The breath test refusal myth---as it goes in Hamilton County, Indiana

I can't tell you how many times clients have told me "I thought I was supposed to refuse to take the test."  Nooooo!!  Living with a DUI arrest and all that comes with it is difficult enough.  Refusing to take the chemical test makes it so much more difficult.  The theory behind advice to refuse the chemical test is that you don't provide evidence of your alcohol level, so therefore it will be more difficult for the State to prove you guilty.  That may have been true years ago.  It is not now....at least in Hamilton County.

You're pulled over for suspicion of operating while intoxicated in Hamilton County.  What will happen?  After a battery of field sobriety tests the police officer will read an implied consent advisal that will go something like this: "I have probable cause to believe you have operated a vehicle while intoxicated.  I must now offer you the opportunity to take a chemical test.  If you refuse to take the test your license will be suspended for one year (or two years if you have a prior DUI conviction).  Will you take a chemical test."  What they don't tell you (if you're stopped in Hamilton County) is that if you refuse to take the test, then they will seek a search warrant to draw your blood.  In all likelihood the judge will issue the warrant, they'll take you to the hospital, and then a nurse will draw your blood, which is then tested for alcohol.  You will then go to jail, facing the same charges you would have had you taken and failed a breath test.

You may be wondering what's the big deal.  If it's your first arrest, and you submit to and fail the test, usually you would be eligible for a hardship/probationary license to drive to and from work after only 30 days of suspension.  But if you refused to take the test, you are ineligible for that hardship/probationary license, and our best case scenario will be to try and convince the judge that it is in the best interest of society to terminate the refusal suspension early.  And even if the early termination is successful, there must be another mandatory minimum 90 days of suspension after the termination of the refusal suspension.  More often than not, the total time of license suspension for a first offender who refuses the breath test is 5 - 6 months.  Likely to be a lot less if you submit to the chemical test.

Matters are even worse for the person who has a prior conviction(s) for DUI.  Refusing to take the breath test (or any chemical test) will result in a two year license suspension.  AND, if convicted, there is a minimum mandatory one year suspension tacked on to the refusal suspension.  So instead of being suspended one year for being convicted after taking and failing the test, the multiple offender who refuses the test likely ends up with a 3-year suspension.  We can always argue to the judge that it's in the best interest of society to terminate the refusal early, but your chances of a judge granting that are not good, considering this is your second or more offense.

Consider this horror story, which is not all that uncommon.  A person is stopped for suspicion of drunk driving.  He refuses all tests, and as explained above, is taken to the hospital to have his blood drawn.  Unfortunately, the results of the blood test are not immediately available.  Consequently, he is arrested, jailed and charged with a DUI.  Months later the results come back under .08, the presumed level of intoxication.  While the DUI charge may ultimately be dismissed, the accused has paid thousands of dollars in bond and attorney fees.  Simply taking the breath test would have saved him a night in jail, thousands of dollars and a ton of anxiety.

The easiest way to avoid all this is don't drink and drive.  But if you find yourself in this unfortunate position, take the breath test.  If you wish to discuss this or any criminal defense matter further, please contact me.