Bowlin v. State, 3--574A80
| Decision Date | 08 July 1975 |
| Docket Number | No. 3--574A80,3--574A80 |
| Citation | 330 N.E.2d 353,164 Ind.App. 693 |
| Parties | Kenneth L. BOWLIN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
M. Robert Benson, Arthur G. Surguine, Jr., Torborg, Miller, Moss, Harris & Sowers, Fort Wayne, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., G. Philip Duckwall, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
This is an appeal from the trial court's determination in a proceeding to suspend defendant Bowlin's driver's license for his refusal to take a test for intoxication pursuant to the Indiana implied consent statute. IC 1971, 9--4--4.5.
Bowlin asserts three errors: (a) That the test was not offered prior to his arrest; (b) that the arresting officer lacked probable cause; and (c) that the officer did not deliver Bowlin's driver's license to the judge as required by the statute. We find no reversible error.
The implied consent statute provides in part:
'Any law enforcement officer authorized to enforce the laws of this state regulating the use and operation of vehicles on public highways who has probable cause to believe that any person has committed the offense of driving or being in actual physical control of a vehicle while under the influence, in his presence or view, . . . shall not place such person under arrest for such offense until he has first offered to such person the opportunity to submit to a chemical test for intoxication . . .' IC 1971, 9--4--4.5--3.
This same section of the statute, under subparagraph (d), further provides that if a person refuses to submit to such chemical test, he may be arrested and his current driving license shall be delivered to the judge of the court in which such charge is filed, along with a certification of refusal to submit to the chemical test.
IC 1971, 9--4--4.5--4 then provides that when a certification of refusal to submit to a chemical test is submitted to the court, the court shall hold a separate hearing to determine (a) whether the law enforcement officer had probable cause to believe that the accused had committed the offense; (b) whether the law enforcement officer offered the opportunity to the accused to submit to a chemical test before placing the accused under arrest; and (c) whether the accused in fact refused to submit to a chemical test.
IC 1971, 9--4--4.5--2(b) defines probable cause for purposes of the implied consent statute as meaning the same as the term 'reasonable grounds', i.e., facts and circumstances known to the officer which would warrant a prudent officer to believe that the offense in question had been committed. Cf., Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133.
There was a conflict in the evidence as to when Bowlin was first offered the opportunity for a chemical test. However, the arresting officer testified that in his initial contact with Bowlin, and before arresting him, he offered Bowlin the test and advised him that if he refused to submit to a test, his driver's license might be suspended for a year. He stated that Bowlin responded, 'I don't have any license to lose, so why should I take the test?'.
This was sufficient evidence to enable the court to determine that Bowlin had been offered the test...
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...which find the evidence insufficient to support a conviction for operating while intoxicated from those cases like Bowlin v. State (1975), 164 Ind.App. 693, 330 N.E.2d 353; Rose v. State (1976), 168 Ind.App. 674, 345 N.E.2d 257; Garland v. State (1983), Ind.App., 452 N.E.2d 1021; and Traxle......
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Harts v. State
...a prudent officer to believe that the offense in question [driving under the influence] had been committed." Bowlin v. State (1975), 164 Ind.App. 693, at 694, 330 N.E.2d 353, at 355. Further, IC 9-4-4.5-4(a)(1) includes a list of factors which may be considered when determining whether prob......
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Dunham v. State
...and conclusions reached by the majority but I am able to concur in them and in the result of this case only because in Bowlin v. State (3d Dist.1975), 330 N.E.2d 353 the merits of an appeal were reached under seemingly identical circumstances. Notwithstanding this fact, I harbor doubt as to......
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Mordacq v. State, 09A05-9107-CR-235
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