IndyBar: To Refuse or Not to Refuse: That is the Question


By Joel Hand, Hand Ponist Smith & Rayl LLC

You find yourself having been pulled over by a police officer after you have had a couple of glasses of wine or beers with dinner. After asking you for your license and registration, the officer asks you, “how much have you had to drink this evening?” Do you answer the question honestly and say that you have had two glasses of wine? Do you lie and say that you have not had anything to drink, or do you say you’ve had just one glass of wine? Do you refuse to answer the question altogether? If you find yourself in that situation, it is almost certain that the officer already believes you have been drinking. Police usually don’t ask how much a driver has had to drink during a routine stop for speeding in the middle of the day without reason to suspect alcohol consumption. Regardless of your answer, the officer will likely tell you to step out of the car.

The reason for telling you to get out of the car is for the officer to continue with an investigation to determine if you are guilty of violating one or more laws prohibiting impaired driving. Those laws are loosely referred to by various names: driving while intoxicated, driving under the influence, operating while intoxicated, operating a vehicle while intoxicated, DWI, DUI, OWI, OVWI and probably others. The officer’s investigation will likely include one or more tests intended to determine whether you have been driving with more than the legally allowable limit of alcohol in your body, measured either as 0.08 gram of alcohol per 210 liters of breath or 0.08 gram of alcohol per 100 milliliters of blood, sometimes referred to inaccurately as simply 0.08 percent.

Field Sobriety Tests

The first test a driver is likely to encounter is a field sobriety test conducted when and where the driver is pulled over. There are two categories of field sobriety tests: standardized and nonstandardized. Standardized Field Sobriety Tests (SFSTs) are established by the National Highway Traffic Safety Administration (NHTSA). They are called “standardized” because they should be administered in the same order and same manner every single time. NHTSA has a prescribed protocol that governs the order in which the SFSTs are supposed to be given, how officers are supposed to instruct the driver for each test and how they are supposed to score the driver’s performance on each test. The three Standardized Field Sobriety Tests are the Horizontal Gaze Nystagmus, the Nine Step Walk and Turn, and the One Leg Stand. When administered properly, following all the standardized procedures and under all the proper environmental conditions, the SFSTs are supposed to be able to accurately predict if a person’s alcohol concentration is over the legal limit.

Some officers may also conduct one or more of the many nonstandardized field sobriety tests. Examples of nonstandardized tests include counting backward, doing a finger-counting test, touching finger to nose, saying the alphabet backward, or saying the alphabet from the letter C to the letter N, or some other variation. (If you’re asked to recite a portion of the alphabet, you may be instructed not to sing it because it’s easier to recall the lyrics to the alphabet song than to recall the alphabet itself.)

Chemical Tests

In addition to field sobriety tests, there are also chemical tests for alcohol, including breath tests and blood tests. However, not all chemical tests are treated equally. One chemical test is a portable breath test (PBT) that officers use at the scene of the traffic stop, sometimes called a Breathalyzer (one of the brand names under which PBTs are sold). Officers sometimes encourage drivers to consent to the PBT by telling them that they will be permitted to drive themselves home if they pass. That is very rarely true. (Yes, the police are permitted to lie during an investigation.) Usually, an officer who asks someone to blow into a portable breath test has already concluded that that the driver is probably intoxicated or impaired. However, submitting to a portable breath test is just giving additional evidence to the officer to use against you. If the officer concludes there is probable cause to believe the driver has violated the law, the officer is supposed to advise the driver of the Indiana Implied Consent Law. Typically, the officer will read this from a card, which states, “I have probable cause to believe that you have operated a vehicle while intoxicated. I must now offer you the opportunity to submit to a chemical test and inform you that your refusal to submit to a chemical test will result in the suspension of your driving privileges for one year. Will you now take a chemical test?” The chemical test that the officer offers will be either a certified breath test or a blood test. In contrast to a PBT, a certified breath test is conducted at a fixed location, such as a police station or jail, under controlled conditions. A blood test requires that a sample of the driver’s blood be drawn under carefully controlled conditions by a phlebotomist (someone trained to draw blood samples such as a nurse or EMT) and analyzed in a laboratory.

Legal Ramifications of Sobriety Tests

The various types of sobriety tests differ in legal consequence in two main ways: whether the results are admissible in court and whether refusal to submit to the test carries legal consequences. Generally, evidence from standardized field sobriety tests and certified chemical tests are admissible in court, which means they can be used to prove guilt of driving above the legal limit and operating while intoxicated. Some judges will permit officers to testify about their observations of a driver’s performance of a nonstandardized test as well as the standardized field sobriety tests. In addition, even though the results of a PBT are inadmissible in court to prove guilt, the results of a PBT can give the officers probable cause to believe a crime has been committed. If so, the driver can be arrested, after which a certified chemical test will likely be administered. The consequence of refusing to submit to a sobriety test depends dramatically on the type of test refused. In Indiana, a driver may refuse to submit to any field sobriety test, standardized or not, or to blow into a PBT. Refusing field sobriety tests will not result in a loss of driving privileges. However, if the officer has additional evidence of impairment (slurred speech, bloodshot eyes, unsteady balance just to name a few), those observations alone can be enough to justify an arrest and/or a search warrant to obtain a blood test. In contrast, driving privileges will be suspended for refusing to consent to a certified breath test or a blood test. In addition, the police may be able to obtain a search warrant that will require the driver to submit to a certified chemical test. Moreover, in some states (but not Indiana) refusing to submit to a certified chemical test is a crime all by itself.

If you are facing charges related drunk driving or driving under the influence of alcohol or other substances, be certain to contact a local criminal defense attorney.•

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