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Is providing an insufficient sample considered a refusal?

A person does not refuse a chemical test if the police officer fails to comply with the rules for conducting it. Unless a person clearly manifests an unwillingness to submit a chemical test, Indiana law requires a police officer to administer a second test if the first test returns an "insufficient sample" message.

In Hurley v. State, the defendant blew three times into the certified breath test, but the machine printed a ticket stating “insufficient sample”. The officer determined that the defendant’s failure to provide a sufficient sample was a refusal, and did not offer the defendant a second test. But there was no evidence that the defendant ever manifested an unwillingness to submit to the breath test. The officer stated the defendant was completely cooperative throughout the process including submitting to a portable breath test and field sobriety tests at the traffic stop scene.

The Indiana Supreme Court held that the facts did not support the conclusion that the defendant refused the breath test and the officer should have offered a second test. The Court reversed the denial of the defendant’s motion to vacate the breath test refusal and remanded with instructions to direct the Bureau of Motor Vehicles to reinstate the defendant’s driving privileges.

If you find yourself having been arrested of operating while intoxicated, you should immediately hire an experienced criminal defense lawyer that you can trust such as Steven Knecht to help you fight the State because you have a lot at stake on the outcome.

Filed to Ask a Lawyer, Operating While Intoxicated

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