Pyle, J.
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, 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.
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… Burnell ran a stop sign and made an improper turn, and Officer Kinyon, along with two other officers, conducted a traffic stop.
Officer Kinyon … performed a number of field sobriety tests on Burnell. The field sobriety tests were recorded by Officer Kinyon’s incar video system. Burnell failed every test. After the field sobriety tests, the following colloquy took place between Burnell and Officer Kinyon [after he asked her to take chemical test and advised her that refusal would result in license suspension]:
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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.
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.
[Record citations omitted throughout.]
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.
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… During the hearing [for judicial review of her resulting license suspension], … 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:
Well, the words as [the defense relates] them are very neutral, very passive, very non-argumentative. … 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. …
… [T]he totality of the circumstances were that she was arguing with him. … I’m not going to terminate the refusal suspension. I believe that the officer was appropriate in determining her behavior to constitute a refusal.
Burnell now appeals the denial of her petition for judicial review.
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We have previously … 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. …
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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 [I.C. § 9-30-6-2] or its purpose. Accordingly, we hold that anything short of an unqualified, unequivocal assent to a properly offered chemical test constitutes a refusal.
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… [T]he 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. 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. [Citation omitted.] Accordingly, we affirm the trial court’s order upholding her license suspension under Indiana’s Implied Consent Law.
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Crone, J., concurs in result with opinion.
Brown, J., dissents with opinion.
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Crone, Judge, concurring in result.
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.” 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.
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. …
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 review, or a legal conclusion, which requires no deference? [Citation omitted.] 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.
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Brown, Judge, dissenting.
I respectfully dissent from the majority’s conclusion that Burnell refused the chemical test. … 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.
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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 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.” I would find that Burnell’s statement was not “substantially short of an unqualified, unequivocal assent,” [citation omitted] and … reverse the court’s order on Burnell’s petition for judicial review and reinstate her driving privileges.2
[Footnote 2:] ….
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 . . . .” Also, … as noted by the majority [Burnell’s argumentative] 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.”