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Portable breath tests do NOT count


Many people believe that they have not refused a breath test in their operating while intoxicated cases because they took a portable breath test at scene of the traffic stop. However, the portable breath tests results are only admissible to establish probable cause for an arrest. Portable breath test results are not admissible at trial because these tests have not been approved by the Indiana Department of Toxicology as being scientifically reliable. Therefore, even if you take the portable field test, you still are required to take the certified breath test at the police station or jail or a blood test if requested by the police to do so.

In Indiana, a person who operates a vehicle impliedly consents to a certified chemical test as a condition of operating a vehicle. If you refuse the certified breath or blood 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 State 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 license 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 certified 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 can be more difficult to challenge at trial than a breath test. Further, you still lose your driving privileges for the breath test refusal even though a blood test was performed pursuant to the search warrant. A breath test refusal results in a potentially weaker case and a longer driver’s license suspension. If you pass the certified test, an arrest is unlikely to occur. If you fail, you should hire an experienced OWI lawyer such as Steven Knecht to review your case to determine if the certified breath test result or refusal can be successfully challenged in court.

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