Challenging Test Refusals

DUI Test Refusal Attorney

Under Indiana’s Implied Consent Law, if a driver refuses to submit to a properly offered chemical test, their driver’s license will be suspended for a minimum of one (1) year.  I.C. 9-30-16-6(b) permits the court to terminate all or part of a refusal suspension if the court finds that it is “in the best interests of society.”

A court and the BMV must terminate all or any part of the remaining suspension of a person’s license for refusal to submit to a chemical test if: (1) charges are dismissed; (2) the person is found not guilty or (3) the person’s conviction is vacated or reversed on appeal.

If a person refuses to submit to a chemical test, the officer must inform the person that their license will be suspended.  If the officer fails to tell the person that their refusal to submit to a chemical test will result in a license suspension, the suspension can not stand.

A refusal suspension may also be challenged by judicial review. If your license has been suspended because you refused to submit to a chemical test, you are entitled to a prompt judicial hearing.  If the court determines that the officer did not have probable cause to believe that you were operating while intoxicated or that you did not refuse to submit to a chemical test, then the court will order the BMV to reinstate your driving privileges immediately.

What about a driver who initially refused, reconsidered, and then requested but was not permitted to take the breath test?  Did the driver actually say “no,” or was it the officer’s opinion that the driver was refusing?  Did the driver submit to other tests? If the driver took the portable breath test at the scene, did the officer tell the driver the results of that test?  Were there any communication or language barriers between the driver and the officer? Did the driver attempt to blow but was unable to produce enough air to register a score?  Was the officer misleading?  Did the officer have the actual ability to administer the test? Could the test be performed at the time it was offered?

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