If you only remember one point about refusing a breathalyzer in Indiana, remember this: A first refusal typically results in a one-year administrative suspension of driving privileges; subsequent refusals carry longer suspensions, with court and BMV procedures for review. Refusal can be a separate infraction or affect criminal sentencing and ignition-interlock conditions. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally need a warrant. Procedure, examples, and the opinions below hang off Ind. Code §§ 9-30-6-1, 9-30-6-7. Indiana drivers consent to chemical tests for intoxication when an officer has probable cause for OWI. Officers must offer the test and advise of the license consequences of refusal under chapter 9-30-6.
Criminal consequences of refusal
Refusal can be a separate infraction or affect criminal sentencing and ignition-interlock conditions. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally need a warrant.
Under Birchfield v. North Dakota, the Fourth Amendment allows criminal penalties for refusing a warrantless breath test incident to a lawful DUI arrest, but generally requires a warrant (or a recognized exception) before the State may impose criminal penalties for refusing a blood draw. Missouri v. McNeely rejected a per-se exigency based solely on natural dissipation of alcohol in the blood. Indiana statutes and case law implement those federal baselines with local detail.
Walking through Indiana facts
Use this walkthrough to see which Indiana authority does the work at each step.
A driver is arrested for DUI in Indiana and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under Ind. Code §§ 9-30-6-1, 9-30-6-7: A first refusal typically results in a one-year administrative suspension of driving privileges; subsequent refusals carry longer suspensions, with court and BMV procedures for review.
- Separate that track from the criminal case: Refusal can be a separate infraction or affect criminal sentencing and ignition-interlock conditions. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally need a warrant.
- Ask whether the refusal can be argued to the jury: Refusal is admissible in the OWI prosecution.
- If the request is for blood rather than breath, apply the warrant rule: Breath tests are common for alcohol; blood draws are frequently obtained by warrant when breath is refused or drugs are suspected.
In Indiana the refusal question is answered first by Ind. Code §§ 9-30-6-1, 9-30-6-7, then by the administrative deadline and the criminal case.
Can refusal be used as evidence?
Refusal is admissible in the OWI prosecution.
Prosecutors often argue consciousness of guilt; defense counsel emphasize confusion, inadequate advisories, or medical inability to provide a sample. The precise jury instruction language is state-specific — search Indiana opinions for “refusal” and “implied consent.”
Breath tests versus blood tests
Breath tests are common for alcohol; blood draws are frequently obtained by warrant when breath is refused or drugs are suspected.
Practical tip: a driver who refuses breath may still face a warrant-backed blood draw. Refusal does not create a permanent shield against chemical evidence; it mainly adds administrative (and sometimes criminal) consequences on top of the underlying DUI case.
Practical tips
- Ask whether the stop and arrest were lawful — implied consent usually requires a lawful DUI arrest first.
- Diary the administrative hearing deadline immediately.
- Do not confuse portable roadside breath screens with the evidentiary breathalyzer at the station; statutes often treat them differently.
- Research Indiana opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in Indiana
Lanny D. ABNEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
…se Abney's blood was drawn after the police had invoked the implied consent statute and Ab-ney had refused to consent to the blood draw. We affirm. The relevant facts follow. On July 9, 1999, shortly before 3:00 a.m., Jon Heffer-nan was riding a bicycle on Rockville Road and was struck by a car and killed. Marion County Sheriff deputies responded to the scene, they found Heffer…
On implied consent / breathalyzer refusal, Lanny D. ABNEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff speaks to the Indiana dispute in this passage: "Abney's blood was drawn after the police had invoked the implied consent statute and Ab-ney had refused to consent to the blood draw. We affirm. The relevant facts follow. On July 9, 1999, shortly before 3:00 a.m." The surrounding opinion shows how the court applied that language to the record.
Toby D. TODD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below)
…truck for support. Officer Heyse next informed Todd of the Implied Consent Statute, advising Todd that his license to drive may be suspended if he refused to take the test. Todd refused to submit to the test, and was then placed under arrest. I. Amendment of the Information Count I of the information against Todd initially charged him with refusing the implied consent test. Tr…
Toby D. TODD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below) is worth reading on Indiana implied consent / breathalyzer refusal because the court put the point in its own words: "Officer Heyse next informed Todd of the Implied Consent Statute, advising Todd that his license to drive may be suspended if he refused to take the test. Todd refused to submit to the test, and was then placed under arrest. I." Use that passage as the starting point, then read the facts that precede it.
Maria Dawn BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
…o suppress. In an issue of first impression under Indiana’s implied consent law, 2 we address the question of whether the implied consent law precludes the use of a search warrant to obtain a blood sample after a request to submit to a chemical test has been refused. We conclude that it does not. We affirm. FACTS AND PROCEDURAL HISTORY On October 28, 1999, Lawrence County Sheri…
Maria Dawn BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff is worth reading on Indiana implied consent / breathalyzer refusal because the court put the point in its own words: "In an issue of first impression under Indiana’s implied consent law, 2 we address the question of whether the implied consent law precludes the use of a search warrant to obtain a blood sample after a request to submit to a chemical test has been refused." Use that passage as the starting point, then read the facts that precede it.
STATE of Indiana, Plaintiff-Appellant, v. Keith L. JOHNSON, Defendant-Appellee — Robertson, J., dissenting
…ed by a law enforcement officer in order to comply with the implied consent provisions of this chapter. I.C. 9-11-4-2 (emphasis supplied). There are no statutory provisions which authorize the use of a preliminary breath test when the officer possesses some belief less than probable cause that a person has committed an alcohol-related driving offense. Therefore, an officer must…
On implied consent / breathalyzer refusal, STATE of Indiana, Plaintiff-Appellant, v. Keith L. JOHNSON, Defendant-Appellee — Robertson, J., dissenting speaks to the Indiana dispute in this passage: "I.C. 9-11-4-2 (emphasis supplied). There are no statutory provisions which authorize the use of a preliminary breath test when the officer possesses some belief less than probable cause that a person has committed an alcohol-related driving offense." The surrounding opinion shows how the court applied that language to the record.
STATE of Indiana, Appellant/Cross-Appellee-Plaintiff, v. David BISARD, Appellee/Cross-Appellant-Defendant
…of the Lawrence Police Department advised him of Indiana’s implied consent law, and Bisard consented to a blood draw. Appellant’s Amended App. pp. 15, 50, 319— 20. Stephens asked medical assistant Michelle Maga to perform the blood draw and handed her two blood collection tubes. Tr. p. 88. Maga noticed that the tubes had expired, discovered that MOHC’s available tubes had also…
STATE of Indiana, Appellant/Cross-Appellee-Plaintiff, v. David BISARD, Appellee/Cross-Appellant-Defendant is worth reading on Indiana implied consent / breathalyzer refusal because the court put the point in its own words: "Lawrence Police Department advised him of Indiana’s implied consent law, and Bisard consented to a blood draw. Appellant’s Amended App. pp. 15, 50, 319— 20. Stephens asked medical assistant Michelle Maga to perform the blood draw and handed her two blood collection tubes. Tr. p." Use that passage as the starting point, then read the facts that precede it.
STATE of Indiana, Appellant (Plaintiff Below), v. Charles R. HUBER, Appellee (Defendant Below)
…submit to a *141 breathalizer test. The trooper recited the Implied Consent Law from memory: "I said 'sir I have probable cause to believe you have-that you have operated a motor vehicle while intoxicated. Before I place you under arrest I must first offer you the opportunity to take a breath test to be given by a chemical breath test operator. If you refuse to submit to this t…
On implied consent / breathalyzer refusal, STATE of Indiana, Appellant (Plaintiff Below), v. Charles R. HUBER, Appellee (Defendant Below) speaks to the Indiana dispute in this passage: "The trooper recited the Implied Consent Law from memory: 'I said 'sir I have probable cause to believe you have-that you have operated a motor vehicle while intoxicated." The surrounding opinion shows how the court applied that language to the record.
Thomas Earl PARKER, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff)
…nformed Parker of the consequences of his refusal under the Implied Consent Law. Again Parker refused to submit to a chemical sobriety test. Later, at the lock-up, Parker changed his mind and requested to take the alcohol breath test. 2 Officer Tompkins refused to give Parker the test. ISSUES The issues presented by Parker are restated, as: 1. Was the evidence sufficient to sus…
On implied consent / breathalyzer refusal, Thomas Earl PARKER, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff) speaks to the Indiana dispute in this passage: "Parker of the consequences of his refusal under the Implied Consent Law. Again Parker refused to submit to a chemical sobriety test. Later, at the lock-up, Parker changed his mind and requested to take the alcohol breath test. 2 Officer Tompkins refused to give Parker the test." The surrounding opinion shows how the court applied that language to the record.
Key takeaways
- Primary authority: Ind. Code §§ 9-30-6-1, 9-30-6-7.
- Administrative hit: A first refusal typically results in a one-year administrative suspension of driving privileges; subsequent refusals carry longer suspensions, with court and BMV procedures for review.
- Criminal exposure: Refusal can be a separate infraction or affect criminal sentencing and ignition-interlock conditions.
- Evidence: Refusal is admissible in the OWI prosecution.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Implied consent in Indiana
Indiana drivers consent to chemical tests for intoxication when an officer has probable cause for OWI. Officers must offer the test and advise of the license consequences of refusal under chapter 9-30-6.
Implied consent is not the same as a Miranda warning. Officers typically must advise of the consequences of refusal before requesting a chemical test. Failure to give a required advisory can affect whether the administrative suspension sticks — a frequent issue in Indiana appellate opinions.
License suspension and administrative hearings
A first refusal typically results in a one-year administrative suspension of driving privileges; subsequent refusals carry longer suspensions, with court and BMV procedures for review.
The DMV / administrative track often runs separately from the criminal DUI case. Missing the short window to request an administrative hearing can lock in a suspension even if the criminal charge is later reduced or dismissed. Always calendar the administrative deadline the same day as the arrest.
Frequently asked questions
What happens if I refuse a breathalyzer in Indiana?
A first refusal typically results in a one-year administrative suspension of driving privileges; subsequent refusals carry longer suspensions, with court and BMV procedures for review. Refusal can be a separate infraction or affect criminal sentencing and ignition-interlock conditions.
Is refusal a separate crime in Indiana?
Refusal can be a separate infraction or affect criminal sentencing and ignition-interlock conditions. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally need a warrant.
Will the prosecutor tell the jury I refused?
Refusal is admissible in the OWI prosecution.
Do I need a warrant for a blood draw?
Breath tests are common for alcohol; blood draws are frequently obtained by warrant when breath is refused or drugs are suspected. See also Birchfield and McNeely linked above.