person who operates a vehicle that was involved in a fatal accident or an accident involving serious bodily injury is deemed to have given consent to a portable breath test (PBT) and a chemical test.

Under What Circumstances Will a PBT and/or a Chemical Test be Requested?

Probable cause to believe a motorist is operating while intoxicated. All motorists in Indiana are required to submit to chemical testing if there’s probable cause to believe the person has committed an “operating while intoxicated” (OWI) offense. A motorist must provide a blood, urine, or other bodily substance sample at the request of an officer if:

  • the officer has probable cause to believe the person is OWI, and
  • the person has been involved in a motor vehicle accident that resulted in the serious bodily injury or death of another.

The chemical test must be administered within three hours after the officer had probable cause to believe the person was OWI.

Reason to believe a driver was involved in an accident. An officer will administer a PBT if there’s reason to believe a person was operating a vehicle that was involved in a fatal accident or an accident involving serious bodily injury. The driver involved in an accident must submit to a chemical test if:

  • the results of the PBT indicate the presence of alcohol
  • the results of the PBT don’t indicate the presence of alcohol but the officer has probable cause to believe the driver is under the influence of a controlled substance or another drug, or
  • the driver refused to take the PBT.

The chemical test must be administered within three hours after the vehicle accident.

Consequences of Refusing a Test

Consequences of refusing a test can include:

  • a driver’s license suspension
  • ineligibility for specialized driving privileges
  • ineligibility for reinstatement of driving privileges if found not guilty of the OWI charge
  • consecutive license suspensions
  • conviction of an infraction, and
  • evidence of the refusal is admissible in a criminal case.

Administrative License Suspension

The Indiana Bureau of Motor Vehicles (BMV) will suspend the license of any driver who unlawfully refuses to take a PBT and/or chemical test. The suspension periods are:

  • one year, or
  • two years if the offender has at least one previous OWI conviction.

When a driver refuses to take a chemical test, the arresting officer can immediately take the person’s license. The suspension generally takes effect seven days after the date of the notice of suspension.

Ineligibility for Specialized Driving Privileges

Generally, a motorist whose license has been administratively suspended can obtain specialized driving privileges. These privileges allow the offender to drive during the suspension period as long as an ignition interlock device (IID) is installed in the vehicle. However, motorists who refused to submit to chemical testing aren’t eligible for specialized driving privileges.

Ineligibility for Reinstatement of Driving Privileges if Found Not Guilty of the OWI Charge

The BMV will generally rescind an administrative suspension and reinstate an offender’s driving privileges if:

  • the criminal OWI charge is dismissed, or
  • the defendant was found not guilty of the OWI charge.

However, an offender who refused to submit to chemical testing at the request of an officer having probable cause to believe the offender committed an OWI offense isn’t eligible for reinstatement of driving privileges.

Consecutive License Suspensions

Typically, a defendant whose license has been suspended by the court as a result of a criminal OWI conviction will receive credit for the time the offender’s license was administratively suspended. But an offender whose license was administratively suspended for refusing to take a chemical test isn’t eligible to receive credit towards the court suspension.

Conviction of an Infraction and Fine

A motorist who refused to take a PBT and/or chemical test at the request of an officer having reason to believe the person operated a vehicle that was involved in a fatal accident or an accident involving serious bodily injury can be convicted of a class C infraction. If the motorist has at least one previous OWI conviction, a conviction for the refusal is a class A infraction.

A class C infraction is punishable by a fine of up to $500, plus court costs. The maximum fine for a class A infraction is $10,000.

Evidence of the Refusal Can Be Used Against a Defendant in a Criminal Case

If a defendant refused to submit to a chemical test, evidence of the refusal is admissible in a criminal case. This rule allows the prosecutor to suggest to the judge or jury that you refused the test because you knew you would fail.

Deciding Whether to Submit to a PBT and/or Chemical Testing

A driver can refuse to submit to testing, but the penalties for refusing are generally more severe than those for failing a test. For example, the duration of license suspensions for test refusals are longer than suspensions for test failures.

There are also circumstances allowing police to administer a chemical test without the driver’s consent. An officer can obtain a blood, urine, or other bodily substance sample if there’s probable cause to believe the person committed an OWI offense and the person has been involved in a motor vehicle accident that resulted in the serious bodily injury or death of another. If the motorist doesn’t consent and resists, the officer may use reasonable force to obtain a sample.

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