Everyone Deserves a Second Chance (Especially When the Law Requires It)

Breath Tests and Driving Privileges 

When a person is pulled over and the police officer has probable cause to believe she is driving while intoxicated, the Indiana Code requires the person to either submit to a "chemical test" (breath test) or risk losing her driver's license.  When the BMV learns that a person refused to submit to a test, it must suspend that person's driving privileges for one year.  In a recent case, the Indiana Supreme Court was asked to interpret what it means to refuse a breath test.  Essentially, the Court held that a test cannot be refused before it is properly offered.

Refusing a Breath Test

There are obvious examples of refusal and some not-so-obvious examples of refusal.  As the Court pointed out, if a person tells an officer they won't take the test, they have refused it.  Similarly, if the person engages in childish tricks (puffing out cheeks without blowing, covering the machine with their upper lip, or sucking instead of blowing), an officer may safely conclude that the person is refusing the test.  It is not so clear, however, when a person blows into the machine several times but provides an "insufficient sample."  At least one police officer believed that this allowed him to consider the test refused, but the Supreme Court thought differently.

Second Chances

The law instructs police officers to give a breath test in a certain way.  In cases where a person does not give a sufficient sample but does not otherwise appear to be uncooperative, the law instructs the officer to give the person a second chance.  If the officer does not follow the instructions, the test has not been properly offered.  In other words, the officer cannot unilaterally conclude the person is refusing the test. He must offer a second chance.  If he does not, the BMV cannot consider the test refused and cannot suspend the person's drivers license.     


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