The Marc Lopez Law Firm recently persuaded the Indiana Court of Appeals to reverse a man’s DUI / OVWI conviction. All it took was demonstrating to a three-judge panel that the State had found the man guilty based on an improperly administered breath test. Less than 13 percent of criminal convictions that are appealed in the State of Indiana result in a reversal of any kind. When it comes to complete reversals, the number is even lower.
It’s tempting to think that an appeal is won or lost at oral argument, but Attorney Marc Lopez firmly believes that the strongest criminal appeals begin with a thorough pre-trial investigation.
When it comes to DUI / OVWI cases, the Marc Lopez Law Firm spends a significant amount of time and resources investigating the certified chemical test—that is, the blood or breath test result that the State wants to use as evidence. In this particular instance, the test in question was for breath.
By statute, Indiana defers to the State Department of Toxicology when it comes to the specifics of certified chemical tests. Not only is the Department of Toxicology responsible for choosing the machines that are used by law enforcement, it also publishes rigorous, step-by-step instructions that govern test administration. The instrument that’s approved for certified breath tests in Indiana is the EC/IR II, and the procedure is laid out in the Indiana Administrative Code.
Under Indiana law, so long as the police officer has obtained the chemical test result using the machine and methodology approved by the Department of Toxicology, the results are admissible as evidence. On the flip side, if the officer uses a machine or procedure that’s not approved, the results are inadmissible.
There’s lots of important stuff for attorneys to do during a pre-trial investigation, but taking things at face value isn’t one of them. In this case, the officer had submitted paperwork and a computer printout from the EC/IR II showing that the client’s blood alcohol content was .097 grams of alcohol per 210 liters of breath—which is above the legal limit of .08.
Neither the officer’s reports nor the printout indicated that there were any irregularities with regard to the testing procedure. As far as the prosecution was concerned, this was an open-and-shut case. If all you looked at was the charging information, you’d probably be inclined to agree.
Attorney Marc Lopez, however, likes to dig deeper. Based on more than a decade of professional experience, he believes that the strategy of taking the State’s word for it is antithetical to the practice of criminal defense.
Attorney Lopez has attended a number of seminars concerning the empirical reliability of certified chemical tests, including the EC/IR II. He understands no machine works perfectly, and he knows that Intoximeters, Inc.—the company that manufactures the EC/IR II—keeps a comprehensive log for every machine that’s currently in use. This log is commonly referred to as the “download data,” and it contains everything you could ever want to know about a particular machine’s recent history, performance, and maintenance.
In every case involving a certified breath test, the Marc Lopez Law Firm formally requests the EC/IR II download data for the machine in question. Here, the information appeared straightforward and uncontroversial, a coded record of a job well done.
Buried deep in the data, though, Attorney Marc Lopez found something unusual: The .097 result was actually from the second test that had been administered to the client. The officer’s first attempt—not noted in either of his reports—had resulted in an unanticipated error message: maximum flow exceeded. Three minutes later, the investigating officer had tried again with the same machine. On his second attempt, he’d obtained a result—.097—more in line with his established expectations.
Here’s the problem: In order for the certified chemical test result to be admissible, the officer who administers it is required to follow protocol exactly. The officer must stick to the script, even when things aren’t going according to plan. For example, if the EC/IR II produces an error message indicating the presence of mouth alcohol, the Administrative Code directs the officer to start the process over, beginning at step one. Where the error message reads insufficient sample, the officer must return to step two.
The Administrative Code contains all testing procedures that have been approved; any testing procedure not described in the Code has not been approved and is therefore unacceptable. The Code doesn’t allow for compromises or exceptions—it’s an all-or-nothing scenario.
For anyone concerned that the strategy outlined above constitutes some sort of bad-faith, rhetorical attack on honest police work, Attorney Marc Lopez would like to remind you that the EC/IR II is an incredibly sensitive instrument that can detect the presence of alcohol down to one thousandth of a gram. Some error messages call for the officer to wait 15 minutes before re-administering the test, while others do not.
This is not a matter of insistence on dogmatic rule-following, but rather a question of procedural integrity. As the Indiana Court of Appeals has previously observed, the “[i]ntroduction of a breath test lends the aura of scientific certainty to a prosecution for driving while intoxicated, often sealing the fate of the offender in the mind of the trier of fact.” When evidence is weighted this heavily, it’s irresponsible not to be skeptical.
The Indiana Administrative Code explicitly contemplates a number of possible error messages and provides direction in each case. There is no instruction, however, for what to do when the maximum flow exceeded message appears. In the absence of administrative guidance, the officer in this case had a decision to make: (a) abandon the breath test and get a sample of the man’s blood; (b) obtain a valid breath test result from a different EC/IR II machine; or (c) carry on as if nothing strange had happened. The officer opted for (c), which at the time probably seemed like the path of least resistance.
Under penalty of perjury, the officer explained that he’d never seen the maximum flow exceeded message before, and he’d elected to treat it like an insufficient sample error. In other words, he improvised a testing procedure that had not been approved in the Administrative Code. He started the test over at step two—no 15-minute wait—and in the process, he invented his own protocol. This was not a faithful application of the Department of Toxicology’s testing standards.
The pre-trial investigation is only the beginning, of course. Otherwise helpful bits of information quickly lose their utility if they aren’t properly entered into the court record. At the client’s bench trial (which is a trial without a jury), Attorney Marc Lopez objected to the admission of the breath test results, arguing that they weren’t obtained in conformity with the Department of Toxicology’s approved testing procedure.
The Judge took this motion under advisement, reviewed the Administrative Code, and ruled that the test results were admissible, reasoning that the officer was simply making a good-faith effort to do his job. To be clear, Attorney Marc Lopez was not alleging or implying any malice or other bad intent on the part of the officer. His point was merely that the officer had at least three options available to him, and he still chose the one that was incompatible with the relevant section of the Administrative Code.
At the trial’s conclusion, the client was found not guilty of operating a vehicle while intoxicated as a Class C misdemeanor, but he was convicted of operating a vehicle with an alcohol concentration equivalent to at least .08 but less than .15 as a Class C misdemeanor. Defeated but undaunted, Attorney Marc Lopez timely filed his client’s appeal.
The trial proceedings were transcribed, the issues were briefed, and the case was argued orally. Finally, ninety-seven days after the appeal was first filed, a three-judge panel of the Indiana Court of Appeals unanimously reversed the conviction. In its opinion, the Court affirmed that officers have no discretion when it comes to the administration of chemical tests—they’re either by-the-book, or the results are inadmissible. The State gets no credit for making a reasonable effort, and it can’t convict people without evidence.
In the end, the Court of Appeals got it right, but if he hadn’t taken the time to lay the proper foundation, Attorney Marc Lopez would never have had this opportunity. If he hadn’t objected to the test results, he could not have appealed their admission. Likewise, if he hadn’t requested the download data and done the necessary research, he never would have discovered this issue in the first place.
An appellate victory is a great honor, but Attorney Marc Lopez still prefers to win at trial. If you or a loved one is facing criminal charges, you want a lawyer who’s willing to go the extra mile. Call the Marc Lopez Law Firm at 317-632-3642, and remember—always plead the 5th!