Legal Question in Criminal Law in Indiana

Driving while intoxicated...tests

I assume that since you were given a breath test at the scene of the stop that the officer used a portable test machine for the breath test. These machines have not been approved by the Department of Toxicology as required by the code. Normally, before scientific evidence can be introduced in evidence a foundation must be presented showing that the equipment was operating properly before and after the test. This is usually done by placing a known quanity of substance in the machine and testing it for accuracy prior to testing the subject. The code creates a fiction that the equipment is trustworthy and therefore admissible without laying a foundation if it has been tested and found to be operating properly within 180 days of the test. But before the code allows for its admission the equipment must be aprroved by the Department of Toxicology of the Board of Health. Portable tests have never been approved and so are not admissible under the code and because the procedure is not followed for conductiong a scientific test in the field, it is also not admissible otherwise. It is important to note that objections must be made at the proper time and if you don't make a proper objection timely, the objection is waived and the evidence will be admitted.

The officer is required to give you a warning substancially as follows (I did not look this up and I am doing this from memory): "I have reason to believe that you are driving under the influance of Intoxicating beverage or drugs and I am offering you a breathalizer test for the purpose of determining your level of intoxication. If you refuse to take the test your license will be suspended for a year because of the refusal alone."

The officer has the right to give multiple test in Indiana and give as many as he deems appropiate over a 3 hour period. This is not the kind of case where you should consider representing yourself. The defenses are technical and have to be made at the correct time. Also motions need to be filed to protect you from the effects of the refusal and again this is very technical and fact sensitive. Get a lawyer!