Judges split 3 ways on motorist’s ambiguous response to DUI test

Dave Stafford for www.theindianalawyer.com

An apparently intoxicated motorist’s ambiguous reply to an officer’s request to perform a chemical test has resulted in a new, strict standard affirmed by only one of three judges who heard the driver’s appeal.

“We affirm the trial court’s order, holding, as a matter of first impression, that any answer short of an unqualified, unequivocal assent to a properly offered certified chemical test constitutes a refusal” resulting in a driver’s license suspension, Judge Rudolph R. Pyle III wrote in Kristy Burnell v. State of Indiana,  29A02-1412-CR-849. Judge Terry Crone concurred with the result affirming Burnell’s license suspension, but would not go so far as Pyle’s holding. Judge Elaine Brown dissented and would reinstate Burnell’s license, finding she, in fact, didn’t refuse the test.

Burnell’s license was suspended after she was pulled over in Carmel and officers smelled alcohol. After she failed field sobriety tests, an officer asked her whether she would submit to a chemical test. She never assented to the test, and the officer informed her that refusing the test would result in suspension of her license for two years because she had a prior recent drunken driving conviction.

After not getting a clear answer, the officer said to Burnell, “Okay, so I need an answer. Are you willing to take the test or not?” She replied, “Well, I mean if I take it, I’m going to jail,” then said, “Well, if I refuse, I’m going to jail either way. So yeah, I guess I gotta take it,” according to the record.

But then Burnell began to walk away, prompting officers to grab and cuff her, deeming her behavior a refusal to submit to the test. She was arrested at that point.

“Based upon this evidence, the trial court found that Burnell’s answers and conduct did not equate to an ‘answer indicative of one meaning’ and concluded that she had refused the chemical test,” Pyle wrote, affirming the court’s order affirming her license suspension.

“Just as an officer’s implied consent advisement must unequivocally inform a motorist that his or her refusal will result in suspension of their driving privileges, a motorist’s response must also be unequivocal to the proper offer of a chemical test. The statute as written leaves a motorist no room for negotiation or debate,” Pyle wrote. “Allowing any equivocal response from a motorist when confronted with a properly offered chemical test does not comport with the mandatory language of the statute or its purpose. Accordingly, we hold that anything short of an unqualified, unequivocal assent to a properly offered chemical test constitutes a refusal.”

Judge Terry Crone concurred with affirming the trial court but wrote separately to disagree that anything short of an unqualified, unequivocal assent equates to a refusal. “Each case should be judged on its specific facts, and in my view the facts most favorable to the trial court’s determination in this case are sufficient to affirm it,” Crone wrote.

Judge Elaine Brown dissented and would reverse the trial court and reinstate Burnell’s license. She wrote that Burnell was severely intoxicated when she was asked to submit to the test. “(A)n intoxicated Burnell weighed her choices (and in doing so admitted that she was intoxicated) and, resigned to her fate, told him, ‘I guess I gotta take it,’” Brown wrote. “I would find that Burnell’s statement was not substantially short of an unqualified, unequivocal assent … and that accordingly the evidence presented did not establish as a matter of law that she refused to submit to the chemical test under Ind. Code § 9-30-6-9(b).”