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DUI: What is implied consent?

During a standard DUI investigation, a police officer will typically offer two types of breath tests. The first type is a portable breath test or PBT. The machine is a relatively small handheld device that the officer usually keeps in his vehicle, and this test is usually offered on the side of the road at 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 larger in size (think 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 specific results of this test are usually 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?”

Implied Consent in Indiana

The legal concept of “implied consent” centers on a statute that allows for a pre-hearing administrative suspension of a driver’s license for any individual who “refuses” to submit to a chemical test for intoxication. It has been deemed constitutional so long as the individual is assured or able to have a prompt post-suspension hearing.

See Mackey v. Montrym, 443 U.S. 1 (1979). Courts have found that this is constitutionally permissible in part because of the State’s interest in keeping its highways save and removing dangers posed to the public in the form of drunk drivers on the highways. Roberts v. State, 474 N.E.2d 144 (Ind. Ct. App. 1985). However, to be sure, the facts and circumstances of each case and your health status at the time test was offered can be factors in determining whether an individual “refused” or simply was unable to take the test.

If an individual is read implied consent and offered a certified chemical test, the options are pretty straightforward. Unlike a PBT, where there is no penalty for declining, refusing a certified chemical test will likely 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 potentially worse, 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 despite the refusal. And, while the warrant process can be time consuming and some officers may elect to stop the investigation at this point, many officers can obtain telephonic or electronic search warrants in order to speed up this process. If properly obtained in a timely manner and the proper foundation is established in court, blood test results are admissible.

With a team of former deputy 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.

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