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Our Advice: Take the Breath Test


If during a traffic stop in Indiana, a police officer asks you to take a breath test to determine if you are intoxicated, should you agree to take the breath test?

We believe that you should take the breath test. In Indiana, a person who operates a vehicle impliedly consents to a chemical test as a condition of operating a vehicle. If you refuse the breath test, the refusal is considered prima facie evidence of intoxication requiring the officer to arrest you for driving while intoxicated. The refusal is admissible into evidence at trial and will be argued by the Prosecutor as an admission by you of intoxication. Further, the refusal will result in the suspension of your driving privileges for one year on a first offense and two years if you have a prior conviction for driving while intoxicated unless the suspension is terminated by a court order. This suspension for a refusal is in addition to any driving suspension that the judge will give you if you are convicted of driving while intoxicated. If you are found not guilty after a trial, the court cannot set aside the suspension of your driving privileges for the refusal of the breath test.

In addition, the police can now under Indiana law obtain a search warrant to obtain a blood sample after a request to submit to a breath test has been refused. So instead of a breath test, the State will have a blood test to determine if you are intoxicated. A blood test is more accurate and more difficult to challenge at trial than a breath test. Further, you still lose your driving privileges for the breath test refusal even though the blood test was performed pursuant to the search warrant.

A breath test refusal results in a weaker case and a longer driver’s license suspension. In our opinion, you are better off agreeing to take the breath test. If you pass, an arrest is unlikely to occur. If you fail, you should hire experienced OWI lawyers such as Vonderheide & Knecht to review your case to determine if the breath test result can be successfully challenged in court.

Filed to Ask a Lawyer, Operating While Intoxicated

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