Skip to comments.Woman With Asthma Wins Court Ruling Over Breath Test
Posted on 01/01/2006 3:23:54 PM PST by digger48
INDIANAPOLIS -- 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.
According to court documents, a Hancock County sheriff's deputy administered field sobriety tests, including a portable breath test, to Meredith Upchurch after a December 2004 traffic accident. The deputy then asked her to go to the jail to take another breath test, and she complied.
However, the Breathalyzer machine at the jail printed out a ticket saying the sample was invalid. The deputy told 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.
That is what SHOULD have happened.
Breath tests are FREQUENTLY wrong. If you blow positive, demand a bood test.
"Why couldn't they have a blood test ordered."
Since she was complying, I don't think a blood test needed to be ordered.....they could have taken her to the hosp and she'd have willingly submitted......or at least thats the way it seems from this article. No court order is necessary if the suspect willingly complies.
The way DUI law are written, they didn't have to. Essentially, DUI defendants are considered guilty until proven innocent, and the normal constitutional protections against self-incrimination don't apply.
The cops blew it : )
She could then claim she is a "bleeder".
And, if asked to walk a straight line she could claim she was afraid of heights. It never ends.
Recite the alphabet backwards? She could claim she is poor and uneducated. It never ends.
Exactly. I live in Hancock County, and the law enforcement here, is essentially a police state. If I had to guess, I'd say they thought the woman would simply be convicted of failure to comply with the breath test - so why bother with a blood test?. Our local law enforcement is obsessed with dui's.
She could have done alot of things, including asking for a lawyer.
In fact, from what the article states, she complied with the officers requests.
She never said no, she could have said no, she could have claimed to be the 2nd coming of god, but she didn't.
The cops screwed up.
They should have given her a blood test.
It never ends....when people who should know better screw up and blame others.
They screwed up.
They also could have gotten a urine test.
Yeah, it's pretty obvious when a person with asthma is doing breathing tests also. They just thought they had an easy ticket.
Wait until the DMV "administratively" saddles her with one of those ingnition interlock thingies, which essentially mechanically demands the equivalent of a breathalyzer blow to start up, and another every 6-10 minutes to keep the car running.
Just because you win in court doesn't mean you win with this particular offense.
Multiple punishments from multiple sources.
And, by the way, the arrest will never be expunged.
Breath tests, blood tests, urine tests.
Heck next time we find a suspect lets just have their brains sent off to the lab and see if they have rabies too.
They should have given her a blood test.
Most jurisdictions, the cops don't get to play multiple choice until they find something that works - yet.
I'm having memories of a friend who had to take a drug test in high school for the team he was on.
They wanted him to take a urine test, but he couldn't make himself go.
He volunteered for a blood test and a hair test.
They wouldn't do it, he (and they) couldn't and wouldn't explain it, so he wound up sitting in the coaches office for about an hour chatting (and drinking water) until he finally could go, and take his test....which he passed.
Some interesting info and also has a BAC calculator on it.
This was about easy money.
Nothing personal, just getting her cash.
She won, they aren't going to waste their own time and money fighting her, they'll move on to someone else.
One of my former lawyers (who should have his licience revoked) beats his DWIs all the time in court.
For a guy who is pretty much a drunk, the fact that they can't do anything to him, pretty much says it all.
Not quite. Implied consent says you have to take one of the tests on demand or else "voluntarily" give up your license for a year (or however long it s in this state).
But if one is impaired to a level potentially deemed criminal, it make sense to give up the year and make the police make their case based on observation.
Or even below the level deemed to be criminal.
There are a lot of people convicted with BAC or BrAC below .08.
Alot of states do have those laws, NYS is supposed to also.
They can be beaten quite often.
Surprisingly (or if your a cynic, not so) DWI cases are amazingly hard to prove or win for prosecutors, and most of the secondary charges get tossed with them when contested.
If they could drive her to a jail to give her a second breathalyzer, they could easily have driven her to a hospital and gotten either a blood or urine test.
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