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Burnell v. State

Supreme Court of Indiana

August 23, 2016

Kristy Burnell, Appellant (Defendant below),
v.
State of Indiana, Appellee (Plaintiff below).

         Appeal from the Hamilton Superior Court #6, No. 29D06-1407-F6-5545, Honorable Gail Z. Burdach, Judge

         On Petition To Transfer from the Indiana Court of Appeals, No. 29A02-1412-CR-849

          ATTORNEY FOR APPELLANT Russell B. Cate Campbell Kyle Proffitt LLP Carmel, Indiana

          ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

          Rucker, Justice

          The driving privileges of a motorist were administratively suspended on grounds the motorist refused to take a chemical test. Upon judicial review the trial court declined to set aside the suspension. We affirm the trial court's judgment.

         Background

         Our courts have "long recognized the toll that drunk driving has taken on the general public and the state's interest in preventing accidents caused by drivers who are intoxicated." Smith v. Cincinnati Ins. Co., 790 N.E.2d 460, 461 (Ind. 2003) (citing cases); see also South Dakota v. Neville, 459 U.S. 553, 558 (1983) (noting "[t]he situation . . . of the drunk driver [ ] occurs with tragic frequency on our Nation's highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy."). To combat the serious harm inflicted by drunk drivers, all fifty States and the District of Columbia have enacted laws prohibiting motorists from driving with a blood alcohol concentration exceeding a specific level. Determining whether a driver's blood alcohol concentration exceeds the legal limit requires a test, "and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed 'implied consent laws.'" Birchfield v. North Dakota, 136 S.Ct. 2160, 2166 (2016).

         Indiana's implied consent law provides: "A person who operates a vehicle impliedly consents to submit to the chemical test provisions of this chapter as a condition of operating a vehicle in Indiana." Ind. Code § 9-30-6-1. In turn, 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). "If a person refuses to submit to a chemical test, the arresting officer shall inform the person that refusal will result in the suspension of the person's driving privileges." I.C. § 9-30-6-7(a). The question presented in this case is what constitutes a "refusal" to submit to a chemical test so as to warrant the revocation of the license of a person arrested for driving under the influence of alcohol.

         Facts and Procedural History

         Arising out of facts recounted below, Officer David Kinyon of the Carmel Police Department tendered a probable cause affidavit to the Hamilton County prosecutor's office declaring that Kristy Burnell failed to submit to a chemical test. See I.C. § 9-30-6-7.[1] The affidavit triggered proceedings that ultimately resulted in the administrative suspension of Burnell's driver's license. See I.C. § 9-30-6-9 through 10. Burnell then sought a hearing challenging her license suspension.[2] The facts are as follows.

         On July 3, 2014 Officer Kinyon observed Burnell driving her car on Carmel Drive in Hamilton County. Burnell ran a stop sign and made an improper turn. Initiating a traffic stop, Officer Kinyon noted an odor of alcoholic beverage coming from Burnell and also observed that her speech was slurred, her eyes were bloodshot and her balance unsteady. Officer Kinyon then administered to Burnell three field sobriety tests, all of which she failed. After completing the tests, the officer advised Burnell:

I do have probable cause to believe that you have operated a vehicle while intoxicated and I must now offer you the opportunity to take a chemical test, and inform you a 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?

Tr. at 22-23. In response to Officer Kinyon's question Burnell repeatedly asked to speak to her uncle-a police officer-and also informed Officer Kinyon that she had been previously convicted in the State of Florida for the offense of operating while intoxicated. Captured on Officer Kinyon's in-car ...


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