One of my major efforts in the defending of dui cases in Indiana is the proper way to fight license suspensions due to alleged breath test refusals. In the State of Indiana as in most states, as drunk driving enforcement increased, respective state motor vehicle departments adapted policies to tie issuance of drivers licenses to submission of breath testing for those suspected of dui.

This concept of required breath test submission for drunk driving is called “Implied Consent” within Indiana. In its most basic of terms, Implied Consent means that as a pre condition of the privilege of being granted a drivers license within Indiana and elsewhere, that the driver agrees to submit to breath testing if requested by law enforcement or face mandatory suspension of one’s license.

In this state an individual who refuses to submit to a breath test where probable cause has been found to believe that a drunk driving offense has been committed faces a mandatory one (1) year license suspension. This suspension is on top of any court ordered license suspension for a dui conviction. Where one has a prior dui conviction and has been found to have refused a breath test request a mandatory additional license suspension of two (2) years will be imposed in addition to the court ordered license suspension.

In Indiana, once probable cause has been determined in court that one may be charged with a drunk driving offense, the individual’s driver’s license will be suspended even before a finding of guilt. Although the court is finding the probable cause for the dui charge, during the pre trial proceedings it is the Indiana Bureau of Motor Vehicles (BMV) that is suspending the license.

As this pre trial suspension is based upon the bureau’s administrative procedure and not a criminal conviction, the standard of proof for a judge to utilize is a lower ”Preponderance of Evidence” standard to initially suspend the license and not the “Beyond a Reasonable Doubt” threshold to uphold a criminal conviction.

Consequently, one can actually have criminal charges for dui dismissed yet still face the mandatory administrative refusal license suspension of the Indiana BMV.

With a refusal suspension there is no opportunity to receive a probationary license for any seemingly legitimate purpose whether it be for work, school or child care unless an ignition interlock device is affixed to a vehicle. Even then, many Indiana courts are especially reluctant to grant the ability for specialized driving privileges (work license) where one is accused of refusing a breath test or blood draw. As a result, any and all steps must be utilized to fight or address these types of suspensions as aggressively as possible.

The mechanism for enforcement of these suspensions is often complicated and can vary depending upon what county in Indiana we are defending your case in. However, in all cases the first line of defense in fighting a potential refusal suspension is always in pro active investigation into all aspects related to the initial arrest. Early intervention is especially important within the context of fighting a refusal allegation due to the issue of credit time for pre trial suspension of the license discussed elsewhere.

We are attorneys who know what to look for in holding law enforcement to account. As to proper Implied Consent procedure we know how to challenge any and all allegations related to initial probable cause so as to potentially invalidate not only an allegation of refusal but the charges as a whole.

When discussing dui arrests, many ask me whether someone should refuse a breath test for dui. For these and other questions I would be pleased to speak with you in simplifying this process and answering your questions as we sort through these issues together.