Woman With Asthma Wins Court Ruling Over Breath Test

[The Straight Story]

Woman With Asthma Wins Court Ruling Over Breath Test

POSTED: 1:58 pm EST December 31, 2005

INDIANAPOLIS -- Not being able to blow hard enough for a breath test for alcohol is not the same as refusing to take the test, the Indiana Court of Appeals ruled.

The 3-1 ruling Friday reversed a Hancock Superior Court decision.

The case involved a woman who was charged with refusing a breath test under Indiana's implied consent law following an accident in which she was suspected of drunken driving.

According to court documents, a Hancock County sheriff's deputy administered field sobriety tests, including a portable breath test, to Meredith Upchurch after a December 2004 traffic accident. The deputy then asked her to go to the jail to take another breath test, and she complied.

http://www.theindychannel.com/news/5756970/detail.html

[bbinacan]

1. I'm glad she won. n/t

[Horse with no Name]

2. Wow.

Many folks with asthma would not be able to blow hard enough. Were they planning on taking all of these to jail as well?

[MercutioATC]

5. You don't really have to blow all that hard...

Unless she also has emphysema, my bet is that she intentionally blew softly, intending to fall back on the "athsma defense". You don't have to have the lungs of a track star to make an intoxilyzer register.

[Horse with no Name]

7. My guess is that you don't have asthma?

I do and as we speak--I couldn't blow hard enough to make it register.

[MercutioATC]

10. No, but I had respiratory problems as a child...and my son has athsma.

During an athsma attack, no, she probably couldn't have blown hard enough. Most of the time, however, it should have been no problem...it doesn't take THAT much air to make those things register.

[The Straight Story]

15. The stress level induced by the whole ordeal may have made it harder

for her (ie, with her breathing).

[MercutioATC]

16. That's true.

[bbinacan]

8. I got a DWI back in 1986 and

I remember I had to blow pretty damned hard to get a reading.

[MercutioATC]

11. In 1986? Possibly. Some departments were still using the old machines.

These days, though, I don't think many of those machines are still around. My point is that unless you have severe respiratory problems or are in the middle of an athsma attack, you should be able to get the machine to register.

[bbinacan]

12. Thanks. I was wondering

if newer machines required less effort.

[AwakeAtLast]

21. Ha, ha! You don't live in Indiana, do you!

It would not surprise me at all to learn that the equipment is old. However, I do get your point.

:hi: from Indiana!

[MercutioATC]

3. Silly Deputy...

I don't know about Indiana, but in Ohio law enforcement has the right to ask for a sample of either your breath, blood or urine for testing purposes. Everybody uses the breath option because it's quicker and cheaper but if the Deputy thought this woman was really over the limit, a blood sample could have been requested.

[SPKrazy]

20. Some states (Arkansas for one) only let you choose another test

after you have complied with the test the officer asks you to take, which is usually the breath test since it is quick and accurate, and cheap.

[sabbat hunter]

4. the bigger story should be

if she was DWI or not.

[bbinacan]

6. My guess is no

to DWI. If the cop thought so, he'd allowed a blood test. Just trying to make his bust.

[longship]

9. Innocent until proved guilty.

I'm not condoning driving while intoxicated, but if the police make a mistake, the perp walks. Those are the rules in an allegedly democratic nation.

[bbinacan]

13. Exactly! n/t

[pitohui]

14. similar happened to a friend, he asked them to take a blood test

instead they backed off and let him go because they didn't feel like dragging him to the station where the equipment lived

why not give the blood test if the accused is willing in a situation like this, it would clear up the matter quickly?

i can't take a deep breath or blow v. hard either, i have always assumed a blood test would be available at the police station if i were falsely accused

[OPERATIONMINDCRIME]

17. I'm Pretty Sure I Don't Believe Her

If her story is true than I am glad she won. I am conflicted though in the sense that I have probably 80% doubt that asthma or not she couldn't get the minimum breath necessary to blow into a machine that really doesn't require much effort at all.

Regardless of my trust in her story, I agree with the ruling because whether in reality or not she was guilty, the fact she technically had a breathing disorder is enough to create reasonable doubt, as I even have, though it is only 20% :)

[DELUSIONAL]

18. I have no idea what the hell you said

and frankly don't care.

[OPERATIONMINDCRIME]

19. Your Name Suits You Well I See LOL

It is written pretty simplistically. Not sure what would be difficult for you to understand.

And I get a kick out of your self irony: Declaring you don't care yet caring enough to respond :rofl: