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.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

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Elder Law Mediation – June 28

• Differences Between Elder Law and Other Types of Mediation

• Pre-Mediation Intake Screening and Who Should Be present at Mediation

• Ethics of Elder Law Mediation

• Understanding The Red Flags of Elder Abuse – Mental and Physical Effects of Aging That Mediators Need to Know

Samuel L. Bolinger, Chair
Samuel L. Bolinger & Associates, Fort Wayne

Charles M. Kidd
Indiana Supreme Court Disciplinary Commission, Indianapolis

Dr. Mary Guerriero Austrom, PhD
Indiana University Department of Psychiatry, Indianapolis

3 CLE / 3 CME / 1 E – Wednesday, June 28; 9:00 A.M. – 12:15 P.M.

– ICLEF Conference Facility, Indianapolis

– From your home or office computer
Please Note: CME is Not Available via Individual Webcasts

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A Matter of Style

Marty Latz will be presenting twice this year at the ICLEF Conference Facility!
June 7 – How to Say “NO” & Preserve the Relationship, 6 CLE / 6 CME / 1 E
December 1 – Gain the Edge! Negotiating to Get What you Want, 6 CLE / 6 CME / 1 E


Notes on Negotiation
By Marty Latz, Latz Negotiation Institute

‘Stan’ was a jerk. Totally self-absorbed with a massive ego, he was super aggressive and always breaking the rules. Reputation-wise, most people couldn’t stand him. Brilliant at software, though, he had developed a superb product.

The deal – based on an objective analysis of your financial and other interests – appeared to be excellent. But Stan would have a significant role going forward. So how you interacted and negotiated would be extremely significant.

Should you buy control of Stan’s company?

The biggest red flag, of course, is Stan’s personality style.  What does that mean?

Here are five qualities to evaluate in assessing your counterpart’s negotiation style. Developed by Marquette Law School Prof. Andrea Kupfer Schneider in “Teaching a New Negotiation Skills Paradigm” (Washington Univ. Journal of Law and Policy, 2012), I have also added my own thoughts here.

Keep in mind the following, too:

  • Each quality exists on a spectrum. And we all exhibit elements of each, some more than others.
  • These reflect tendencies, not immutable characteristics. Each can be improved upon with self-awareness, training and practice.
  • These are styles – not strategies. They relate less to what you do and more with how you do it. Of course, these overlap.
  • Individuals modify how they implement these styles between negotiations and even within negotiations.

1.    Assertiveness
Assertiveness relates to an individual’s aggressiveness in their negotiation interactions. How forcefully and competitively do they engage? Conversely, how much do they shy away from the conflict that inevitably exists sometimes?

Effective negotiators exhibit strong assertiveness traits – but know when, where and how to modify and modulate them.  Too much assertiveness can result in an overly adversarial environment that can be counterproductive. Too little assertiveness can leave unrealized value on the table.
I once worked with a super assertive lawyer. An excellent litigator, his negotiation style and skills were underdeveloped – everything was a fight. Finding any common ground was extremely difficult.

2.    Empathy
Schneider writes “being empathetic in a negotiation [requires] a complex mix of skills – a willingness to hear the other side, open-mindedness or curiosity, good questioning and excellent listening, among others.” Emotionally intelligent individuals score high on empathy.
Developing this skill means becoming a more active and deep listener and questioner. Highly empathetic negotiators also fundamentally believe their counterparts can help them get what they want. Empathy is especially crucial in negotiations involving future relationships between the parties.

3.    Flexibility
Flexibility sounds good. But too much flexibility can be a liability, reflecting a willingness to change too often without justification.  Too little flexibility – stubbornness – can also be problematic.
Schneider notes that “[talented] negotiators work to find a variety of ways to get the job done both in their strategic choices as well as more flexible outcomes. Being flexible in negotiation allows a stylistic move from simple compromising to more sophisticated integrative solutions. It also helps to prevent stalemate.”

Being open to creative options you may not initially consider is another element of flexibility. Brainstorming, sometimes with your counterpart, often brings out this quality in negotiators.

4.    Social Intuition
Schneider’s research finds that these social skills translate to negotiation effectiveness: personable, rational, perceptive, self-controlled, sociable, helpful, and smooth. Other research cited by Schneider suggests that how we interact and present to others and the importance of being nice are traits associated with successful individuals.

Appropriate tone and positive moods also translate to making negotiators more creative and effective. The opposite, too. Don’t underestimate the power of sociability and rapport and relationship-building in negotiations.

5.    Ethicality
Your reputation for trustworthiness and a willingness to follow ethical principles correlate to your negotiation effectiveness, according to Schneider and others.

Of course, trustworthiness in negotiations does not mean you simply lay all your cards on the table. Some misdirection is expected and warranted in many negotiations.

If my client is desperate to sell his business, I would not share this with a buyer.

Remember, though, your reputation derives not from your belief in your trustworthiness and ethics – but how your counterpart describes you after the negotiation.

So what about Stan? Here’s my style rating of him: high assertiveness, super low empathy, medium flexibility, low social intuition, problematic ethicality. Too many red flags. Walk away.

Latz’s Lesson:  Research and evaluate your counterparts’ personality style. A good or bad style fit can make or break your deal.


Marty Latz will be presenting twice this year at the ICLEF Conference Facility!
June 7 – How to Say “NO” & Preserve the Relationship, 6 CLE / 6 CME / 1 E
December 1 – Gain the Edge! Negotiating to Get What you Want, 6 CLE / 6 CME / 1 E


Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Trial Court Erred in Imputing Both Parties Incomes

Family Law Case Review

Case: Karen B. Salser v. Gregg A. Salser
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred when it imputed Mother to full-time employment as a nurse practitioner, even though her history for the previous five years had been to work about half-time and Mother’s testimony was that no additional hours were available through her current employer.

HELD: Trial court erred when it failed to include Father’s irregular bonus income, which has the potential to equal 28% of his annual base income, in any part of the child support calculation.

HELD: Trial court erred when it ordered the parents to contribute equally to post-secondary educational expenses. Because the equal division was premised upon the erroneous imputation of Mother to full-time employment, then the post-secondary educational expense division was also error.

The parties married in 1993 and filed for dissolution in 2014. At the time of the dissolution proceedings, the parties had one child in college and one in middle school.

Mother was a nurse practitioner who worked part-time and hourly for a physician. For 2012 through 2015, her income varied from $39,946 to $49,786 per year.

Father was a pharmaceutical rep. He earned a base salary of $95,000 per year, but with bonus opportunities of up to another $27,000 per year.

Following the final hearing, the trial court issued its Decree, which included the following pertinent provisions:

1.     The child support order was based upon imputing Mother to full-time employment at her current hourly rate.

2.     The child support order disregarded Father’s potential bonus income altogether.

3.     Because Mother’s imputed income level was comparable to Father’s income level, the trial court’s post-secondary educational expense order provided that the son should pay 34% of his college expenses, with the remainder divided equally between Mother and Father.

Mother appealed.

The Court of Appeals agreed with Mother that imputation was error. The Court relied primarily upon part-time employment by Mother having become established practice during the marriage, coupled with the evidence that no additional hours were available through Mother’s current employer. There was also no evidence that Mother was attempting to reduce her income to avoid a child support obligation.

The Court also agreed with Mother that it was improper for the trial court to completely disregarding Father’s potential bonus income. The Court specifically noted the percentage calculation set forth in the Guidelines that can be developed to provide that a specific fraction of each bonus payment is paid as child support.

Finally, because Mother was improperly imputed to full-time earning potential, the post-secondary educational expense order — which was derived in part from Mother’s imputed income level — was also erroneous.

The case was remanded for a recalculation of child support and the post-secondary educational expense order, consistent with the Court’s opinion.

Judge Bradford dissented, noting the great deference that the Guidelines and case law afford to trial courts, not just in family law matters generally, but in deciding whether to impute income and how to handle bonus income in particular. “Mother, a licensed nurse practitioner, has the ability to work full-time but simply chooses not to, numerous opportunities are available in Mother’s line of work within the community, and Mother would make the same hourly rate ($50 per hour) or higher if she were to accept a full time position.” 

To view the text of this opinion in its entirety, click here: Karen B. Salser v. Gregg A. Salser


James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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