Rucker, J.
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.
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… 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. § 9-30-6-7.1 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. …
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.” … Having previously granted transfer we also affirm the trial court’s judgment but on grounds different from those expressed in the lead opinion.
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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.” …
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 non-alcohol related auditory impairment such that she does not hear the offer. Instead we think it more appropriate to adopt an approach that takes into consideration the facts and circumstances of each case. Hence, we hold a refusal to submit to a chemical test occurs when the conduct of the motorist is such that a reasonable person in the officer’s position would be justified in believing the motorist was capable of refusal and manifested an unwillingness to submit to the test. See Winter v. Peterson, 305 N.W.2d 803, 806 (Neb. 1981); accord Campbell v. Super. Ct. In & For Maricopa Cty., 479 P.2d 685, 696 (Ariz. 1971) (en banc).
We affirm the judgment of the trial court.
Rush, C.J., and David, Massa and Slaughter, JJ., concur.