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.
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, 103 S.Ct. 916, 74 L.Ed.2d 748 (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, ___ U.S. ___, 136 S.Ct. 2160, 2166, 195 L.Ed.2d 560 (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.
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.
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:
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 video system and played before the trial court, the following exchange occurred:
Tr. at 24. As Burnell said, "yeah, I guess I gotta can take it," Tr. at 24, she stepped away from the officer and he grabbed her by the arm. Tr. at 12, 27. Burnell asked not to be touched. Once Officer Kinyon released her, she began moving away from him again. At this point another officer stepped forward and assisted Officer Kinyon in arresting Burnell. In the process the following exchange occurred:
Tr. at 25. Following the hearing, and after listening to defense counsel's closing arguments the trial court made the following observations:
Tr. at 32-33.
Burnell appealed and in a divided opinion, with each judge writing separately, the Court of Appeals affirmed the judgment of the trial court. In the lead opinion Judge Pyle phrased the question as "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." Burnell v. State, 44 N.E.3d 771, 776 (Ind.Ct.App. 2015). In answer to the question Judge Pyle declared, "we hold that anything short of an unqualified, unequivocal assent to a properly offered chemical test constitutes a refusal." Id. at 777. Concurring in result Judge Crone opined that the court need not go as far to "categorically hold that `anything short of an unqualified, unequivocal assent to a properly offered chemical test constitutes a refusal.'" Id. at 778. Judge Brown dissented, concluding "the evidence presented did not establish as a matter of law that [Burnell] refused to submit to the chemical test under Ind. Code § 9-30-6-9(b)." Id. at 780. Having previously granted transfer we also affirm the trial court's judgment but on grounds different from those expressed in the lead opinion.
The trial court's denial of a petitioner's petition for judicial review is a final appealable judgment in the manner of a civil action. See I.C. § 9-30-6-10(g). And as the party petitioning for review Burnell bore the burden of proof by a preponderance of the evidence. See I.C. § 9-30-6-10(f).
Burnell correctly asserts that she never verbally refused to take a chemical test. And noting that at one point she told the officer, "yeah, I guess I gotta can take it," Burnell also contends her "conduct did not constitute refusal to submit to the chemical test." Br. of Appellant at 6. To support this contention Burnell cites authority in which the facts revealed the defendant's behavior established a refusal and argues the facts in this case are distinguishable. See, e.g., Reynolds v. State, 698 N.E.2d 390, 395 (Ind.Ct.App.1998) (finding a refusal to submit to a chemical breath test where defendant failed on four different occasions to give an adequate breath sample), trans. denied; Thacker v. State, 441 N.E.2d 708, 709 (Ind.Ct.App.1982) (noting that although defendant verbally consented to submit to a chemical test, his conduct, which included becoming "violent, kicking the officers and resisting their attempts to remove him from the patrol car," constituted a refusal); Jaremczuk v. State, 177 Ind.App. 628, 380 N.E.2d 615, 618 (1978) (finding a refusal to submit to a breathalyzer test where defendant verbally agreed to take the test but when he put his mouth onto the mouthpiece he "puffed out his cheeks pretending to blow, but no breath entered the machine").
We acknowledge Burnell's behavior here was not as defiant as that portrayed in the foregoing authority. But the tie binding these cases together is that even without saying "no" or "I refuse" a refusal nonetheless may be established on the basis of conduct alone if the motorist has clearly been asked to take a test. In short a physical failure to cooperate can amount to a refusal. See Mayo v. Moore, 527 N.W.2d 257, 260-61 (N.D.1995) (finding a refusal where motorist did not respond to an officer's inquiry as to whether she would consent to take the test).
At the same time, we do not embrace the proposition that "anything short of an unqualified, unequivocal assent to a properly offered chemical test constitutes a refusal." Burnell, 44 N.E.3d at 777. This approach could be problematic if, say for example, the motorist does not speak or understand the language in which the test was offered; or if the motorist has a
The record here shows Burnell clearly heard and understood the officer's offer of the opportunity to take a chemical test. She thus was capable of refusal. And although first declaring "yeah, I guess I gotta can take it," Burnell nonetheless stepped away from the officer twice, justifying a reasonable person in the officer's position to believe that Burnell manifested an unwillingness to submit to the test. We are not unmindful the evidence in this case presents conflicting inferences. But in appealing from a negative judgment Burnell has the burden of demonstrating the evidence leads to but one conclusion and the trial court reached an opposite conclusion. She has failed to carry this burden.
We affirm the judgment of the trial court.
RUSH, C.J., and DAVID, MASSA and SLAUGHTER, JJ., concur.