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.
You open an interesting avenue.
Next time I am there, I should ask my lawyer whether it is worth it to refuse the test until he shows up. You might be right that the Implied Consent could be a little weak.
It looks like the "Keystone Kops" may have moved to Hancock County, Indiana. The lady told the dummy deputy she suffered from asthma, and he should immediately have taken her for a blood/urine test for her alcohol/drug tests. Maybe the sheriff there should spend a few bucks and teach his cronies how the laws really do work!! She should sue them if they enter this into her driving records, or if they arrested her for dui. Not her fault the deputy was stupid and uninformed!
The court has said that since she chose one of her options and was unable to perform it, that is not a refusal
Unless she subsequently agreed to another form of test, she's done. The cops can't force another form of test - yet. Look for laws to close this "loophole".
If my former lawyer who is a drunk can beat these cases while knocking down bourbons during recess, I'm pretty sure most lawyers can or at least reduce the charges to tickets for speeding.
What I'd really like to know is whether or not she'd been drinking and whether or not she was drunk.
I'm sick of drunks getting off due to technicalities and I'm sick of cops giving unwarranted tickets as a means of revenue enhancement. So I'd like to know who is really at fault here.
Not in this neck of the woods.
Here, if you attract the attention of law enforcement and are asked to step out of the car, you are as good as convicted.
Even if you're not convicted, you're punished administratively by the DMV long before you get in front of a judge.
Some jurisdictions will take away your vehicle and sell it at auction even before that occurs. And BTW, DWI isn't just about booze or illicit drugs anymore.
MADD.
NYC used to (or still tries to) do that, but it costs them more money then it gets them.
The DMV here gets beaten like a rented government mule when it tries anything, DWI convictions here are done mostly from defendents pleading guilty.
If a defendent fights in court, then the city start reducing charges, untill it gets beaten.
It could be a jurisidiction thing, with some places easier to beat then others, it also probably explains why NYC, with some of the harshest DWI laws in the country, has so many problems with DWIs and enforcement.
The guys who write alot of these laws never sat down and thought about "cost benefit analysis", they seemed to have just thought it costs nothing and makes money.....which is wrong.
I know some parts of the country, local jurisdicition law enforcement actually gets some of the money it helps raise, if its like that in this womans area, then she might as well have a bullseye.
I know someone who had a DUI dropped by the Circuit Court and a letter from the Court saying it was dropped. The Secretary of States office (DMV in other places) said "We do not care what the Court does!"
Agreed
Hope you don't mind me alerting a few interested parties to your post and this thread.
no prob.
Welcome to the New World Order.
Few people know about this, and more need to.
Thank you for your post.
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.
Yeah, it's a crying shame we live in a country where the cops can't have whatever they want whenever they want it. Damned Constitution
If she has a physical handicap, the cops have to accomodate her. Test, but give a test she can take. Walking a line if one is a paraplegic is not possible. Neither was the Brethalizer for her.
I am certified as a technician and instructor on the Alco-sensor IV (St Louis, MO) and I can say without a doubt that a person with asthma would have NO TROUBLE providing a sample for an alcohol test. The only person who could'nt would be riding around with an oxygen tank in their lap (no mention in the article). The machine only collects a sample when a measured volume of air flows past the sensor. I have administered many tests to Asthma patients and they all passed the test without trouble. Sounds like this woman didn't want to take the test, and , yes, she could have requested a blood alcohol test...
I was wondering about this. How does refusing to comply with a breath test automatically mean that you've been drinking? Isn't it supposed to be "innocent until PROVEN guilty"? Not "guilty until you prove you're innocent".
Or, if she had actually been told that she was under arrest (which she probably wasn't), she could have refused to do or say anything until she had a chance to speak with her attorney and until her attorney was present.
Oops, I forgot, that only applies to other offenses like murder, manslaughter, rape, arson, robbery, extortion, etc., not suspicion of DWI.
I know you didn't post this question to me, but I have the answer, and it is important that you and others see it.
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