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Gregg J. Stark Indianapolis DUI Attorney Gregg J. Stark Indianapolis DUI Attorney

Should I Decline An Officer’s Request For a Breath/Blood Sample?

One of the most misunderstood aspects of criminal procedural law in Indiana revolves around questions related to breath and/or blood draw samples provided during the course of a criminal investigation. Through the years people coming to me have been understandably confused about the issue due to the consistent and recurring mixed messages provided to them by both friends and lawyers alike.

Most everyone who has posed such questions to me invariably have a buddy or even a misguided lawyer willing to cavalierly throw out the notion that to submit to providing such a sample willingly to law enforcement during the course of an impaired driving arrest is to foolishly incriminate oneself and invite criminal prosecution.

Such advice makes sense and I believe to be one of the main reasons that the general public’s legitimate confusion on this issue of law persists to the present day. We as a nation are conditioned within our schools and media to believe that within our country we as individuals have the right not to incriminate ourselves. That belief, in fact, is true and is considered a protected right of the United States constitution.

No wonder that even the most intelligent individuals, much less lawyers not specialized within the field of drunk driving defense, are baffled as to the adverse legal ramifications that can result within Indiana, and all other states, should one decide to act upon this purported knowledge. It would therefore appear to be make the most common sense not to assist a police officer during the course of a targeted investigation by not complying with an investigating officer’s commands to provide physical legal evidence from one’s mouth or blood that could invite future criminal arrest and prosecution.

Before we delve into the final answer as to my opinion as to whether an individual questioned during the course of a traffic stop should provide the above referenced samples if commanded to do so, an analysis of what our rights as citizens really are need to be more thoroughly examined.

As Americans, all citizens of this country enjoy the inalienable right not to incriminate oneself before those responsible for the arrest and prosecution of wrongful conduct. This right has been considered so valuable that specific evidentiary prohibitions exist within all states that even bar the use of potentially incriminating testimony provided by husband or wife (spousal immunity), or to clergy or medical providers if statements have been provided for therapeutic purposes.

Such legal exceptions within our laws exist in large measure due to the legal recognition that as citizens we should not fear to have our privacy and ability to confide in recognized individuals free from governmental interference and intrusion. As all of us have been taught within our schools that these rights have undoubtedly been influenced by the framers of our constitution’s zeal to insulate our country’s citizens from the tyranny that runs prevalent when unchecked power of government in any form (king, queen, dictator) is permitted to suppress the rights of citizens to be free in their respective pursuit of individual liberties.

While all of the above wonderful platitudes sound all well and good, here is the reality that must be explained to our grown citizens incorrectly influenced by our nation’s school systems; there is a legal distinction within the United States between a “right” and a “privilege.” Failure to understand this distinction within a discussion of an impaired driving investigation within Indiana and elsewhere can lead otherwise well informed and reasonable people to make ill informed decisions that even the best attorneys cannot help.

When initially questioned and investigated within the course of an impaired driving investigation, a confluence of two different legal matters come into play, “legal rights” as well as, “legal privileges.”

Unlike other forms of criminal investigation where it is always imperative to seek the assistance of a defense attorney prior to conferring with law enforcement, an impaired driving prosecution also carries the prospect of legal sanctions that may be imposed against one’s ability to operate a motor vehicle.  In today’s world, (perhaps unanticipated within the society that existed during the framer’s of the constitution’s time) the restriction in any form of one’s ability to operate a motor vehicle is most usually tantamount to a criminal sanction, if not more so. To restrict our individual liberty to drive as we all know can not only impair our ability to earn a livelihood, but can also unduly punish those we seek to provide for, be such dependents our children or parents.

Nonetheless, this recognition of hardship toward those affected by a drivers license suspension has not filtered down to a constitutional right; rather the ability to operate a motor vehicle within Indiana and all states is considered a “privilege.” As a result, each respective state as a condition of granting the privilege of operating a motor vehicle governs the rules and regulations of the respective state’s administrative (governmental agency) rules and requirements, not the United States constitution.

This distinction is critical, for it spells out why a failure to comply with an investigating police officer’s command to provide physical bodily evidence can, in fact, result in the legal restriction of one’s ability to operate a motor vehicle, irrespective of whether one has been found guilty of a crime, in this case the crime of impaired driving.

The ability to remain silent, or otherwise deprive the government the ability to deprive one of their liberty through the securing of a criminal conviction falls under the protections of the constitution. Therefore, the right to remain silent and/or initiate defenses prohibiting others from testifying against one’s interests attaches at all times should the focus of the state’s efforts be on securing a criminal conviction and all of the punitive ramifications that result from such a conviction.

Since the ability to operate a motor vehicle is not a constitutional right, but rather a privilege granted by the issuance of a driver’s license pursuant to the rules of the issuing state’s licensing authority, failure to provide such a bodily sample in the form of breath and/or blood will now prompt the suspension of a driver’s license within all states pursuant to mandated implied consent laws discussed elsewhere.

The pointed analysis that must therefore be determined for many subject to the decision as to whether to provide such bodily samples is the following; am I more fearful of criminal punishment that may result should I be convicted for an impaired driving offense, or am I more concerned with the reality that should I fail to provide such a bodily sample I will potentially lose my license for a duration of time at least four times the amount had I complied with a valid law enforcement request.

In years past defense lawyers were better able to draw such a distinction between those more concerned with criminal conviction over those first or second time offenders more concerned with an excess license suspension that would attach to a decision not to provide a bodily sample for alcohol or drugs. However, within Indiana, the procedural process has changed within the last few years such that the distinction has not been as easily differentiated as in the past.

Generally, prior to five years ago, many counties within the state of Indiana would not follow up with a judicial request for a search warrant to take someone’s blood should such an individual fail to comply with a bodily sample request. In such circumstances the individual in years past would be willing to suffer the mandatory license suspension that would attach to a refusal suspension in order to make the tactical legal decision to deprive a state prosecutor the ability to utilize evidence that could otherwise contribute to a criminal conviction that could otherwise lead to long term incarceration.

Therefore, in a cost benefit analysis, many individuals most often subject to the potential criminal punishment of a felony and knowledgeable of the legal system would make the reasoned determination that rolling the dice at trial would better serve their legal interest. In so doing, a determination would be made that failing to willingly provide a valued piece of evidence toward a state prosecution outweighed a lesser concern stemming from the mandatory license suspension incurred by failing to provide a bodily alcohol sample.

However, with the advent of policies now adapted almost universally throughout all counties of the state of Indiana times have changed. Unlike past years where depending upon the county questioned one subject to an impaired driving investigation could gamble that a targeted search warrant for a bodily sample would not be procured in the event of  a failure to comply; such is usually no longer the case.

The implications of this reality is that failure to comply with a command to provide a bodily sample in the form of a breath or blood sample is usually in this attorney’s opinion a “lose lose” proposition. It is what I term, “lose lose” due to the fact that should a search warrant for a blood sample now be initiated and obtained by a sworn police officer, the subject of the warrant will suffer both the evidentiary results of a compelled (and in many instances more reliable) blood draw, while also suffering from a mandatory license suspension for a potentially far longer duration of time.

With this above referenced analysis in mind, those with prior convictions for impaired driving may still consider a decision not to comply with a lawful command for a bodily sample where a drivers license suspension is a secondary priority. However, the notion that such a decision should be taken lightly is a matter that needs to be examined far more closely than customarily advised.



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