Burnell v. State

• Decision Date: 24 September 2015
• Docket Number: No. 29A02–1412–CR–849.,29A02–1412–CR–849.
• Citation: Burnell v. State, 44 N.E.3d 771 (Ind. App. 2015)
• Parties: Kristy BURNELL, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

44 N.E.3d 771

Kristy BURNELL, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 29A02–1412–CR–849.

Court of Appeals of Indiana.

Sept. 24, 2015.

Russell B. Cate, Casandra J. Nelson, Campbell Kyle Proffitt, LLP, Carmel, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Opinion

PYLE, Judge.

[1] Kristy Burnell (“Burnell”) appeals the trial court's determination that she refused a certified chemical test during a traffic stop, which resulted in the suspension of her driving privileges pursuant to Indiana's Implied Consent Law. On appeal, she argues that she consented to take the test and that her conduct was not tantamount to a refusal. 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.

[2] Affirmed.

Issue

Whether the trial court erred in determining that Burnell refused a certified chemical test under Indiana's Implied Consent Law.

Facts

[3] On July 3, 2014, Officer Dave Kinyon (“Officer Kinyon”), with the Carmel Police Department, observed Burnell driving her car on Carmel Drive in Hamilton County. Burnell ran a stop sign and made an improper turn, and Officer Kinyon, along with two other officers, conducted a traffic stop.

[4] Officer Kinyon noticed an odor of an alcoholic beverage coming from Burnell. He also noticed that her speech was slurred, her eyes were bloodshot, and her balance was unsteady. Officer Kinyon performed a number of field sobriety tests on Burnell. The field sobriety tests were recorded by Officer Kinyon's in-car video system. Burnell failed every test. After the field sobriety tests, the following colloquy took place between Burnell and Officer Kinyon:

Officer Kinyon: I do have probable cause to believe that you have operated a motor vehicle while intoxicated and I must now offer you the opportunity to take a chemical test, and inform you that your refusal to take a chemical test will result in a suspension of your driving privileges for one year. If you have at least one previous conviction for operating while intoxicated, your refusal to submit to a chemical test will result in a suspension of your driving privileges for two years. Will you now take that chemical test?

Burnell: I don't know. I—I—I would really prefer it if you could call my uncle.

Officer Kinyon: This is something—you're an adult—this is something that you need to handle on your own. Okay. I need a yes or no.

Burnell: Yeah, yeah but—I'm and [sic] adult, but, I—I

Officer Kinyon: Okay Kristy, I'm going to explain something to you, okay. I'm a relatively patient person, but this is one of [sic] circumstances where I don't have a lot of patience.

Burnell: I can't get [sic] have another one ...

Officer Kinyon: So I need—I need you to get—I need to get—a certain ...

Burnell: I got in trouble like two years ago.

Officer Kinyon: I need to—So you've [ ] had an OWI before?

Burnell: Two years ago. Yeah.

Officer Kinyon: Was that here in Indiana or was that down in Florida.

Burnell: No. It was—it was in—in Palm Beach.

Officer Kinyon: In Palm Beach? Well—

Burnell: Bruce is my uncle, and he's my best friend.

Officer Kinyon: I understand that. You've told me that several times.

Burnell: I don't even—I don't even drink and drive. I've had two fucking beers.

Officer Kinyon: Okay, so I need an answer. Are you willing to take the test or not? Okay?

Burnell: Well, I mean if I take it, I'm going to jail.

Officer Kinyon: I'm not going to argue with you. But I need a yes or no answer. You have the right to refuse, but I need an answer as to whether you'll take that test or not. And that's something I'm not—

Burnell: Well if I refuse, I'm going to jail either way. So yeah, I guess I gotta take it.

(Tr. 22 –25 ; App. 10)

[5] At this point, Burnell then began to walk away from Officer Kinyon, and he grabbed her arm to stop her. She told him not to touch her and began moving away from the officer again. Officer Kinyon, along with an assisting officer, grabbed Burnell and placed her in handcuffs. Officer Kinyon deemed her behavior as a refusal to submit to the chemical test, and placed her under arrest.

[6] On July 9, 2014, the State charged Burnell with operating a vehicle while intoxicated with a prior conviction within the previous five years as a Level 6 felony. On July 22, 2014, the trial court suspended her license for refusing the chemical test. Burnell filed a petition for judicial review of the suspension on October 2, 2014.

[7] The trial court conducted a hearing on November 14, 2014. During the hearing, both parties agreed that there was probable cause to offer a chemical test, and the only dispute was whether Burnell had refused the test. Officer Kinyon testified, and video from his in-car police camera was played for the trial court. After considering the evidence, the trial court ruled from the bench as follows:

Well, the words as [the defense relates] them are very neutral, very passive, very non-argumentative. The transcript that you offered to let me read instead of viewing the video would have left that impression in my mind that what was happening out there was very neutral, very passive, very ordinary. That's not what I saw in the video, however. She did say the words, “I gotta take it” and she did walk away from him at the same time. It looked to me like she put his—put her hands on him. It was at that point that the other officer stepped in and put cuffs on her. No, she wasn't jumping up and down. No she wasn't belligerent, but she wouldn't stop interrupting him. She kept referring to her uncle the police officer, her best friend. She obviously wanted to argue with [the arresting officer], and was arguing with him. I consider her response to be very equivocal, certainly not something that was indicative of only one meaning.

As the officer testified, he was responding to the totality of the circumstances. And the totality of the circumstances were that she was arguing with him. She was pleading with him to contact her police officer uncle. She was walking away from him. She appeared to be, from my perspective in any event, putting her hands on him, and at that point she was put into cuffs and placed under arrest. I'm not going to terminate the refusal suspension. I believe that the officer was appropriate in determining her behavior to constitute a refusal.

(Tr. 32 –33 ). Burnell now appeals the denial of her petition for judicial review.

Discussion

[8] Burnell appeals the denial of her petition to reinstate her driver's license after the trial court suspended it for refusing a certified chemical test under Indiana's Implied Consent Taw.

[9] A person who operates a motor vehicle impliedly consents to submit to a chemical test as a condition of operating a motor vehicle in Indiana. Ind.Code § 9–30–6–1. When a law enforcement officer has probable cause to believe a motorist has operated a vehicle while intoxicated, the officer must offer the motorist an opportunity to submit to a chemical test. I.C. § 9–30–6–2(a). When an officer offers a motorist a chemical test, the officer must inform the motorist that a refusal will result in the suspension of his or her driving privileges. I.C. § 9–30–6–7(a).¹ Indiana's implied consent statutes provide the State with a mechanism necessary to obtain evidence of a driver's intoxication in order to keep Indiana streets, roads, and highways safe by removing the threat posed by the presence of drunk drivers. Abney v. State, 821 N.E.2d 375, 379 (Ind.2005).

[10] A trial court's denial of a petition for judicial review of a chemical breath test refusal is a final appealable judgment. See I.C. § 9–30–6–10(g). On review, we can only determine whether the evidence is sufficient as a matter of law to support the findings that: (1) the arresting officer had probable cause to believe that the driver was operating a vehicle while intoxicated; and (2) the driver refused to submit to a chemical test offered by a law enforcement officer after being informed of the consequences of such refusal.

Upchurch v. State, 839 N.E.2d 1218, 1220 (Ind.Ct.App.2005). In doing so, we will not weigh the evidence nor judge the credibility of the witnesses, and we will consider only the evidence favorable to the trial court's decision. Id.

[10] Here, Burnell does not challenge whether the officer had probable cause to believe that she had operated a vehicle while intoxicated. Rather, she claims that she agreed to take the test and that her subsequent conduct did not “negate her affirmative response.” (Burnell's Br. 3). In response, the State essentially argues that Burnell's oral response to the implied consent advisement was equivocal and should be treated as a refusal.

[12] We have previously addressed whether a defendant's conduct established refusal of a certified chemical test. Thacker v. State, 441 N.E.2d 708, 711 (Ind.Ct.App.1982) (finding that “recalcitrant behavior ... which physically impedes or threatens to impede the administration of the test ... constitutes refusal”). We have also found that feigning attempts to perform a certified breath test and equivocation by requesting counsel constitute refusal. Hatch v. State, 177 Ind.App. 231, 378 N.E.2d 949 (1978) ; Davis v. State, 174 Ind.App. 433, 367 N.E.2d 1163 (1977). However, the issue of equivocation alone when responding to an officer's request to take a chemical test appears to be one of first impression. Davis is instructive on this question.

[13] In Davis, we held for the first time in Indiana that the Sixth Amendment constitutional right to counsel did not attach at the time a motorist is offered a chemical test. The decision to take a breath test and the potential license suspension for a refusal were administrative in nature, not criminal. Davis, 367 N.E.2d at 1167. Davis relied in part on a case from New Jersey, State v....