DUI: Should I Take The Breath Test?

January 24, 2018

By Keffer Hirschauer LLP

DUI: Should I Take The Breath Test?

During a typical DUI investigation, law enforcement officers typically offer two types of breath tests. The first type is a portable breath test or PBT. The instrument is a handheld device that the officer usually keeps in his car, and this test is usually offered on the scene of the traffic stop. The second type is called a certified breath test or certified chemical test. In Indiana, the instrument that law enforcement uses is the EC-IR 2, and this instrument is the size of a small suitcase and is usually kept at the police station or local jail.

In many cases, the PBT, if used at all, will be offered on the scene of an investigation. There is not a penalty for refusing this test (or any field sobriety test, for that matter), and the results of this test are not admissible in court. However, police officers can use the test to develop probable cause to offer a certified chemical test.

However, when someone provides a PBT test result and/or the officer gains probable cause via other evidence, the officer will “offer” a certified chemical test to the individual. Prior to the test being performed, the officer will typically advise the individual of Indiana’s 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 submitted to a chemical test will result in the suspensions of your driving privileges for one (1) year. If you have a prior conviction, your driving privileges will be suspended for two (2) 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 a certified chemical test will result in at least a one-year license suspension. Moreover, this “refusal suspension” is not eligible for specialized driving privileges (driving privileges for work-related driving while suspended). To make matters more problematic, when an individual refuses a certified chemical test, officers can seek a search warrant for the individual’s blood to be drawn at a hospital and tested. And, while this process can be time consuming and some officers may elect to stop the investigation at this point, many police departments are now switching to electronic search warrants in order to expedite this process. If properly obtained in a timely fashion and the proper foundation is established in court, blood test results are admissible.

With a team of former Fatal Alcohol Crash Team prosecutors now representing individuals accused of drunk driving, Keffer Hirschauer LLP stands ready to provide its clients with trusted representation and accurate information regarding the law, and its application to their individualized case. Act now and call us today at (317) 857-0160 or 1-800-NOT-GUILTY.