The Indiana Supreme Court reversed an order suspending driving privileges for alleged non-cooperation with a breath test

A state-police trooper stopped Defendant for a traffic violation. During the stop, the trooper suspected Defendant was intoxicated, so he conducted several field sobriety tests, which Defendant failed. At the trooper’s request, Defendant agreed to take a chemical breath test at a nearby police station. During the first test, Defendant did not blow hard enough, prompting the machine to print an “insufficient sample” warning. The trooper concluded Defendant had refused to take the test, resulting in the suspension of her driving privileges. On judicial review, Defendant challenged the conclusion that she refused the test, claiming the trooper did not follow the required procedures when administering it. She alleges these procedures, promulgated by the Indiana State Department of Toxicology, required the trooper to offer her a second test. Concluding the procedures required a second test on this record, we grant transfer and reverse.

A second opportunity to blow is legally required

Unless a subject clearly manifests an unwillingness to submit to a chemical breath test, Title 260, Section 2-4-2 of the Indiana Administrative Code requires a law-enforcement officer to administer a second test if the first returns an “insufficient sample” message. There is no factual basis for the trooper’s determination that Hurley refused the chemical test. Because the trooper did not offer Hurley a second test, we reverse the judgment below and remand with instructions to direct the bureau of motor vehicles to vacate its suspension of Hurley’s license and reinstate her driving privileges.