Use of breath tests focus of DUI case challenge


An Indianapolis attorney says the state has failed to update its rules for validating breath-test instruments and certifying police officers who administer the tests, putting hundreds of drunken-driving cases that hinge on the test results in jeopardy.

Attorney John Tompkins contends breath tests administered to drunken-driving suspects since Jan. 1 aren't valid because the Indiana Department of Toxicology failed to update its procedures as part of 2011 legislation spurred by concerns about management and oversight within the department.

The legislation gave the department until July 1, 2012, to make the changes, but Tompkins says that didn't happen.

As a result, the department's authority to certify breath-test machines and their use by law enforcement is no longer valid, he says.

"Basically, we're saying that (certification) work was conducted by an agency that no longer has the authority to do it," Tompkins told The Indianapolis Star.

Tompkins has filed legal motions in about a dozen Central Indiana court cases. If the challenges succeed, it would mean every machine in the state has been out of compliance since at least the beginning of the year -- and some could have been out of compliance since early July.

"I believe this could open the proverbial can of worms," said Frances L. Watson, clinical professor of law at the Robert H. McKinney School of Law in Indianapolis. "There could be a huge impact."

Teri Kendrick, the toxicology department's general counsel, said she couldn't comment on specific cases but that, in general, the department disagrees with Tompkins' argument.

"Obviously," she said, "our position is contrary to that."

The Marion County prosecutor's office is working on a response in a case set for a hearing March 20, said spokeswoman Peg McLeish.

Tompkins' challenge, if successful, would be the latest blow to the department, which was plagued by long delays in providing test results to police and prosecutors and a lack of standardized training and operating procedures.

An Indianapolis Star investigation found that 10 percent of the positive marijuana tests and nearly one-third of the positive cocaine tests from 2007 to 2009 didn't comply with accepted scientific standards.

Retesting of 800 samples with questionable results showed that nearly 30 percent had no traces of the marijuana and cocaine initially reported.

Tompkins said his challenges are meant only to focus on the use of breath-test machine results and don't undermine efforts to stop or prosecute alleged drunken drivers.

"They can still go to trial with other evidence," he said. "What it is going to do is force (law enforcement) to do blood tests on all suspects until the department gets its house in order."

Ryan W. Scott, associate professor of law at Indiana University Maurer School of Law in Bloomington, questions whether the challenges will go anywhere.

"I think a court would work awfully hard to interpret the statute in a way that would avoid that result," he said.

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