Keyaunna Hurley v. State of Indiana , 2016 Ind. App. LEXIS 213 ( 2016 )

FILED
Jun 30 2016, 6:22 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert D. King, Jr. Gregory F. Zoeller
David R. Thompson Attorney General of Indiana
The Law Office of Robert D. King, Jr.,
P.C. Jesse R. Drum
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keyaunna Hurley, June 30, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1601-CR-108
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David J. Certo,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G12-1510-CM-37573
Bradford, Judge.
Case Summary
[1] On October 20, 2015, Appellant-Defendant Keyaunna Hurley was the subject
of a traffic stop in Indianapolis. During this traffic stop, the officer at the scene
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became concerned that Hurley might have been driving under the influence.
Hurley consented to a chemical breath test after she failed certain field sobriety
tests. During administration of the certified breath test, Hurley failed to provide
a sufficient sample. Based on his interactions with and observations of Hurley,
the officer administering the test was of the opinion that the insufficient sample
was the result of a lack of cooperation by Hurley. As a result, she was deemed
to have refused the test. The officer subsequently obtained a warrant for and
completed a blood draw.
[2] Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged
Hurley with two Class A misdemeanors and alleged that Hurley had committed
a traffic infraction. Hurley requested review of the determination that she had
refused the chemical breath test (the “refusal determination”). Following a
hearing, the trial court upheld the refusal determination. Hurley now appeals
from the denial of her verified petition for judicial finding of no refusal,
claiming that the evidence was insufficient to sustain the trial court’s
determination that she refused a breath test. We affirm.
Facts and Procedural History
[3] On October 20, 2015, Indiana State Police Trooper Joshua Graves initiated a
traffic stop after he observed Hurley commit a traffic violation near the
intersection of 86th Street and Keystone Crossing in Indianapolis. After Hurley
failed certain field sobriety tests, Trooper Graves asked Hurley to submit to a
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chemical breath test.1 Hurley agreed, and was taken to a nearby police station
for administration of the test.
[4] Before administering the test, Trooper Graves explained to Hurley that she was
“going to have to blow as hard as [she could] for as long as [she could]” and
that if, after three attempts, she could not give a complete sample, she would be
charged with a refusal to take the test. Tr. p. 26. Trooper Graves also
demonstrated to Hurley what he meant by “blowing as hard as” she could. Tr.
p. 27. Hurley blew into the machine when instructed to do so, but “did not
blow a substantial [enough] amount to get a sufficient sample.” Tr. p. 16.
Hurley repeated the process twice more, both times failing to provide a
sufficient sample. After the third attempt, the machine printed a ticket showing
the result of “Insufficient Sample.” Def. Ex. A. Based on his interactions with
and observations of Hurley, Trooper Graves believed that Hurley “was not
cooperating.” Tr. p. 27. Hurley was then charged with a refusal to complete
the test due to a lack of cooperation. Trooper Graves subsequently obtained a
warrant for and completed a blood draw.
[5] On October 21, 2015, the State charged Hurley with Class A misdemeanor
operating a vehicle while intoxicated endangering a person and Class A
misdemeanor operating a vehicle with an alcohol concentration equivalent to
.15 or more. The State also alleged that Hurley committed the traffic violation
1
Trooper Graves is a certified chemical test operator who has administered approximately
thirty tests using the Intox EX/IR II machine.
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of failure to signal for turn or lane change. On December 3, 2015, Hurley filed
a Verified Motion for Refusal Hearing Pursuant To Indiana Code section 9-30-
6-10. The trial court conducted a hearing on Hurley’s motion on December 21,
2015, after which it found “for a refusal.” Appellant’s App. p. 6. This appeal
follows.
Discussion and Decision
[6] On appeal, Hurley challenges the trial court’s denial of her petition for judicial
review of the refusal determination, arguing that the evidence is insufficient to
sustain the refusal determination. A trial court’s denial of an individual’s
petition for judicial review of a refusal determination is a final appealable
judgment. Ind. Code § 9-30-6-10(g); Upchurch v. State, 839 N.E.2d 1218, 1220
(Ind. Ct. App. 2005). Our review of this judgment, however, is limited.
Upchurch, 839 N.E.2d at 1220.
We can only determine whether the evidence is sufficient as a
matter of law to support the findings that: (1) the arresting officer
had probable cause to believe that the driver was operating a
vehicle while intoxicated and (2) the driver refused to submit to a
chemical test offered by a law enforcement officer after being
informed of the consequences of such refusal. In doing so, we
will not weigh the evidence nor judge the credibility of the
witnesses, and we will consider only the evidence favorable to
the trial court’s decision.
Vetor v. State, 688 N.E.2d 1327, 1328 (Ind. Ct. App. 1997) (citing Zakhi v. State,
560 N.E.2d 683, 686 (Ind. Ct. App. 1990)). The petitioner bears the burden of
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proving the allegations contained within their petition by a preponderance of
the evidence. Ind. Code § 9-30-6-10(f); Upchurch, 839 N.E.2d at 1220.
[7] Hurley makes two claims with respect to the sufficiency of the evidence to
sustain the refusal determination. Hurley first claims that she could not be
found to have refused the chemical breath test because Trooper Graves failed to
follow the regulations for administration of the test. Hurley also claims that
even assuming Trooper Graves properly followed the regulations, the evidence
is nonetheless insufficient to sustain the refusal determination.
A. Alleged Failure to Follow Proper Administration
Procedures
[8] In support of her claim that she could not be found to have refused the chemical
breath test because Trooper Graves failed to follow the regulations for
administration of the test, Hurley relies on our opinion in Upchurch. Hurley’s
reliance on Upchurch, however, is unavailing.
[9] In Upchurch, we considered whether an arresting officer failed to follow the
regulation for administration of a chemical breath test that was in effect at the
time. That regulation provided, in relevant part, as follows:
(7) If the EVIDENCE TICKET displays one (1) of the following
messages, the test is not valid; proceed as instructed:
....
(B) If “SUBJECT SAMPLE INVALID” is printed on the
EVIDENCE TICKET, return to step 1 (subdivision 1) and
perform a second breath test. If “SUBJECT SAMPLE
INVALID” is printed on the EVIDENCE TICKET of this
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second breath test, obtain an alternate chemical test for ethanol or
perform the breath test on another evidentiary breath test instrument.
Upchurch, 839 N.E.2d at 1221 (citing 260 Ind. Admin. Code § 1.1-4-8)
(emphasis and ellipsis in original). The results to the test administered by the
arresting officer twice read “SUBJECT SAMPLE INVALID.” Id. at 1219-20.
The arresting officer noted these results but failed to obtain an alternate
chemical test or perform a breath test on a different test instrument. Id. at 1220.
We concluded on appeal that because the arresting officer did not comply with
the regulation’s requirements that he obtain an alternative chemical test or
perform a test on a different test instrument, Upchurch could not be found to
have refused a breath test. Id. at 1221. We therefore reversed the trial court’s
denial of Upchurch’s petition for judicial finding of no refusal. Id. at 1221-22.
[10] It is of note, however, that the section of the Administrative Code which
applied in Upchurch is different than the section of the Administrative Code
which applies here. Section 2-4-2(b)(5) of Title 260 of the Indiana
Administrative Code, which applies to the instant matter, provides as follows:
If “Insufficient Sample” or “Time Out” is printed on the
instrument report, perform an additional breath test, beginning
with STEP TWO and proceeding through STEP TWELVE. If
“Insufficient Sample” or “Time Out” is printed on the instrument
report after this additional breath test:
(A) obtain an alternate chemical test for ethanol;
(B) perform a breath test on another breath test
instrument; or
(C) if a numerical value for the subject’s breath
ethanol concentration is printed on any instrument
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report, check the instrument report for the correct
date and time and sign the instrument report where
indicated.
If an “Insufficient Sample” or “Time Out” message is caused by
the lack of cooperation of the subject, the breath test operator
should record that the test was refused and, if a numerical value
for the subject’s breath ethanol concentration is printed on any
instrument report, check the instrument report for the correct
date and time and sign the instrument report where indicated.
[11] The record reveals that Trooper Graves did not obtain an alternate chemical
test or perform a breath test on another breath test instrument after receiving the
“Insufficient Sample” message. The record further reveals, however, that
Trooper Graves believed that the “Insufficient Sample” message was caused by
a lack of cooperation by Hurley. Hurley correctly asserts that Section 2-4-
2(b)(5) of Title 260 of the Indiana Administrative Code indicates that an officer
administrating a test should obtain an alternate chemical test for ethanol or
perform a breath test on another breath test instrument if the words
“Insufficient Sample” are printed on the instrument report. However, Hurley
fails to recognize that Section 2-4-2(b)(5) of Title 260 of the Indiana
Administrative Code further states that if an “Insufficient Sample” message is
deemed to be caused by the lack of cooperation of the subject, “the breath test
operator should record that the test was refused.” Given that the record
establishes that Trooper Graves believed that the “Insufficient Sample” message
was the result of a failure to cooperate by Hurley, we conclude that Trooper
Graves’s decision to record that Hurley refused the test fell within the statutory
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parameters set forth in Section 2-4-2(b)(5) of Title 260 of the Indiana
Administrative Code.
B. Sufficiency of the Evidence
[12] During the hearing on Hurley’s motion, Trooper Graves testified that he was of
the opinion that Hurley did not cooperate during his administration of the
chemical breath test. Specifically, Trooper Graves testified that he explained to
Hurley that she was “going to have to blow as hard as [she could] for as long as
[she could]” and that if, after three attempts, she could not give a complete
sample, she would be charged with a refusal to take the test. Tr. p. 26. Trooper
Graves further testified that he demonstrated to Hurley what he meant by
“blowing as hard as” she could. Tr. p. 27. Despite Trooper Graves’s
instructions and demonstration, Hurley failed to give a complete sample.
Judging Hurley’s demeanor and actions, Trooper Graves came to the opinion
that Hurley “was not cooperating.” Tr. p. 27. Trooper Graves’s testimony
presents sufficient evidence to sustain the refusal determination.
[13] In arguing to the contrary, Hurley claims that the evidence is insufficient to
sustain the refusal determination because she agreed to take the test, she
submitted to the test, she cooperated with Trooper Graves’s instructions, and
she was never told by Trooper Graves that she was not blowing hard enough or
needed to blow harder. Hurley’s claim in this regard, however, is effectively an
invitation for this court to reweigh the evidence, which we will not do. See
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Because we conclude that the
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evidence is sufficient to sustain the refusal determination, we affirm the
judgment of the trial court.
[14] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
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