Legal Blog

DUI Breath Tests Without Warrants

06 June 2016 | Alcohol,  Criminal Defense,  Legal Blog,  OWI,  

Attorney Sean Hessler

Written by
Sean Hessler

06 June 2016

Alcohol,  Criminal Defense,  Legal Blog,  OWI,  

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It’s important for every Indiana driver to understand their rights if they are pulled over under the suspicion of drunk driving. Of course, we want our officers to keep our roads safe and catch people who break the law, but not everyone pulled over is guilty of driving after having too much to drink or taking drugs. Sometimes it’s a mistake. If you are facing DUI charges, don’t delay contacting an Indianapolis DUI lawyer for legal representation.

In order for law and order to prevail, drivers need to know Indiana law and how they can handle being pulled over.

Implied Consent

Like many states, Indiana law states that drivers give implied consent to taking a breath, blood, or urine test if they operate a vehicle within the state. This means you are required to take a breath, blood, or urine test if you are properly asked to do so by a police officer.

A police officer cannot require a driver to take these tests at any time. Under Indiana Code Section 9030-6-2, a law officer with probable cause that the driver is operating a vehicle while intoxicated (OWI) or driving under the influence (DUI) of drugs or alcohol has the right to ask a person to take a breath or other chemical test. The officer can also ask the person to submit to more than one test, and the driver must take each test in order to comply with the implied consent law.

What is a Chemical Test?

Many people think of the portable breathalyzer when they think of testing for an OWI/DUI. However, you are not required by law to submit to a portable breathalyzer test. This is not a certified chemical test.

A certified chemical test is performed at a police station or a hospital by someone is certified to administer a breath, urine, or blood test. These are the types of tests you are required to take when asked.

If you are asked to take a breathalyzer test, the results can only act as probable cause to arrest you. The results cannot be used as evidence in a court of law.

Additionally, many officers will ask drivers they suspect to be intoxicated to perform a field sobriety test. You are not legally required to submit to this type of test and there are no consequences if you refuse.

Refusing to Submit

Believe it or not, refusing to submit to a chemical test when asked by an officer is its own crime. You have the right to refuse, but be aware that you can be charged with refusing to submit to a test and may have your license suspended. Additionally, your refusal can be submitted as evidence of your guilt in court. The prosecutor can argue that your unwillingness to take a test is proof that you were intoxicated at the time.

When is a Chemical Test Not Evidence of a Crime?

There are many circumstances in which a breath, urine, or blood test cannot be used to prove someone committed an OWI/DUI.

The police officer must have probable cause that the person is committing the crime of driving while intoxicated. This may be gathered from a person’s erratic driving, from someone smelling of alcohol or slurring their words. An officer may gain probable cause because of open alcohol containers or other drugs he can see in the car. If an officer does not have probable cause of an OWI/DUI, any test he requires you to take may be thrown out as evidence.

A chemical test must be taken within 3 hours of the officer having probable cause. If are arrested for driving while intoxicated, but you are not asked to submit to any test until more than 3 hours later, than the test results cannot be used against you.

Contact an Indianapolis DUI Attorney

If you were charged with an OWI or DUI, let an experienced DUI attorney like Sean Hessler help you. Sean will carefully review your case to ensure that the officer had probable cause to arrest you and require a chemical test. He will also investigate when, how, and by whom the tests were administered. If a test was improperly administered, Sean will move to have the evidence suppressed so it can’t be used against you. Contact Hessler Law today at (317) 886-8800.