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Monday, January 02, 2006

Ind. Decisions - Breath test ruling overturned by Court of Appeals

One of the 16 cases decided Dec. 30th by the Court of Appeals was the subject of an AP story published in the Fort Wayne Journal Gazette yesterday:

Not being able to blow hard enough for a breath test for alcohol is not the same as refusing to take the test, the Indiana Court of Appeals ruled.

The 3-1 ruling Friday reversed a Hancock Superior Court decision. The case involved a woman who was charged with refusing a breath test under Indiana’s implied consent law following an accident in which she was suspected of drunken driving.

The Breathalyzer machine at the jail printed out a ticket saying the sample was invalid. The deputy told Meredith Upchurch she was not blowing hard enough into the machine, and she told him she had asthma. She later presented in court a letter from her physician confirming she had the breathing disorder.

After a second test with the same result, officers arrested the woman, and prosecutors charged her with operating a vehicle while intoxicated and endangering another person.

Upchurch filed a petition disputing the allegation that she had refused the breath test, but Hancock Superior Court Judge Dan Marshall rejected the argument. She then appealed, arguing that the deputy should have offered an alternative alcohol test when the breath test did not yield a valid result.

The case is Meredith Upchurch v. State of Indiana. A quote from the opinion:
On December 20, 2004, the State charged Upchurch with operating a vehicle while intoxicated in a manner that endangered another person, a class A misdemeanor. On February 14, 2005, Upchurch filed a verified petition for judicial finding of no refusal. On March 18, 2005, a hearing was held on Upchurch’s petition. Upchurch presented a videotape depicting the administration of the breath test at the jail and a letter in which her doctor confirmed that she has asthma and indicated that the powder released by the cartridge that is fired when an airbag is deployed could cause an asthma attack. On April 25, 2005, the trial court denied the petition. On May 5, 2005, Upchurch filed a motion to reconsider. On May 16, 2005, the trial court denied the motion. Upchurch appeals.
This footnote could be of interest in future cases:
Because we conclude that the officer was required to but did not provide an alternate chemical test or perform a breath test on another instrument, we need not address Upchurch’s claims that the mouthpiece from the first breath test was a foreign object and therefore the officer was required to wait twenty minutes after the first breath test before administering the second breath test pursuant to section 1.1-4-8(7)(B), or that she did not in fact refuse to take the breath test. However, we note that support for Upchurch’s contention that the officer was required to wait twenty minutes before administering the second breath test can be found in the fact that the instructions of section 1.1-4-8(7)(B) and 1.1-4-8(7)(D) are different. Section 1.1-4-8(7)(B) directs the officer administering the breath test to return to step 1 (subdivision (1)) if “SUBJECT SAMPLE INVALID” is printed on the evidence ticket. Step 1 provides that the person to be tested must not have put a foreign substance in his or her mouth within twenty minutes prior to the breath test. In contrast, section 1.14-8(7)(D) directs the officer to return to step 2 (subdivision (2)) if “SUBJECT SAMPLE, INCOMPLETE” is printed on the evidence ticket.

Posted by Marcia Oddi on January 2, 2006 01:13 PM
Posted to Ind. App.Ct. Decisions