COA: Failure to give breath test sample was refusal to take test

The Indiana Court of Appeals affirmed a woman refused a chemical breath test, noting the officer giving the test followed all the proper procedures and was within his rights to determine she refused the test after she failed to give a valid sample three times.

Keyaunna Hurley was pulled over after Indiana State trooper Joshua Graves observed her commit a traffic violation. She failed some field sobriety tests, after which Graves asked Hurley to submit to a chemical breath test. However, when Graves tried to give Hurley the test, Hurley could not produce a valid sample three times.

Graves had explained to Hurley before the test began that if she could not give a valid test, it would be counted as refusing the test, and believed she was not cooperating. Graves obtained a warrant for and completed a blood draw.

Hurley was charged with Class A misdemeanors operating a vehicle while intoxicated endangering a person and operating a vehicle with an alcohol concentration equivalent of 0.15 or more. Hurley sought review of the determination she had refused the test, on which the trial court upheld the decision. Hurley appealed.

Hurley claimed Graves did not follow proper procedures for administration of the test, and the evidence was not sufficient to sustain the refusal determination.

The Court of Appeals ruled section 2-4-2(b)(5) of Title 260 of the Indiana Administrative Code says if an officer determines an insufficient sample in a breath test is caused by lack of cooperation, the officer should record the test was refused, as Graves did in this case.

The COA also ruled Hurley’s insufficiency of the evidence claim was essentially an invitation to reweigh evidence, which it would not do.

The case is Keyaunna Hurley v. State of Indiana, 49A05-1601-CR-108.

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