Justices consider transfer in chemical breath test case

Indiana’s rules regarding chemical breath tests can be read as a recipe, with each rule laid out for the process of testing someone’s blood alcohol content meant to be followed sequentially, said the attorney for a woman challenging her misdemeanor drunken-driving charges.

In those rules, police officers are instructed to perform at least two tests before determining that a motorist is intentionally not cooperating and, as a result, has produced an insufficient sample. But in the case of Keyaunna Hurley v. State of Indiana, 49A05-1601-CR-00108, Keyaunna Hurley was only given one test before an officer determined that she was refusing to cooperate, a finding her attorney Robert King argued was reached in conflict with state rules regarding breath tests.

King urged the Indiana Supreme Court to grant transfer in Hurley’s case Thursday, arguing that Indiana State Police trooper Joshua Graves should have administered a second chemical breath test consisting of three blows into the machine before determining that Hurley was purposely refusing to produce a sufficient sample.

Hurley was charged with Class A misdemeanors operating a vehicle while intoxicated endangering a person and operating a vehicle with an alcohol concentration equivalent of 0.15 or more. Hurley sought review of the determination she had refused the test, on which both the trial court and Court of Appeals upheld the decision.

But Lyubov Gore, counsel for the state, told the justices that officers have the discretion not to give the second test if they believe a motorist would continue in their noncompliance. In Hurley’s case, Gore said Graves observed that Hurley was able to blow enough air into the test to produce a sufficient sample, yet failed to do so during all three blows of the first test.

Justice Robert Rucker pushed Gore on that argument, repeatedly asking her if there were any other actions Graves had observed that led him to believe Hurley was intentionally failing to produce a sufficient sample for the test. But Gore maintained that the officer’s observation that Hurley had the ability to produce a sufficient sample yet was failing to do so was enough indication that she was refusing to cooperate. Further, the attorney said there is no guidance in the state code that indicates what signs officers should look for when determining if a motorist is intentionally non-compliant.

Gore also attempted to rebut King’s recipe analogy, arguing that the section dealing with chemical breath tests is divided into categories, not individual steps, so the rules aren’t meant to be followed sequentially.

Instead, the categories provide guidance on the steps officers should take based on the test results, she said. When a result reads “insufficient sample,” the attorney said officers are given the discretion to record a refusal after just one test.

Further, Gore argued that requiring two tests every time would be a waste of resources in situations in which an officer knows that a motorist is going to continue to refuse to cooperate. But Justice Steve David suggested that the opposite could also be a waste of resources because if an officer does not administer a second test, then it forces the court to ask questions as to why there was no second test, why the sample was insufficient, etc.

Further, King said Graves never informed Hurley that she was not blowing hard enough to produce a sample, but Gore argued that Hurley never indicated she was having troubling performing the test.

Regardless, King told the justices that the rule requiring two tests is meant to be protective of motorists, and allowing officers to have too much discretion in determining not to give the second test would place too much power in their hands.