The Indiana Supreme Court will decide whether any answer short of an “unqualified, unequivocal assent” to a chemical test constitutes a refusal resulting in a driver’s license suspension, as the Indiana Court of Appeals concluded in September.
Judge Rudolph Pyle III wrote the opinion in which Judge Terry Crone concurred with the result affirming Kristy Burnell’s license suspension, but would not go as far as Pyle’s holding. Judge Elaine Brown dissented and would reinstate Burnell’s license, finding Burnell did not refuse the request to perform a chemical test.
After being pulled over, police suspected she was intoxicated. She never assented to the request to take a chemical test, saying “Well, I mean if I take it, I’m going to jail,” then said, “Well, if I refuse, I’m going to jail either way. So yeah, I guess I gotta take it,” according to the record.
“Just as an officer’s implied consent advisement must unequivocally inform a motorist that his or her refusal will result in suspension of their driving privileges, a motorist’s response must also be unequivocal to the proper offer of a chemical test. The statute as written leaves a motorist no room for negotiation or debate,” Pyle wrote. “Allowing any equivocal response from a motorist when confronted with a properly offered chemical test does not comport with the mandatory language of the statute or its purpose. Accordingly, we hold that anything short of an unqualified, unequivocal assent to a properly offered chemical test constitutes a refusal.”
The case is Kristy Burnell v. State of Indiana, 29S02-1512-CR-707.
The justices denied transfer to 18 other cases last week. The full list is available on the court’s website.