Welcome again to another blog by Johnson Law Office, P.C., which focuses its law practice on criminal defense, serving Central Indiana, with special emphasis on Hamilton County and Noblesville, where Johnson Law Office, P.C. is located. The title to this post was designed to grab your attention, so if you are reading this, it appears that the title did its job. While I could proceed to talk about how driving intoxicated can result in a bloody crash, that is not where I am going with this blog today. Instead, the focus today is on something completely different. Under Indiana’s Implied Consent law, the driver of the vehicle consents to being tested by a certified “chemical” test given by law enforcement personnel, provided there is probable cause to believe that the person was driving (operating) a vehicle while intoxicated. Once the police officer develops sufficient probable cause to believe the driver operated the vehicle while intoxicated, then the officer is to offer to the driver the certified chemical test, which usually is the certified breathalizer test (IC/IR) but sometimes is a blood draw.
This area is ripe for confusion: on the one hand, the driver might have already submitted to the first breathalyzer test right there at the side of the road. That test is called the portable breathalyzer test (PBT), the results of which are not admissible in a court of law but can be used by the police to develop probable cause to offer the certified chemical test. The PBT is often given at the very end of all of the sobriety tests. Right after the taking of the PBT, the officer proceeds fairly quickly to the next step–the reading of the Indiana Implied Consent warning, which is usually read from a card, which goes something like this: “I have probable cause to believe you have operated a vehicle while intoxicated. I must now offer you a certified chemical test. Will you take this test.” If the driver consents on the spot, he or she is taken to the police car in handcuffs and driven to the location of the chemical test, which location will vary depending on which type of chemical test is given (breathalyzer or blood) and other factors. If, on the other hand, the driver refuses to take the chemical test, or mulls it over too long either in good faith or intentionally delaying the process, then the officer reads again from the card, “I must now inform you that your refusal to take the chemical test shall result in your driver’s license being suspended for one year, or two years if you have had a prior conviction for operating a vehicle while intoxicated. Will you now take the chemical test?” At this point, the driver will choose to either take the test, or continue to think it over, or flat out refuse the test. But what is missing from this process is an additional warning, namely, that if the driver at this point still refuses to take the chemical test, then the officer is legally permitted to get a judge’s permission to take the driver’s blood sample anyway. That blood sample will then be sent to a laboratory to test for the presence and quantity of various substances in the driver’s body. The usual suspects are ethyl alcohol, THC (marijuana), and opiates.
Past DUI clients have said to me that they had already “done the breath test”, but that “breath test” was actually just the PBT. What they still had to consent to was the test that actually matters–the certified chemical test, which will either be a chemical test or a blood draw. So the driver sometimes says to me, “I already gave the cops my breath right there at the side of the road, why do they need another test?!” The answer is that the first test (PBT) just gives the police the basis (probable cause) to give the actual test that really matters. That concept can be hard to understand after consuming six beers (or was it just two?) however.
The bottom line of all of this is that when a driver refuses to take the chemical test, that does not stop the test from happening. The police in many Central Indiana counties are then completing a Probable Cause Affidavit in support of a search warrant for the driver’s blood. That affidavit is sent to the judge, who reviews it and if probable cause is found, grants the request for a warrant to draw blood in sufficient quantity as to be able to test it for various substances. What if the driver tries to resist the efforts of the nurse to draw the blood sample? It won’t end well for the driver; the police are legally permitted to use reasonable force to restrain the driver so as to enable the nurse to draw the blood sample from the driver. Resisting those efforts to draw the blood sample are itself a criminal act: battery, at either the misdemeanor or felony level, and in some counties, indirect contempt of court charges are brought. The legal theory there is that the driver is violating a direct court order (to draw the blood sample).
Some lessons learned from all of this: (1) don’t drive drunk by alcohol or by any other drug; (2) if you do drive drunk or impaired by drugs and are pulled over, it is a wise thing to submit to the chemical test, for your refusal to submit to the chemical test will not stop the police from getting a blood draw sample; (3) your refusal to consent to the blood draw sample will get your driver’s license suspended for at least one year, or two years if you had a prior conviction for operating a vehicle while intoxicated; (4) you will not be able to get a hardship driver’s license (now called Special Driving Privileges) if you refused the chemical test. You will have to wait until the “refusal” (BMV administrative) suspension terminates before you can apply (petition) the court for Special Driving Privileges.
If you are arrested for DUI (OVWI) in Central Indiana, including Hamilton County, you will need the legal representation of Johnson Law Office, P.C., an experienced criminal defense law office who will provide you with dedicated and competent criminal defense. You can reach them at 317.536.6268.