The Indiana Supreme Court declined to go as far as one Court of Appeals judge did in declaring that “anything short of an unqualified, unequivocal assent to a properly offered chemical test constitutes a refusal.” In affirming the administrative suspension of a woman’s driver’s license, the justices concluded that whether someone refuses to submit to a chemical test depends on the circumstances of each case.
Kristy Burnell was pulled over by Carmel Police officer David Kinyon in July 2014 after she ran a stop sign and made an improper turn. During the traffic stop, the officer believed Burnell was intoxicated so he administered three field sobriety tests, which she failed. He then asked her if she would consent to taking a chemical test and if she did not, her license would be suspended for one year, two if she had a previous OWI conviction.
Burnell told the officer she had a previous OWI conviction in Florida and repeatedly asked to speak to her uncle, who is a police officer. Kinyon kept asking if she was going to consent, to which she eventually said, “Well if I refuse, I’m going to jail either way. So, yeah, I guess I gotta can take it.”
Later, she attempted to walk away twice from the officers, resulting in her being handcuffed.
Burnell sought judicial review of the license suspension, which the trial court affirmed. So did the Indiana Court of Appeals in a divided opinion with each judge writing separately. Judge Rudolph Pyle wrote the lead opinion, in which the court held there needed to be an unqualified, unequivocal assent to the chemical test or else one has refused the test.
Burnell cited several cases to support her argument that her behavior showed she didn’t refuse to consent to the test, but “the tie binding these cases together is that even without saying ‘no’ or “I refuse’ a refusal nonetheless may be established on the basis of conduct alone if the motorist has clearly been asked to take a test,” Justice Robert Rucker wrote for the unanimous court.
But the justices also don’t embrace Pyle’s proposition, finding it could be problematic if a motorist doesn’t speak or understand the language or has a non-alcohol-related auditory impairment such that she doesn’t hear the officer.
“Instead we think it more appropriate to adopt an approach that takes into consideration the facts and circumstances of each case. Hence, we hold a refusal to submit to a chemical test occurs when the conduct of the motorist is such that a reasonable person in the officer’s position would be justified in believing the motorist was capable of refusal and manifested an unwillingness to submit to the test,” he wrote.
Here, Burnell had the burden to show she did not refuse to take the test and she failed to carry that burden based on the evidence presented. The case is Kristy Burnell v. State of Indiana, 29S02-1512-CR-707.