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Woman With Asthma Wins Court Ruling Over Breath Test
The Indy Channel/AP ^ | 12-31-05

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.


TOPICS: Crime/Corruption; Culture/Society; US: Indiana
KEYWORDS: asthma; dui; indiana
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To: elkfersupper

If it's Driving While Impaired, it won't help you. They only have to prove you were impaired. Physical tests will prove that.


41 posted on 01/01/2006 6:05:00 PM PST by AppyPappy (If you aren't part of the solution, there is good money to be made prolonging the problem.)
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To: elkfersupper

While I am trained to administer the test, I have mixed feelings about the legal aspects of the situation. It is an inconvenience to do the test (takes about 5 minutes if you are clean), but I guess your feelings would change if the little old lady in the case had just taken your wife, mother, or children out with her car because she was plastered. The article did say that the test was requested after an accident, but no mention about injuries. Perspective is different if she was randomly selected off the street to blow in the machine..


42 posted on 01/01/2006 6:05:11 PM PST by contrarian (Contrarian....well, I just have my own way of thinkin..)
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To: digger48
Why couldn't they have a blood test ordered

I don't think a blood test can be given without permission. Seeing as how she allowed herself to be given 2 breathalyzers which she passed, why press her luck.......

I'm filing this info for the time I might be pulled over by the alco-gestapo..........

43 posted on 01/01/2006 6:10:35 PM PST by Hot Tabasco (If I get socks again this year from my sis and bro-in-law I'm going to be really mad....)
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To: contrarian

Can the officer ask her to have blood drawn? If she refuses to get stuck because of a no-read result from a breathalyzer, would that be a implied-consent?


44 posted on 01/01/2006 6:13:38 PM PST by digger48
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To: The Worthless Miracle

Thank you for this meaningful insight.
It's no wonder more and more people despise the current police state. They have all the rights to rule as they see fit without reference to law.


45 posted on 01/01/2006 6:19:24 PM PST by Spirited
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To: elkfersupper
That is freakin' depressing. So basically, the Constitution is more of a "suggestion" than a "guideline" to our courts and law-makers...

I beginning to see the appeal of Anarchy.

46 posted on 01/01/2006 6:22:58 PM PST by Marie (Support the Troops. Slap a hippy.)
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To: Marie
So basically, the Constitution is more of a "suggestion" than a "guideline" to our courts and law-makers...

More or less.

Especially with this particular witch hunt at this particular time.

Other targets will follow.

One more link. Pass the word.

"The DUI Exception to the Constitution"

47 posted on 01/01/2006 6:43:23 PM PST by elkfersupper
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To: AppyPappy
They only have to prove you were impaired. Physical tests will prove that.

Unfortunately, mostly subjective now.

The cop on the side of the road holds all the power in these instances, mainly due to the "disappearing" nature of the evidence.

We all better hope that something objective comes along pretty quickly.

48 posted on 01/01/2006 6:47:10 PM PST by elkfersupper
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To: contrarian

I agree with all of that.


49 posted on 01/01/2006 6:48:06 PM PST by elkfersupper
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To: elkfersupper

The best thing to do is to ask to speak to an attorney right off the bat, before the field tests even start.


50 posted on 01/01/2006 6:56:05 PM PST by yawningotter
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To: yawningotter
The best thing to do is to ask to speak to an attorney right off the bat, before the field tests even start.

Agreed. However, doing that is somewhat of a challenge, as the LEO will most likely tell you that you don't have that right, because you are only being detained, not under arrest yet.

In fact, it may be best to refuse the field sobriety tests entirely. Some would argue that their only purpose is to provide evidence to convict you if you are below the legal presumptive BAC or BrAC level.

51 posted on 01/01/2006 7:00:58 PM PST by elkfersupper
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To: elkfersupper

I don't have any specifics yet, but have been told that a number of judges here in Virginia have thrown some DUI cases out recently, as unconstitutional!

I'll try to find some specifics.

It is really all about money....just follow the dollars. Personally, if I am not swerving on the road or indicating that I am impaired....I shouldn't be pulled over. These check points are definitely unconstutional....but there again, it's big bucks to local governments.


52 posted on 01/01/2006 7:10:36 PM PST by TheLion
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To: elkfersupper

I found it. About the presumption of innocence. Suprised this hasn't been done before.


Maverick N.Va. Judge Tosses Out DWI Cases That Presume Guilt

A Fairfax County judge who believes Virginia's drunken driving laws are unconstitutional has begun dismissing cases, including five DWI cases in a week, and has threatened to throw a veteran prosecutor in jail for arguing with him.

Judge Ian M. O'Flaherty made it known in July that he felt Virginia's DWI law unfairly deprived defendants of the presumption of innocence if breath tests showed that they had a blood alcohol content of .08 or higher, levels at which people are presumed to be intoxicated.

----snip----

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/26/AR2005102602572.html


53 posted on 01/01/2006 7:19:42 PM PST by TheLion
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To: TheLion
I'll try to find some specifics.

I can help.

Incidentally, this guy is under vicious attack.

Va. Judge Disputes Constitutionality Of DUI Law

54 posted on 01/01/2006 7:21:55 PM PST by elkfersupper
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To: TheLion
Thanks for posting that. Sorry I jumped the gun.

Your link is better-more detail.

55 posted on 01/01/2006 7:23:48 PM PST by elkfersupper
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To: elkfersupper

Yep....same guy as in post #53.


56 posted on 01/01/2006 7:25:00 PM PST by TheLion
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To: elkfersupper

No Problem....I like this guy O'Flaherty!

"O'Flaherty said that he was not disregarding blood alcohol results and that he allowed them as evidence when they were properly obtained. But he said alcohol affects people in different ways, so presuming someone with a .08 blood alcohol content is drunk might not be correct."


57 posted on 01/01/2006 7:30:16 PM PST by TheLion
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To: digger48

sorry to take so long to get back, was surfing and got distracted. All my training is in relation to DOT testing which is a whole different ball game. A refusal to take the test is considered a positive test. With DOT they can not REQUIRE a blood test. they get 3 attempts to do a breath test. If they fail then they have to have a letter from the doctor to PROVE that they have diminished lung capacity (tests and physical exam) in order to prove that they flunked the test due to physical reasons. If they blow positive for a screening test they then move to the next level which requires them to be observed for 10 minutes with them not allowed to put anything in their mouth, no chewing gum, liquids to be consumed, and may not even touch their mouth. If any of those happen---- 10 minutes start again. 3 failed attempts = flunked test. If a positive test is obtained, then the machine has to have a calibration test which is documented and submitted with the positive test result to show the machine is in calibration. Also have to have regular calibration results availible as well as any maintenance work on machine to make the test results valid...ALL THAT SAID, this is not relevant due to the fact that this woman does not fall under DOT testing since she is a "civilian".


58 posted on 01/01/2006 7:40:56 PM PST by contrarian (Contrarian....well, I just have my own way of thinkin..)
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To: contrarian

"Sounds like this woman didn't want to take the test, and , yes, she could have requested a blood alcohol test..."

Why should she REQUEST a blood test? Do we require our citizens to prove their innocense?


59 posted on 01/01/2006 7:44:04 PM PST by CSM
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To: generally
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.

You're the first person I saw who posted THE defining question.
60 posted on 01/01/2006 7:49:23 PM PST by beezdotcom
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