DUI/DWI/OWI Refusal Defense

Indiana Implied Consent

IMPLIED CONSENT: There is no unfettered ‘right to drive’ in Indiana.

There are obligations you assume as a condition of operating a vehicle in Indiana. (Indiana Code 9-30-6 )

Under Indiana Implied Consent Law any person driving on the state’s roads impliedly consents to submit to a chemical test if offered by an Indiana law enforcement officer.If an Indianapolis Police officer, as well as law enforcement throughout the State of Indiana, believes there is probable cause that a driver is committing or has commited an ‘operating while intoxicated’ type offense, that officer shall offer the driver a chemical test (one of three: breath, urine, or blood test) to determine that person’s blood and/or breath alcohol level.

That chemical test MUST be administered within three (3) hours after that officer had the aforementioned ‘probable cause’. If not done within that time frame the results may well be kept out of evidence, or suppressed, if your Indianapolis DUI/DWI/OWI attorney properly raises the issue. If a refusal is alleged by the officer, it is entirely separate from the criminal charges that may well be filed. The issue of a refusal is an administrative suspension by the Indiana Bureau of Motor Vehicles.
At your very first Court appearance, the Judge will very often order the suspension the driver’s license based on the allegations of a refusal by the police officer. The possible consequences of said refusal can be devastating if you need to drive for work, for school, for transporting the children.

If you have NO PRIOR CONVICTIONS for a DUI/DWI/OWI type offense that suspension if generally recommended to be for a period of one (1) year.    In fact your initial Notice from the BMV will generally so state. 

IF YOU HAVE A PRIOR CONVICTION FOR A  DWI/DUI/OWI offense:    That ”refusal’ suspension will be for a two (2) year period of time.    One of the more troubling aspects also on the allegations of a refusal, is that in Indiana your are not entitled to a ‘hardship’ license or a ‘probationery’ license during the period of a ‘refusal’ suspension.

With a ‘refusal’ ….while you are not entitled to a ‘hardship’ license …. if one petitions the Court for an ‘ignition interlock’ device in lieu of that suspension, you may be able to stay that suspension with such a device installed in your vehicle in Indiana. Only with the Court’s permission or ruling if contested by the State.   Such a ruling may help save your job.


REFUSAL TO TAKE FIELD SOBRIETY TESTS:    If one refuses to take the chemical test a suspension will ensue, though there is no comparable suspension issue when one refuses to take the Officer’s Field Sobriety Tests.   The Officer cannot advise you that your license ‘will’ or ‘shall’ be suspended if you refuse to take his offered FIELD SOBRIETY TESTS, as that is not the law in the State of Indiana.

It is certainly not always advisable to refuse to take the offered FSTs, for a variety of reasons.  But there is also no mandatory suspension of your Indiana Driver’s License if you do.   A capable,  tested  DUI/OWI Defense Attorney can explain these distinctions,  benefits and repercussions.

Contested Issues with Refusal

1. At the time of the arrest, Indiana Law has become rather clear over the years. To establish an adequate refusal under the implied consent statute in Indiana the arresting officer must convey the strong likelihood, that suspension of driving privileges would follow the driver’s refusal to submit to a chemical test/breathalyzer/blood test. An advisement that the license “may be suspended” is inadequate. As recently as 2008 the Indiana Court of Appeals has noted: “the legislature has required a warning (on refusal) phrased in absolute terms, finding that the statute mandated an advisement stating ‘that refusal will result in suspension’ of the person’s driving privileges.

2. If you tell the Officer you want to speak with your DWI refusal lawyer in Indianapolis before proceeding to decide whether or not to take the breathalyzer what should you expect next?

This is not a question the Officer can or should just simply ignore or dismiss. While there is not a ‘right to counsel’ at this stage of the proceeding, there are requirements for the officer to respond if you are asking for your attorney at this point. These are always fact sensitive, and your Indianapolis DUI/DWI/OWI attorney should know how to address this issue in Court.

3. For cases filed before January 1, 2015, THE LAW WAS:    Even if the Prosecution is able to prove a knowing refusal, there is a provision in the Indiana law that permits the Court/Judge at sentencing to terminate all or any part of the remaining refusal suspension if the Court finds that it is in the best interests of society to terminate that suspension.

       AS OF JANUARY 1, 2015:  A termination of refusal section of the Indiana Code has been repealed, as has Probationery Driving Privileges (I.C. 9-30-5-11 through 13)

           THIS MAY BE ONE OF THE MOST SIGNIFICANT CHANGES TO DWI/DUI/OWI licensing and suspension law that has occurred in years in Indiana.   The new law is most commonly referred to as “SPECIALIZED DRIVING PRIVILEGES” and it essentially eliminates a great deal of the mandatory suspensions we have dealt with for years in Indiana.     The ‘SDP’ (for short) Code Section is I.C. 9-30-16-1 et. seq.  This law allows the Judge involved in the case to have broad discretion regarding driving privileges and the duration of any suspension.  

             This ‘discretion’ can obviously cut both ways.    Some Judges can and will be much more lenient than others when considering if, and how long a suspension should be.     If granted an SDP, the driver will have a  minimum period of 180 days (I.C. 9-30-16-3(b) where there license is subject to the restrictions the Judge places on that individual.      The period of SDP can also last up to the maximum period of incarceration allowed for the offense the person is facing.

We will be dealing with this Specialized Driving Privileges topic at much greater length throughout portions of our Website herein.   Please feel free to peruse this site if you facts and case will be potentially dealing with the option of having an SDP granted in order that you may drive.

It is early in this statute’s life span, and it is this author’s opinion that modifications and additions will be made to this fledgling piece of legislation, but as of this writing, verified by Judges who have conducted seminars on this topic, IT CAN AND WILL APPLY TO FOLKS WHO HAVE BEEN SUSPENDED AS HABITUAL TRAFFIC VIOLATORS, AND EVEN THOSE WHO HAVE HAD LIFETIME SUSPENSIONS IMPOSED.    This statute finally allows in Indiana the driver who for years has had no complications with the law, but cannot drive because of a series of convictions (even misdemeanors) that lead to him being HTV many years ago.  This statute will allow Judges who want to help those people out….finally have the avenue to do just that.