State v. Huber
| Decision Date | 03 July 1989 |
| Docket Number | No. 37A03-8812-CR-372,37A03-8812-CR-372 |
| Parties | STATE of Indiana, Appellant (Plaintiff Below), v. Charles R. HUBER, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellant.
Michael Riley, Riley & Riley, Rensselaer, for appellee.
The State of Indiana appeals from a trial court judgment ordering the Indiana Bureau of Motor Vehicles to remove a license suspension for breath test refusal from the driving record of defendant-appellee Charles Huber. The facts relevant to this appeal are summarized below.
On July 30, 1988, Huber was stopped by an Indiana State Police trooper for speeding. After conducting field sobriety tests, the trooper determined that he had probable cause to request Huber to submit to a breathalizer test. The trooper recited the Implied Consent Law from memory:
"
Huber refused to submit to a breathalizer test, and the trooper placed him under arrest for operating a motor vehicle while intoxicated. Huber's license was also suspended.
A hearing on the breath test refusal was held on September 7, 1988. The lower court found that Huber was not properly advised of the Implied Consent Law. On that basis, the court ordered the license suspension for breath test refusal to be removed from Huber's driving record.
On appeal, the State argues that the trial court erroneously based its decision upon a finding that Huber's refusal of a breathalizer test was not knowing. Because the court made no such finding, the issues presented for review are more appropriately stated as follows:
(1) Does the Implied Consent Law require an arresting officer to advise a person of the consequences of refusing to submit to a chemical test, before the person's refusal will result in a suspension of driving privileges?
(2) If such an advisement is required, did the trooper's recitation in the instant case adequately convey the consequences of refusal?
Indiana's Implied Consent Law provides in pertinent part:
"(a) If a person refuses to submit to a chemical test, the arresting officer shall inform the person that his refusal will result in the suspension of his driving privileges.
(b) If a person refuses to submit to a chemical test after having been advised that the refusal will result in the suspension of his driving privileges ..., the arresting officer shall forthwith:
(1) obtain the person's driving license or permit if the person is in possession of the document and issue a receipt valid until the person's driving privileges are suspended by the bureau;
(2) submit a probable cause affidavit to the prosecuting attorney of the county in which the alleged offense occurred; and
(3) send a copy of the probable cause affidavit submitted under subdivision (2) to the bureau." [Emphasis added.]
IND.CODE Sec. 9-11-4-7 (1988 Ed.).
The statute contemplates that the arresting officer shall advise a person of the consequences of refusing to submit to a chemical test, before steps are taken to suspend that person's driving privileges for test refusal.
In Roberts v. State (1985), Ind.App., 474 N.E.2d 144, the appellate court confirmed that a warning of the consequences of chemical test refusal is one of the elements essential to a suspension of driving privileges under the Implied Consent Law. Emphasizing that the statute does not impose a mens rea requirement, the Court identified the requisites for license suspension under IND.CODE Sec. 9-11-4-7:
"All that is required is that the suspect driver knows that he has been asked to submit to a chemical test and that he has been advised of the consequences of his refusal."
Roberts, supra, 474 N.E.2d at 150.
As an admonition of the consequences of chemical test refusal is required before a suspect driver's privileges may be suspended, the next question is whether the advisement in the instant case adequately conveyed the consequences of test refusal. The trooper warned Huber, "If you refuse to submit to this test, your license may be suspended for one year." The Implied Consent Law requires an advisement that refusal will result in suspension. IND.CODE Sec. 9-11-4-7. The trial court noted the discrepancy...
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