                                                                      FILED
                                                                 Jun 30 2016, 6:22 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Robert D. King, Jr.                                        Gregory F. Zoeller
      David R. Thompson                                          Attorney General of Indiana
      The Law Office of Robert D. King, Jr.,
      P.C.                                                       Jesse R. Drum
      Indianapolis, Indiana                                      Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Keyaunna Hurley,                                           June 30, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A05-1601-CR-108
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable David J. Certo,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 49G12-1510-CM-37573



      Bradford, Judge.



                                           Case Summary
[1]   On October 20, 2015, Appellant-Defendant Keyaunna Hurley was the subject

      of a traffic stop in Indianapolis. During this traffic stop, the officer at the scene


      Court of Appeals of Indiana | Opinion 49A05-1601-CR-108 | June 30, 2016                  Page 1 of 9
      became concerned that Hurley might have been driving under the influence.

      Hurley consented to a chemical breath test after she failed certain field sobriety

      tests. During administration of the certified breath test, Hurley failed to provide

      a sufficient sample. Based on his interactions with and observations of Hurley,

      the officer administering the test was of the opinion that the insufficient sample

      was the result of a lack of cooperation by Hurley. As a result, she was deemed

      to have refused the test. The officer subsequently obtained a warrant for and

      completed a blood draw.


[2]   Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged

      Hurley with two Class A misdemeanors and alleged that Hurley had committed

      a traffic infraction. Hurley requested review of the determination that she had

      refused the chemical breath test (the “refusal determination”). Following a

      hearing, the trial court upheld the refusal determination. Hurley now appeals

      from the denial of her verified petition for judicial finding of no refusal,

      claiming that the evidence was insufficient to sustain the trial court’s

      determination that she refused a breath test. We affirm.



                             Facts and Procedural History
[3]   On October 20, 2015, Indiana State Police Trooper Joshua Graves initiated a

      traffic stop after he observed Hurley commit a traffic violation near the

      intersection of 86th Street and Keystone Crossing in Indianapolis. After Hurley

      failed certain field sobriety tests, Trooper Graves asked Hurley to submit to a



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      chemical breath test.1 Hurley agreed, and was taken to a nearby police station

      for administration of the test.


[4]   Before administering the test, Trooper Graves explained to Hurley that she was

      “going to have to blow as hard as [she could] for as long as [she could]” and

      that if, after three attempts, she could not give a complete sample, she would be

      charged with a refusal to take the test. Tr. p. 26. Trooper Graves also

      demonstrated to Hurley what he meant by “blowing as hard as” she could. Tr.

      p. 27. Hurley blew into the machine when instructed to do so, but “did not

      blow a substantial [enough] amount to get a sufficient sample.” Tr. p. 16.

      Hurley repeated the process twice more, both times failing to provide a

      sufficient sample. After the third attempt, the machine printed a ticket showing

      the result of “Insufficient Sample.” Def. Ex. A. Based on his interactions with

      and observations of Hurley, Trooper Graves believed that Hurley “was not

      cooperating.” Tr. p. 27. Hurley was then charged with a refusal to complete

      the test due to a lack of cooperation. Trooper Graves subsequently obtained a

      warrant for and completed a blood draw.


[5]   On October 21, 2015, the State charged Hurley with Class A misdemeanor

      operating a vehicle while intoxicated endangering a person and Class A

      misdemeanor operating a vehicle with an alcohol concentration equivalent to

      .15 or more. The State also alleged that Hurley committed the traffic violation



      1
        Trooper Graves is a certified chemical test operator who has administered approximately
      thirty tests using the Intox EX/IR II machine.

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      of failure to signal for turn or lane change. On December 3, 2015, Hurley filed

      a Verified Motion for Refusal Hearing Pursuant To Indiana Code section 9-30-

      6-10. The trial court conducted a hearing on Hurley’s motion on December 21,

      2015, after which it found “for a refusal.” Appellant’s App. p. 6. This appeal

      follows.



                                  Discussion and Decision
[6]   On appeal, Hurley challenges the trial court’s denial of her petition for judicial

      review of the refusal determination, arguing that the evidence is insufficient to

      sustain the refusal determination. A trial court’s denial of an individual’s

      petition for judicial review of a refusal determination is a final appealable

      judgment. Ind. Code § 9-30-6-10(g); Upchurch v. State, 839 N.E.2d 1218, 1220

      (Ind. Ct. App. 2005). Our review of this judgment, however, is limited.

      Upchurch, 839 N.E.2d at 1220.


              We can only determine whether the evidence is sufficient as a
              matter of law to support the findings that: (1) the arresting officer
              had probable cause to believe that the driver was operating a
              vehicle while intoxicated and (2) the driver refused to submit to a
              chemical test offered by a law enforcement officer after being
              informed of the consequences of such refusal. In doing so, we
              will not weigh the evidence nor judge the credibility of the
              witnesses, and we will consider only the evidence favorable to
              the trial court’s decision.


      Vetor v. State, 688 N.E.2d 1327, 1328 (Ind. Ct. App. 1997) (citing Zakhi v. State,

      560 N.E.2d 683, 686 (Ind. Ct. App. 1990)). The petitioner bears the burden of


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      proving the allegations contained within their petition by a preponderance of

      the evidence. Ind. Code § 9-30-6-10(f); Upchurch, 839 N.E.2d at 1220.


[7]   Hurley makes two claims with respect to the sufficiency of the evidence to

      sustain the refusal determination. Hurley first claims that she could not be

      found to have refused the chemical breath test because Trooper Graves failed to

      follow the regulations for administration of the test. Hurley also claims that

      even assuming Trooper Graves properly followed the regulations, the evidence

      is nonetheless insufficient to sustain the refusal determination.


              A. Alleged Failure to Follow Proper Administration
                                  Procedures
[8]   In support of her claim that she could not be found to have refused the chemical

      breath test because Trooper Graves failed to follow the regulations for

      administration of the test, Hurley relies on our opinion in Upchurch. Hurley’s

      reliance on Upchurch, however, is unavailing.


[9]   In Upchurch, we considered whether an arresting officer failed to follow the

      regulation for administration of a chemical breath test that was in effect at the

      time. That regulation provided, in relevant part, as follows:

              (7) If the EVIDENCE TICKET displays one (1) of the following
              messages, the test is not valid; proceed as instructed:
                                                ....
              (B) If “SUBJECT SAMPLE INVALID” is printed on the
              EVIDENCE TICKET, return to step 1 (subdivision 1) and
              perform a second breath test. If “SUBJECT SAMPLE
              INVALID” is printed on the EVIDENCE TICKET of this

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               second breath test, obtain an alternate chemical test for ethanol or
               perform the breath test on another evidentiary breath test instrument.


       Upchurch, 839 N.E.2d at 1221 (citing 260 Ind. Admin. Code § 1.1-4-8)

       (emphasis and ellipsis in original). The results to the test administered by the

       arresting officer twice read “SUBJECT SAMPLE INVALID.” Id. at 1219-20.

       The arresting officer noted these results but failed to obtain an alternate

       chemical test or perform a breath test on a different test instrument. Id. at 1220.

       We concluded on appeal that because the arresting officer did not comply with

       the regulation’s requirements that he obtain an alternative chemical test or

       perform a test on a different test instrument, Upchurch could not be found to

       have refused a breath test. Id. at 1221. We therefore reversed the trial court’s

       denial of Upchurch’s petition for judicial finding of no refusal. Id. at 1221-22.


[10]   It is of note, however, that the section of the Administrative Code which

       applied in Upchurch is different than the section of the Administrative Code

       which applies here. Section 2-4-2(b)(5) of Title 260 of the Indiana

       Administrative Code, which applies to the instant matter, provides as follows:

               If “Insufficient Sample” or “Time Out” is printed on the
               instrument report, perform an additional breath test, beginning
               with STEP TWO and proceeding through STEP TWELVE. If
               “Insufficient Sample” or “Time Out” is printed on the instrument
               report after this additional breath test:
                      (A) obtain an alternate chemical test for ethanol;
                      (B) perform a breath test on another breath test
                      instrument; or
                      (C) if a numerical value for the subject’s breath
                      ethanol concentration is printed on any instrument

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                      report, check the instrument report for the correct
                      date and time and sign the instrument report where
                      indicated.
               If an “Insufficient Sample” or “Time Out” message is caused by
               the lack of cooperation of the subject, the breath test operator
               should record that the test was refused and, if a numerical value
               for the subject’s breath ethanol concentration is printed on any
               instrument report, check the instrument report for the correct
               date and time and sign the instrument report where indicated.


[11]   The record reveals that Trooper Graves did not obtain an alternate chemical

       test or perform a breath test on another breath test instrument after receiving the

       “Insufficient Sample” message. The record further reveals, however, that

       Trooper Graves believed that the “Insufficient Sample” message was caused by

       a lack of cooperation by Hurley. Hurley correctly asserts that Section 2-4-

       2(b)(5) of Title 260 of the Indiana Administrative Code indicates that an officer

       administrating a test should obtain an alternate chemical test for ethanol or

       perform a breath test on another breath test instrument if the words

       “Insufficient Sample” are printed on the instrument report. However, Hurley

       fails to recognize that Section 2-4-2(b)(5) of Title 260 of the Indiana

       Administrative Code further states that if an “Insufficient Sample” message is

       deemed to be caused by the lack of cooperation of the subject, “the breath test

       operator should record that the test was refused.” Given that the record

       establishes that Trooper Graves believed that the “Insufficient Sample” message

       was the result of a failure to cooperate by Hurley, we conclude that Trooper

       Graves’s decision to record that Hurley refused the test fell within the statutory



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       parameters set forth in Section 2-4-2(b)(5) of Title 260 of the Indiana

       Administrative Code.


                                  B. Sufficiency of the Evidence
[12]   During the hearing on Hurley’s motion, Trooper Graves testified that he was of

       the opinion that Hurley did not cooperate during his administration of the

       chemical breath test. Specifically, Trooper Graves testified that he explained to

       Hurley that she was “going to have to blow as hard as [she could] for as long as

       [she could]” and that if, after three attempts, she could not give a complete

       sample, she would be charged with a refusal to take the test. Tr. p. 26. Trooper

       Graves further testified that he demonstrated to Hurley what he meant by

       “blowing as hard as” she could. Tr. p. 27. Despite Trooper Graves’s

       instructions and demonstration, Hurley failed to give a complete sample.

       Judging Hurley’s demeanor and actions, Trooper Graves came to the opinion

       that Hurley “was not cooperating.” Tr. p. 27. Trooper Graves’s testimony

       presents sufficient evidence to sustain the refusal determination.


[13]   In arguing to the contrary, Hurley claims that the evidence is insufficient to

       sustain the refusal determination because she agreed to take the test, she

       submitted to the test, she cooperated with Trooper Graves’s instructions, and

       she was never told by Trooper Graves that she was not blowing hard enough or

       needed to blow harder. Hurley’s claim in this regard, however, is effectively an

       invitation for this court to reweigh the evidence, which we will not do. See

       Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Because we conclude that the


       Court of Appeals of Indiana | Opinion 49A05-1601-CR-108 | June 30, 2016      Page 8 of 9
       evidence is sufficient to sustain the refusal determination, we affirm the

       judgment of the trial court.


[14]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




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