The Toughest DUI Question May Be The Easiest: Do I Take the Breath Test?

October 03, 2016

By Keffer Hirschauer LLP

The answer depends on what type of test the officer is offering. During a DUI investigation, a police officer may offer two different types of breath tests. The first one is called a portable breath test or PBT. This is a handheld device that the officer usually keeps in his car, and he will offer this test to people he is investigating at the scene of the traffic stop. The second test is called a certified breath test. In Indiana, the instrument that law enforcement uses is the EC-IR 2. And this breath test is requested near the conclusion of the investigation and is performed at a police station or local jail.

In most cases, the PBT, if used at all, will be offered at the scene of the traffic stop or accident after field sobriety tests have been completed. There is no penalty for refusing this test, or any field sobriety test; and the results are not admissible in court as there are no regulations in place for the calibration of the device or the training of officers on how to use them. However, officers use this test to gain probable cause to offer a certified test (breath and/or blood).

However, if someone provides a PBT breath result and the officer gains probable cause, the officer will offer the individual a certified chemical test. Before this test is performed, the officer generally reads the Indiana an implied consent warning. This warning reads: “I have probable cause to believe that you have operated a vehicle while intoxicated. I must now offer you an opportunity to submit to a certified chemical test and inform you that your failure to submit to a chemical test will result in the suspension of your driving privileges for one year. If you have a prior conviction, your driving privileges will be suspended for two years. Will you now take a test?”

At this point, the options are pretty simple. Unlike PBT’s, where there is no penalty for declining, refusing to take a certified chemical test will result in a, minimum, one-year suspension. Moreover, this “refusal suspension” is not eligible for specialized, or hardship, driving privileges. To make things more problematic for individuals who refuse to take a certified chemical test, officers can seek search warrants to have the individuals’ blood drawn at a hospital and tested. And, while this process used to be so time consuming that an officer might give up rather than go to the trouble, many departments are now switching to electronic search warrants in order expedite this process.

If you have been charged with a DUI, contact the attorneys at Keffer Hirschauer LLP today. We stand ready to provide our clients with trusted representation and accurate information regarding the law, and its application to their individualized case. Act now and contact us today at (317) 857-0160.