                                                                           Sep 24 2015, 9:24 am




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Russell B. Cate                                            Gregory F. Zoeller
      Casandra J. Nelson                                         Attorney General of Indiana
      Campbell Kyle Proffitt, LLP
                                                                 Karl M. Scharnberg
      Carmel, Indiana
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kristy Burnell,                                           September 24, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                29A02-1412-CR-849
              v.                                                Appeal from the Hamilton Superior
                                                                Court

      State of Indiana,                                         Trial Court Cause No.
                                                                29D06-1407-F6-5545
      Appellee-Plaintiff.
                                                                The Honorable Gail Z. Bardach,
                                                                Judge




      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,

      Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015                Page 1 of 19
      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
      Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 2 of 19
        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.


Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 3 of 19
              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:



      Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 4 of 19
              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 Law.


[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.

      Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 5 of 19
       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




       1
         While there is no “official” implied consent warning, many officers—including Officer Kinyon here—use
       the same or something similar to the warning from State v. Ray, 886 N.E.2d 43, 45 (Ind. Ct. App. 2008):

               I have probable cause to believe that you’ve operated a vehicle while
               intoxicated. I must now offer you the opportunity to submit to a
               chemical test and inform you that your refusal to submit to 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 a test?

       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015                 Page 6 of 19
       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.


[11]   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, 378 N.E.2d 949 (Ind. Ct. App. 1978); Davis v. State, 367 N.E.2d 1163

       (Ind. Ct. App. 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.




       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 7 of 19
[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. Pandoli,

       262 A.2d 41 (N.J. Super. Ct. App. Div. 1970).


[14]   There, after the defendant was given the implied consent advisement, he

       refused to take the test. Id. at 42. Later, he told an officer that he would take

       the test if he had to, but wanted to contact an attorney. Id. In interpreting New

       Jersey’s implied consent statute and concluding that the defendant had refused

       the chemical test, the court stated the following:

               Having in mind the remedial purpose of the statute, and the
               rapidity with which the passage of time and the physiological
               processes tend to eliminate evidence of ingested alcohol in the
               system, it is sensible to construe the statute to mean that anything
               substantially short of an unqualified, unequivocal assent to an
               officer’s request that the arrested motorist take the test constitutes
               a refusal to do so. The occasion is not one for debate, maneuver,
               or negotiation, but rather for a simple “yes” or “no” to the
               officer’s request.


       Id. (internal citation omitted). The question, then, is can we interpret Indiana’s

       Implied Consent Law in such a manner that any answer short of “yes” or “no”

       to an officer’s request constitutes a refusal.




       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 8 of 19
[15]   The cardinal rule in statutory construction is to determine and give effect to the

       true intent of the legislature. Jacks v. State, 853 N.E.2d 520, 522 (Ind. Ct. App.

       2006). To do this, we interpret the statute according to the ordinary and plain

       meaning of the language used, absent a clearly manifested purpose to do

       otherwise. Id. Further, we presume that the legislature intended logical

       application of the language in the statute, so as to avoid unjust or absurd results.

       State v. Evans, 810 N.E.2d 335, 337 (Ind. 2004) (quoting Bolin v. Wingert, 764

       N.E.2d 201, 204 (Ind. 2002)). Moreover, when interpreting the words of a

       statute, we must construe them with due regard for all other sections of the act

       and with regard for the legislative intent to carry out the spirit and purpose of

       the act. N.D.F. v. State, 775 N.E.2d 1085, 1088 (Ind. 2002).


[16]   The implied consent statutes are aimed at providing law enforcement officers

       with implied consent for performing chemical tests on drivers who are either

       thought to be intoxicated or who have been involved in accidents involving

       fatalities or serious bodily injuries. Brown v. State, 744 N.E.2d 989, 993 (Ind. Ct.

       App. 2001). “A person who operates a vehicle impliedly consents to submit to

       [a] chemical test . . . as a condition of operating a vehicle in Indiana.” I.C. § 9-

       30-6-1.


[17]   Furthermore, INDIANA CODE § 9-30-6-2 provides the following:


               (a) A law enforcement officer who has probable cause to believe
                   that a person has committed an offense under this chapter, IC
                   9-30-5 [operating a vehicle while intoxicated] . . . shall offer
                   the person the opportunity to submit to a chemical test.


       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 9 of 19
                                                      *****
               (c) A test administered under this chapter must be within three
               (3) hours after the law enforcement officer had probable cause to
               believe the person committed an offense under IC 9-30-5 or a
               violation under IC 9-30-15.
               (d) A person must submit to each chemical test offered by a law
               enforcement officer in order to comply with the implied consent
               law.
[18]   (emphases added). The language of our implied consent law is clear. Once a

       person operates a vehicle in Indiana, they have impliedly or indirectly

       consented to take a properly offered chemical test. In addition, a motorist must

       submit to every chemical test offered to be in compliance with the statute.

       Finally, when an officer advises a motorist of the consequences of refusing a

       chemical test, the warning must be in “absolute terms.” State v. Ray, 886

       N.E.2d 43, 47-48 (Ind. Ct. App. 2008) (citing State v. Huber, 540 N.E.2d 140

       (Ind. Ct. App. 1989), trans. denied) (implied consent statute mandated an

       advisement “that refusal will result in suspension”).


[19]   Just as an officer’s implied consent advisement must unequivocally inform a

       motorist that his or her refusal will result in suspension of their driving

       privileges, a motorist’s response must also be unequivocal to the proper offer of

       a chemical test. The statute as written leaves a motorist no room for

       negotiation or debate. Allowing any equivocal response from a motorist when

       confronted with a properly offered chemical test does not comport with the

       mandatory language of the statute or its purpose. Accordingly, we hold that




       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 10 of 19
       anything short of an unqualified, unequivocal assent to a properly offered

       chemical test constitutes a refusal.


[20]   Turning to Burnell’s response to Officer Kinyon’s implied consent advisement,

       we note that she first answered that she did not know if she would take the test

       and asked the officer to call her uncle. When Officer Kinyon told her that he

       needed a yes or no answer, Burnell responded that if she refused she was going

       to jail “so yeah, I guess I gotta take it.” (App. 10 at 20:49:22). She then began

       to walk away, and Officer Kinyon grabbed her arm and told her not to move.

       Burnell moved out of his grasp, told the officer not to touch her, and moved

       away again. Officers then placed her in handcuffs.


[21]   Based upon this evidence, the trial court found that Burnell’s answers and

       conduct did not equate to an “answer indicative of one meaning” and

       concluded that she had refused the chemical test. (Tr. 32-33). Burnell’s claim

       that she agreed to the test when she said, “yeah I guess I gotta take it” is a

       request that we reweigh the evidence, which we will not do. See Upchurch, 839

       N.E.2d at 1220. Accordingly, we affirm the trial court’s order upholding her

       license suspension under Indiana’s Implied Consent Law.


[22]   Affirmed.


       Crone, J., concurs in result with opinion.


       Brown, J., dissents with opinion.



       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 11 of 19
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Kristy Burnell,                                            Court of Appeals Case No.
                                                                  29A02-1412-CR-849
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Crone, Judge, concurring in result.


[23]   I agree with Judge Pyle’s affirmance of the trial court’s determination that

       Burnell refused a chemical test, but I do not believe that we need go so far as to

       categorically hold that “anything short of an unqualified, unequivocal assent to

       a properly offered chemical test constitutes a refusal.” Supra at 11. Each case

       should be judged on its specific facts, and in my view the facts most favorable to

       the trial court’s determination in this case are sufficient to affirm it.


[24]   I also write separately because this case raises some questions left unanswered

       by our supreme court’s opinion in Robinson v. State, 5 N.E.3d 362 (Ind. 2014),

       regarding the proper standard for reviewing video evidence on appeal. In

       Robinson, the defendant was stopped for unsafe lane movement and charged

       with marijuana possession and operating while intoxicated. She filed a motion

       to suppress the evidence derived from the stop, arguing that the stop was not


       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015           Page 12 of 19
       supported by reasonable suspicion because her vehicle never left its lane. The

       trial court denied the motion and ultimately found her guilty, giving more

       credence to the testimony of arresting officer Deputy Claeys than to the video

       from his in-car camera.


[25]   In affirming Robinson’s convictions, our supreme court stated,


               Robinson argues Deputy Claeys lacked reasonable suspicion to
               stop her vehicle and thus violated her rights under both the
               federal and state constitutions. As a threshold matter, both
               parties dispute the significance of the video evidence. Robinson
               notes the trial court conceded the video “did not clearly
               demonstrate that Robinson's vehicle veered off the roadway …
               but speculated that the officer’s observations at the scene were
               superior to his in-car camera.” The State, on the other hand,
               cautions us not to “rest [our] determination on minutia of an
               imperfect and rudimentary video.”

               While technology marches on, the appellate standard of review
               remains constant. [W]e do not reweigh the evidence. Our
               colleagues in other states have taken a similar approach when
               faced with video evidence.

               We do not believe, however, as some of our colleagues in other
               jurisdictions do, that the very act of reviewing video evidence
               constitutes impermissible appellate reweighing. Rather, we
               consider video evidence admitted in the trial court to be a
               necessary part of the record on appeal, just like any other type of
               evidence.

               And just like any other type of evidence, video is subject to
               conflicting interpretations.…

               What is more, “the video record may ‘speak for itself,’ but it does
               not and cannot speak for the visual input a judge observes and
       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 13 of 19
               interprets that falls outside the scope of the camera, nor does it
               filter events and behavior through his or her experience and
               expertise.” Bernadette Mary Donovan, Note, Deference in A
               Digital Age: The Video Record and Appellate Review, 96 Va. L. Rev.
               643, 676 (2010). Although this statement was made in the
               context of a discussion of appellate consideration of video trial
               transcripts, we believe the same reasoning applies to appellate
               consideration of video evidence, and even to law enforcement
               reaction to an evolving situation. Deputy Claeys, as he drove
               down County Road 4 on that October night, was observing
               Robinson’s vehicle through the lens of his experience and
               expertise. And when Deputy Claeys testified at the suppression
               hearing, the trial judge heard his testimony—along with the other
               witness testimony and evidence, including the video—through
               the lens of his experience and expertise. Ultimately, that
               experience and expertise led the trial judge to weigh Deputy
               Claeys’s testimony more heavily than the video evidence, and we
               decline Robinson’s invitation to substitute our own judgment for
               that of the trial court and rebalance the scales in her favor.

               The trial court found, as a matter of fact, that to the extent
               Deputy Claeys’s testimony conflicted with the video, the former
               was more reliable than the latter. Deputy Claeys testified “both
               passenger side tires were over the fog line” and “completely off
               the roadway” “twice.” Thus, we must now decide whether those
               facts constitute reasonable suspicion for a traffic stop, as a matter
               of law, in accordance with our federal and state constitutions.


       Id. at 365-67 (citations and footnotes omitted). The majority held that they did.


[26]   Here, the relevant portions of Officer Kinyon’s testimony regarding Burnell’s

       traffic stop are largely consistent (or at least not inconsistent) with what the

       video shows. That being the case, is whether Burnell refused to take the

       chemical test a factual determination, which is entitled to deferential appellate

       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 14 of 19
review, or a legal conclusion, which requires no deference? See Woodcox v. State,

30 N.E.3d 748, 750 (Ind. Ct. App. 2015) (“While we defer to the trial court’s

factual determinations, we review legal conclusions de novo.”). In other words,

given that the relevant facts are essentially undisputed, are we in as good a

position as the trial court to watch the video of the traffic stop and make our

own determination regarding whether Burnell refused to take the chemical test?

That remains an open question after Robinson, and I, for one, would welcome

further clarification of the law in this area.




Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 15 of 19
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Kristy Burnell,                                            Court of Appeals Case No.
                                                                  29A02-1412-CR-849
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Brown, Judge, dissenting.


[27]   I respectfully dissent from the majority’s conclusion that Burnell refused the

       chemical test. As noted above, our task on review is to “determine whether the

       evidence is sufficient as a matter of law to support the finding[] that . . . 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, 839

       N.E.2d at 1220. Under Indiana’s implied consent statute, Ind. Code § 9-30-6-1,

       “[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.”

       Today, the majority adopts a rule that “anything short of an unqualified,

       unequivocal assent to a properly offered chemical test constitutes a refusal” and

       holds that Burnell refused the test under the rule. Supra at 10-11.




       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015           Page 16 of 19
[28]   Burnell was severely intoxicated when she was asked by Officer Kinyon to

       submit to the chemical test, which she readily admitted to him would result in a

       finding that she was, in fact, intoxicated. Transcript at 24 (“Well, I mean if I

       take it, I’m going to jail.”). Indeed, at the hearing the taped conversation of

       Officer Kinyon with the on-call prosecutor was played in which Officer Kinyon

       told the prosecutor that Burnell “PBT-ed at 2-9-5 with some -- with some of the

       worst field sobriety I’ve ever seen.” Id. at 27. When asked to submit to the

       chemical test Burnell, who had been largely cooperative with Officer Kinyon by

       performing numerous field sobriety tests and submitting to a PBT, briefly

       considered her options, in which she remarked that regardless of whether she

       took the chemical test she was going to jail, and then answered: “So yeah, I

       guess I gotta take it.” Id. at 24. At about the same time, and while flanked by

       Officer Kinyon and another officer, she took a step and was immediately

       restrained. Officer Kinyon told her that he was “going to take her refusal to

       answer [the] question as a refusal” and she was placed in handcuffs. Id. at 25.


[29]   The majority acknowledges that the facts presented here are distinguishable

       from those of the cases it discusses, noting that “the issue of equivocation alone

       when responding to an officer’s request to take a chemical test” is an issue of

       first impression. Supra at 7. The facts of Thacker involved a man who twice

       verbally consented to take the chemical test, but when his legs were freed “he

       immediately became violent, kicking the officers and resisting their attempts to

       remove him from the patrol car” and the decision was made to not administer

       the test “because his violence constituted a threat to the examining equipment.”


       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 17 of 19
       441 N.E.2d at 709. This court held that “recalcitrant behavior” such as

       Thacker’s “which physically impedes or threatens to impede the administration

       of the test” constituted a refusal to submit to the test. Id. at 711.


[30]   The Thacker court discussed the other cases relied upon by the majority, Hatch

       and Davis. Id. at 710. Hatch involved a driver who “took the mouthpiece to his

       mouth but would not blow into it with sufficient force to fill the sample

       capsule,” and this court “treated the failure to give a suitable sample as a refusal

       to take the test.” Id. The question in Davis was whether the right to counsel

       applied to Indiana’s Implied Consent Law, in which this court held that “Davis

       had no constitutional right to consult with counsel prior to or during the taking

       of the test . . . .” Id. The court reasoned, citing to an opinion from the Superior

       court of New Jersey, Appellate Division, that “the remedial purpose of the

       statute, and the rapidity with which the passage of time and the physiological

       processes tend to eliminate evidence of ingested alcohol in the system” suggest

       that the statute be construed such that “anything substantially short of an

       unqualified, unequivocal assent to an officer’s request that the arrested motorist

       take the test constitutes a refusal to do so. The occasion is not one for debate,

       maneuver or negotiation, but rather for a simple ‘yes’ or ‘no’ to the officer’s

       request.” Id. at 710-711 (quoting Davis, 174 Ind. App. at 437, 367 N.E.2d at

       1166 (quoting Pandoli, 262 A.2d at 42)) (emphasis and brackets omitted).


[31]   Unlike our previous cases, here there is no evidence that Burnell attempted to

       hinder Officer Kinyon’s investigation into her state of intoxication by either

       physically resisting or feigning an attempt to perform the test, or otherwise

       Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015   Page 18 of 19
delay taking the test by requesting counsel. Faced with the question from

Officer Kinyon, an intoxicated Burnell weighed her choices (and in doing so

admitted that she was intoxicated) and, resigned to her fate, told him “I guess I

gotta take it.” Transcript at 24. I would find that Burnell’s statement was not

“substantially short of an unqualified, unequivocal assent,” Pandoli, 262 A.2d at

42 (emphasis added), and that accordingly the evidence presented did not

establish as a matter of law that she refused to submit to the chemical test under

Ind. Code § 9-30-6-9(b). I would reverse the court’s order on Burnell’s petition

for judicial review and reinstate her driving privileges.2




2
  Regarding Burnell’s movements made at around the time she told Officer Kinyon “I guess I gotta take it,”
in reviewing the relevant portion of the video I observed Burnell facing Officer Kinyon with her hands in her
pockets, and while she is stating “[w]ell if I refuse, I’m going to jail either way,” she begins to rock backwards
and takes a step or two in that direction. State’s Exhibit 1 at Car 48, 20:49:18-23. She then begins to move
forward and takes at most four small steps while stating “I guess I gotta take it,” and Officer Kinyon, without
moving his feet, grabs her by the arm, tells her “don’t go anywhere,” and she steps backward. Id. at 20:49:23-
32. After Officer Kinyon lets go, she takes a step to the side while facing Officer Kinyon, and she is promptly
grabbed by him and another officer, who is standing a few feet behind her, and placed in handcuffs. Id. at
20:49:32-52.
While I may not substitute my own review of this video evidence “for that of the trial court and rebalance the
scales,” Robinson v. State, 5 N.E.3d 362, 367 (Ind. 2014), I believe her movements to be immaterial because
there is nothing in the record, and indeed the court does not find, that these steps were an attempt to elude
the officers or otherwise create a delay in taking the test. The question presented here concerns
“equivocation alone when responding to an officer’s request to take a chemical test . . . .” Supra at 7. Also,
despite the court’s finding that Burnell “wouldn’t stop interrupting” and “wanted to argue with” Officer
Kinyon, and that she “kept referring to her uncle the police officer,” Transcript at 32, as noted by the
majority such conduct occurred only prior to Officer Kinyon’s direction that he needed a yes or no answer,
again to which Burnell responded by stating “I guess I gotta take it.” Id. at 24.

Court of Appeals of Indiana | Opinion 29A02-1412-CR-849 | September 24, 2015                        Page 19 of 19
