Can't Unrefuse a Refusal

You can't unrefuse a refusal the Iowa Supreme Court ruled.

Toby Welch was arrested for Operating While Intoxicated (OWI, DUI), in the early morning hours on August 1st, 2009. Following a relatively short investigation which included Mr. Welch consenting to a preliminary breath test, Mr. Welch was arrested for operating a motor vehicle while intoxicated. He was transported to the police station where implied consent proceedings were invoked and he was requested to submit to an evidentiary breath test. Being faced with the decision to consent or refuse the breath test, Mr. Welch requested to place phone calls in order to secure advice, as was his right. After unsuccessfully attempting to contact his attorney and a few family members, Mr. Welch advised the arresting officer that he did not want to take the breath test. Consequently, the arresting officer entered Mr. Welch's refusal into the computer and placed him in a temporary holding area. While in the holding area, Mr. Welch received a return call from this attorney and after speaking with his lawyer, requested an opportunity to take the breath test. The arresting officer most certainly could have permitted Mr. Welch to take the test at that time, however, he informed Mr. Welch that it was "too late" and he had already refused the breath test. As a result Mr. Welch's driving privileges were suspended for his test refusal instead of the lesser period for test failure, or not at all had he passed the test.

Mr. Welch appealed the suspension of his driving privileges for test refusal, alleging that he should be able to unrefuse his refusal. Unfortunately, the Iowa Supreme Court saw it differently. In Welch v. Iowa Department of Transportation, Justice Mansfield, writing for the Court, concluded that a person arrested for OWI is only entitled to "one refusal." This decision was reached based upon the plain language of Iowa's implied consent law which states if a person refuses to consent, a test shall not be given. The Court further justified this holding based upon the fact that a "clearcut 'one refusal' rule reduces the time and cost burdens on law enforcement."

Whether one agrees or disagrees with the Iowa Supreme Court's ruling on this case, there are a couple of important points that are worth repeating.

First, an individual arrested for operating while intoxicated has the legal right to contact an attorney, family member, or both before making a decision regarding chemical testing. While the individual does not have an absolute right to wait two-hours before making their decision, so long as the individual is making a good-faith effort to contact and attorney or family member for advice, the arresting officer cannot unreasonably interfere with those attempts. Don't make a decision without first obtaining the advice you need.

Second, anything less then an unqualified "consent" is a refusal. You have a "reasonable opportunity" to think about your decision and contact someone to assist with you but actions can amount to a refusal just as much as words. Saying "I consent" but not complying with the officer's instructions on how to take the test can still result in a refusal the same way saying "I refuse" will. If you consent, take the test correctly or run the risk of being marked as a "refusal" for non-compliance.

Finally, make sure you are comfortable with your decision to take or refuse testing before you make your decision. There are a number of important considerations to take into account before you make that decision. It never hurts to study up before you find yourself in that unfortunate predicament. Know your rights, exercise your rights, and preserve your freedom. Remember you can't unrefuse a refusal. You can however, refuse after con