Reversal: Appeals court tosses admission of OWI breath test

The Indiana Court of Appeals reversed a man’s operating a vehicle while intoxicated conviction when it found the admission of his chemical breath test was an abuse of discretion.

In March 2017, Brian Connor was arrested after Indianapolis Metropolitan Police administered a series of field sobriety tests on him at a sobriety checkpoint and found him to be intoxicated. Police then took Connor to a local police station and administered a breath test using the Intox EC/IR II machine.

During the first Intox test, Connor blew too hard and registered a “maximum flow exceeded” message on the instrument. A second test showed that Connor had an alcohol concentration equivalent to 0.097 gram of alcohol per 210 liters of breath.

Conner was ultimately convicted of Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol but less than 0.15 gram of alcohol per 210 liters of breath. At trial, Conner moved to suppress the results of the Intox chemical breath test, arguing that the results were inadmissible because the officer administered the test using a procedure not approved by the Department of Toxicology.

The Indiana Court of Appeals agreed in Brian Harold Connor v. State of Indiana, 18A-CR-442, finding the trial court abused its discretion in admitting the test results because the department had not designated the proper procedure to be followed when administering a breath test after having received a “maximum flow exceeded” error message.

“…Contrary to the State’s assertion, there is no single protocol for a test operator to follow when administering an additional breath test after having received an error message,” Judge Edward Najam wrote for the court. “Rather, there is a significant difference in the procedure to be followed depending on the error message. Without direction from the Department of Toxicology on how to properly proceed following the ‘maximum flow exceeded’ error message, we cannot say that Captain (Don) Weilhamer’s decision to simply wait three minutes before administering a second test using the same machine was correct.

“In sum, the evidence does not show that the technique Captain Weilhamer used to administer the second breath test to Connor was an authorized technique that produced an accurate test result,” Najam continued.  “When Captain Weilhamer received an error message for which there was no corresponding protocol in the administrative code, he improvised. Because the technique he used had not been approved in accordance with a rule promulgated by the Department of Toxicology, as a matter of law the results of the breath test were not admissible.”