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The Indiana Supreme Court recently found that law enforcement officers are required to issue a second chemical breath test if an insufficient sample was produced by the first test, unless a “clear unwillingness to cooperate” was established.


In October 2015, Indiana State Police Trooper Joshua Graves pulled Keyaunna Hurley over, suspecting that she was intoxicated. After failing multiple field sobriety tests, Hurley agreed to submit to a chemical breath test at the police station. The results demonstrated an “insufficient sample,” despite the fact that Hurley blew into the testing device three times.


Even though Trooper Graves admitted that Ms. Hurley was cooperative throughout, she was not allowed the opportunity to blow three more times for the second test. Rather than allow Hurley a chance to blow for a second administered test, she was charged with refusing to submit to the test, resulting in her license being suspended for a year.


The Defendant argued that Trooper Graves did not follow the correct rules and regulations in administering the test and that insufficient evidence existed to support the position that she refused to submit to it. The Marion Superior Court upheld the decision by Trooper Graves and in June of 2016, the Indiana Court of Appeals affirmed that decision.


In December 2016, the Indiana Supreme Court was presented the case on a petition to transfer. Hurley’s attorney defended the position that Trooper Graves should have overseen a second chemical breath test prior to making the determination that Hurley was being intentionally uncooperative. The Indiana Supreme Court agreed with Hurley’s position and reversed the suspension of her driving privileges.


In writing for a unanimous Indiana Supreme Court, Justice Slaughter said the main inquiry was whether Title 260, section 2-4-2 of Indiana’s Administrative Code (“Breath-Test Rule”) required that Trooper Graves issue Hurley a second test prior to indicating a refusal. The Indiana Supreme Court decided that a second test was required in this scenario and that an officer can establish a lack of cooperation subsequent to the first test only if “the subject clearly manifests an unwillingness to take the test.”


Justice Slaughter stated that there was no evidence to support the belief that Hurley refused to take the breath test. In addition, the Court spoke to Indiana Court of Appeals precedent wherein they held that “a person does not refuse a chemical test if the officer failed to comply with the rules for conducting it.” Section 2-4-2(b)(5) of the Breath-Test Rule states, “If ‘Insufficient Sample’… is printed on the instrument report, perform an additional breath test … .” The Court ruled that this section required that Trooper Graves issue a second test following the first unsuccessful attempt.


However, Justice Slaughter stated that the “presumptive obligation” to administer a second test is not always a given. If an officer uses their discretion and determines that a person is being uncooperative, the rule does not compel said officer to issue a second breath test. With that said, there is nothing in the record which would indicate that Hurley did anything to present a “manifest unwillingness” to provide a working breath sample. Ultimately, Ms. Hurley’s driving privileges were restored and the suspension was vacated.

If you or a loved one has experienced a similar situation, please do not hesitate to contact DUI attorney  at Greg Spencer Law. Our dedicated team has the skills and experience to sift through the information, conduct the research, and present your side of the story.