Thursday, March 13, 2014
Ind. Decisions - Use of breath tests as evidence under challenge
La Porte County officials are still allowed to admit breath tests as evidence in cases of drunken driving and other crimes, at least that's according to a recent ruling by the Indiana Court of Appeals.
On Feb. 18, the court ruled in favor of the judgement of La Porte Superior 3 Judge Jennifer Koethe, upholding the county's procedures for certifying both the breath test machines and those who operate them. Koethe made her ruling on May 14, 2013.
In March of that year, Attorney Scott Pejic filed motions on behalf of client Tanner Piotrowski challenging these practices because the state of Indiana failed to update an administrative code that applies to the certification of both the machines on which the breath tests are administered and those officers who conduct the tests.
The agency that certifies the results changed in July of 2011. Prior to that date, the Indiana University School of Medicine ran the toxicology department for the state. On that date, state legislation established the State Department of Toxicology.
A 12-month transition period defined by statute expired in July of 2012 and new rules have not yet been adopted.
In a previous story, Pejic said this oversight makes all certifications issued after this date invalid. The administrative code requires machines to be tested and re-certified every 180 days. Pejic's motion applied to at least three testing machines in La Porte County, including one in Michigan City.
But the court did not agree.
"Although the legislature transferred rulemaking authority to the state," said Judge Elaine Brown in the ruling, "it did not specifically require the state to promulgate a new set of rules regarding breath testing and gave the state discretion to rely upon the rules previously in existence."
La Porte County Prosecuting Attorney Bob Szilagyi said if the ruling had not been upheld, it would have meant his prosecutors couldn't use breath tests as evidence. Juries would have to decide intoxication cases based on witness testimony and observations by officers. He noted that jurors usually want to see the breath test results. He said attorneys from across the state have been filing similar motions.
When asked about the ruling, Pejic said he and his client plan to seek further appellate review, which may involve a transfer to the Indiana Supreme Court.
Posted by Marcia Oddi on March 13, 2014 10:06 AM
Posted to Ind. App.Ct. Decisions