Indiana Law Allows you to Take Another Breath Test for Alcohol if the First Results in Insufficient Sample

By Richard Mann, Richard A. Mann, P.C., Indianapolis

On May 31, 2017, the Indiana Supreme Court reversed the suspension of a woman’s driver’s license for allegedly refusing to take a breath test.  A state trooper had asked the driver to take a breath test for alcohol after she was stopped.  The trooper believed she had failed the field sobriety tests and she agreed to take a breath test.  After blowing in 3 times the machine continued to show “insufficient sample.”  Even though the driver had been cooperative, the trooper declared she was refusing to take a breath test.  At court the trial court found she refused and that decision was upheld by the Indiana Court of Appeals. The Supreme Court in Hurley v. State of Indiana in a unanimous decision reversed the lower courts and held that the trooper had to follow the rules requiring other options including offering for her to test again after the insufficient sample. The court stated, “The trooper was required to administer a second test on this record because Hurley did not clearly manifest an unwillingness to take it.”  The court went on to point out that this is not the case where a person puffs their cheeks and pretends to blow, which could result in a valid finding of refusal.

Under Indiana law any person driving a motor vehicle on the roads has impliedly consented to take a test for drugs or alcohol in their system if a police officer has probable cause to believe they are currently operating a vehicle under the influence of alcohol or other drugs pursuant to I.C. 9-30-6-9.  If you refuse to take the test your driver’s license may be suspended for a period of one (1) year in addition to any suspension you receive if convicted of the underlying operating under the influence charge.


Richard A. Mann has been practicing Family Law for more than 37 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

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