Breath Tests and Sobriety Checkpoints Oral Argument

On October 26, 2018 Attorney Matt Kroes, with the Marc Lopez Law Firm, argued to the Indiana Court of appeals that a conviction for DUI / OVWI for the firm’s client should be reversed due to an incorrectly administered breath test on the EC/IR II and because the sobriety checkpoint was done in a manner not lawfully allowed. The following is the transcript from that argument.

Bailiff:                          All rise. Hear ye, hear ye, hear ye. The Court of Appeals of the state of Indiana is now in session, with the and the Honorable Edward W. Nagin, Jr., of Monroe County, presiding, with the Honorable L. Mark Bailey Decatur County, and the Honorable Melissa F. May of Vanderburgh County. You may be seated.

Hon E. Najam,Jr:           Good morning.

Speaker 3:                    Good morning, Your Honor.

Hon E. Najam,Jr:           We’re here for an oral argument today in the case of Connor vs the State of Indiana. This is a criminal appeal from the Marion Superior Court, which sits in Indianapolis. Representing the appellate, Mr. Connor is Matthew Kroes. Is that correct?

Matthew Kroes:            Yes, Your Honor.

Hon E. Najam,Jr:           I noticed that you have reserved five minutes for rebuttal?

Matthew Kroes:            That is correct, Judge.

Hon E. Najam,Jr:           Thank you. And representing the State of Indiana is our Deputy Attorney General, Tyler Banks. Is that correct?

Tyler Banks:                  Good morning, Your Honor. Yes.

Hon E. Najam,Jr:           Thank you. Mr Kroes, the case is with you.

Matthew Kroes:            Thank you, Your Honor.

Matthew Kroes:            Good morning again, Your Honor. May it please the court. My name is Matthew Kroes, and I’m here to represent defendant or the opponent in this case, Mr. Connor versus State of Indiana.

Hon E. Najam,Jr:           Mr Kroes, make sure you lean into the microphone or raise your voice…

Matthew Kroes:            Sorry, Judge. I normally have a very loud voice. I was hoping that if I was far enough away it would catch it, but I guess that’s not the case.

Hon E. Najam,Jr:           It’s good now. Thank you.

Matthew Kroes:            So I apologize. If it would please the court, and for audience purposes, probably be best if I give a brief presentation of the facts on this case.

Hon E. Najam,Jr:           Please do.

Matthew Kroes:            Judge, this case arises on a checkpoint case, which was a D.U.I. Checkpoint case out of Marion County, which occurred on March 17, 2017. The checkpoint was located at 555 North Delaware Street, Indianapolis, Indiana. And there were signs posted for this checkpoint in two different locations. You’ve got signs on Delaware Street and you’ve got signs on Michigan Street to alert drivers that you’ve got a checkpoint coming up.

Matthew Kroes:            The signs on Delaware Street were 110 feet south of South Michigan Avenue, Michigan Street and 100.1 feet south of Michigan Street. Then you’ve got signs on [inaudible 00:02:33] which are 123 feet from Delaware and another one that’s 204 feet from Delaware. And I kid you guys, because it’s going to be the crux of half of my argument, is that there are going to be so many distances and signage placements.

Hon E. Najam,Jr:           So Mr. Kroes, there were four signs?

Matthew Kroes:            Correct.

Hon E. Najam,Jr:           Where these 5 x 5 signs?

Matthew Kroes:            They were 5 x 5 construction signs, yes.

Hon E. Najam,Jr:           And these are signs announcing that there is a sobriety checkpoint ahead?

Matthew Kroes:            Correct, Your Honor.

Hon E. Najam,Jr:           And you’re saying that the record shows that three of the signs were in the neighborhood of 110 to 123 feet from the checkpoint and one sign was 204 feet away.

Matthew Kroes:            110 to 141 feet, Your Honor.

Hon E. Najam,Jr:           141.

Matthew Kroes:            There’s 110, 141, 123, and then 204.

Hon E. Najam,Jr:           Good.

Matthew Kroes:            Yes, Judge, that’s correct.

Matthew Kroes:            My client, Mr. Connors driving home. He’s on Delaware Street and he’s approaching the checkpoint and he’s alternately one of the cars that is pulled over in the checkpoint. Officers directed him into a parking lot at 555 North Delaware and the officers, which will come out in argument, are designated to ask very specific questions, “How are you?”, “License and registration,” which are perfectly legal. And then, Lieutenant Kibbet, who is the commander of the checkpoint, ultimately has the question, “Have you had anything to drink tonight?” All normal questions by the book, which is going to come out in argument on both sides.

Matthew Kroes:            Ultimately, Officer Wildhamer, of the Indianapolis Metropolitan Police Department, is the one that pulls my client over, directs him into the checkpoint area, notices the smell of alcohol, issues a portable breath test. Results come back, .061 on a PDT. That is also admitted in the court’s record.

Hon E. Najam,Jr:           What’s the minimal legal?

Matthew Kroes:            .08 is the legal limit.

Hon E. Najam,Jr:           Part of the breath test is the field test, but it’s not equivalent to the breathalyzer.

Matthew Kroes:            Correct, Your Honor. So the .06 is not admissible as evidence of served by chemical results. It’s admissible for intoxication purposes I believe, and there are off of that subject, a certified chemical test, which is what Officer Wildhamer ultimately does. He takes my client back to the station, issues him an EC/IR II machine, EC/IR II a replacement for the Datamaster back in 2014.

Hon E. Najam,Jr:           So basically, a breathalyzer.

Matthew Kroes:            Exactly, it’s like a 19 year old computer. It’s old and there are step by step administrative rules on how these breath tests have to be administered.

Hon E. Najam,Jr:           And these rules are promulgated by the Department of Toxicology?

Matthew Kroes:            Exactly, Your Honor. And it’s going to be in the Indiana code Title 260, which the court took judicial notice of at trial.

Matthew Kroes:            What happens is, they bring my client in, they follow, to the best that we can figure out, protocol for the first breath test. My client blows into the machine and the machine gives back an error message: Maximum flow exceeded.

Matthew Kroes:            ‘Maximum flow exceeded’ is an error message that is not deleted that the Department of Toxicology has sent out in Title 260 in the administrative code. So what happens then-

Hon E. Najam,Jr:           That’s in part of the proved methods for administrating breath tests.

Matthew Kroes:            Correct, Judge.

Hon E. Najam,Jr:           So your argument is, is that this particular sample exceeded, is that what it said?

Matthew Kroes:            So it said ‘Maximum flow exceeded’.

Hon E. Najam,Jr:           ‘Maximum flow exceeded’ is not set out in the rules, in the administrative code?

Matthew Kroes:            Correct. Exactly, Your Honor.

Hon E. Najam,Jr:           It’s not an option. The probable most common one is ‘Insufficient sample’.

Matthew Kroes:            Correct, Judge.

Hon E. Najam,Jr:           So what happened after the ‘Maximum flow exceeded’ warning message or error message was displayed?

Matthew Kroes:            So after the ‘Maximum flow exceeded’ comes outJudge, Wildhamer has no guidance. He has no idea what to do. He changes the mouthpiece, he waits a couple of minutes, puts the mouthpiece back on, and then tells Mr. Connor to blow again.

Hon E. Najam,Jr:           So he re-administered the test using the same machine.

Matthew Kroes:            Correct, Your Honor. He does. He uses the same machine. That second result comes back at .097 which is over the legal limit of .08.

Hon E. Najam,Jr:           Okay, Mr. Kroes, you have outlined the facts, including the sobriety checkpoint and the administration of the breathalyzer.

Matthew Kroes:            Correct, Judge.

Hon E. Najam,Jr:           And you raised two issues on appeal.

Matthew Kroes:            Correct, Judge.

Hon E. Najam,Jr:           The first issue is that the sobriety checkpoint, the way it was administered, is unconstitutional.

Matthew Kroes:            Correct, Your Honor.

Hon E. Najam,Jr:           What is your argument on that issue?

Matthew Kroes:            So, Judge, the Gerschoffer Court in Indiana has six factors. Not really a factor test or an element test or the balancing test, so you kind of look at these six factors. Our three, in our argument, really only focuses on four. Obviously, one of them that we don’t really argue is the objective. The objective of the checkpoint is to try and deter drunk drivers. There’s no question that that is one of the objectives. However, before they could do, however, is going to be in the degree of [inaudible 00:07:27], whether or not the checkpoint was safely operated or operated under safe conditions, whether or not the police discretion and how much there is, and then the effectiveness. So those are the four kind of factors we really focus on.

Matthew Kroes:            And this is where the signs come in to play and why we argue so hard about it.

Hon E. Najam,Jr:           Are they, per se, lawful to begin with? The checkpoint?

Matthew Kroes:            Are they per se? As long as, I’m sorry, Judge. As long as there’s minimal intrusiveness, then yes, they are constitutionally admissible and that’s where Gerschoffer comes in, you know, to kind of give you guidance as far as what to weigh and what to consider.

Hon E. Najam,Jr:           Now Gerschoffer is an opinion of the Indiana Supreme Court-

Matthew Kroes:            Correct.

Hon E. Najam,Jr:           … saying that sobriety checkpoints are properly organized, not in the field, but in an administrative level-

Matthew Kroes:            Correct.

Hon E. Najam,Jr:           … and to make certain they meet certain objective tests-

Matthew Kroes:            Absolutely.

Hon E. Najam,Jr:           … that there is no violation of Article 1 Section 11 of the Indiana Constitution, which is our search and seizure article.

Matthew Kroes:            Correct.

Hon E. Najam,Jr:           Article, the equivalent of the Fourth Amendment.

Matthew Kroes:            Correct.

Hon E. Najam,Jr:           Okay, now you described this step, all these various steps. Where, in your view, is the fatal flaw in the way this sobriety checkpoint was conducted.

Matthew Kroes:            Judge, it’s going to be with the signage because the signage points are going to be inside, but for one. But for one, all three signs are going to be within 200 feet. Part of the checkpoint is that there’s avoidability. So part of whether or not it’s constitutional or not is if the defendant, or my client, has the ability to avoid the checkpoint.

Hon E. Najam,Jr:           So you’re saying he didn’t have enough, there wasn’t enough lineage footage-

Matthew Kroes:            Correct, Judge.

Hon E. Najam,Jr:           … for him to avoid the checkpoint?

Matthew Kroes:            Correct.

Hon E. Najam,Jr:           He couldn’t turn, he couldn’t…

Matthew Kroes:            Correct, Judge. The Indiana code makes it a law. You have to have your turn signal continuously on for 200 feet before making a turn, which is physically impossible.

Hon E. Najam,Jr:           Okay, but that’s a separate statute, right? I mean the 200 feet requirement, if you are under 50 miles an hour, is 200 feet.

Matthew Kroes:            Correct, if it’s over 50, it’s 300.

Hon E. Najam,Jr:           If it’s over 50 miles an hour, it’s 300 feet.

Matthew Kroes:            Correct.

Hon E. Najam,Jr:           Okay, so he didn’t have 200 feet within which to put his turn signal on and avoid the checkpoint.

Matthew Kroes:            Correct, Your Honor. And so my client ends up in a catch 22. He either submits to the checkpoint or he makes an illegal turn. So the state had originally provided some additional authority with regards to the 200 feet in State vs Rhodes-

Hon E. Najam,Jr:           Right.

Matthew Kroes:            … which, I don’t really believe is going to control or offer any help here.

Hon E. Najam,Jr:           We’re going to ask the Deputy Attorney General here to explain why the state offered our opinion in State vs Rhodes as additional authority and how it applies to this case. This was a 2011 case. The opinion was written by Judge Crone and I happened to be on the panel. I concurred with Judge Crone’s opinion. And that had to do with whether or not the individual who was arrested, we had sustained the suppression. The trial court suppressed the evidence.

Matthew Kroes:            Correct.

Hon E. Najam,Jr:           Right? And I think one of the reasons was that the defendant did not have 200 feet within which to make a lawful turn. Is that correct?

Matthew Kroes:            Correct, Judge.

Hon E. Najam,Jr:           Yeah, I think we said, and I quote, “We agree that the state failed to show that compliance with the statute – that’s the 200 foot statute, was possible under the circumstances.”

Matthew Kroes:            Correct, Judge.

Hon E. Najam,Jr:           And you’re making that argument?

Matthew Kroes:            It’s not possible, under the circumstances, to make 200 continuous feet of turn signal and then turn to avoid the checkpoint.

Hon E. Najam,Jr:           Okay, I got a question for you. This was awkward, provided to us by the State of Indiana, as additional authority in this case.

Matthew Kroes:            Correct.

Hon E. Najam,Jr:           But you think this case actually supports your position?

Matthew Kroes:            I think it helps us a little bit, Your Honor. I do.

Hon E. Najam,Jr:           So both the state and you are interested in citing State vs Rhodes and each claim that it helped your position in the case?

Matthew Kroes:            Absolutely, Judge. Absolutely.

Hon M. F. May:             Why is it important that the checkpoint be avoidable?

Matthew Kroes:            Because it goes back to the intrusiveness of Lides and Coujers. So checkpoints are constitutional as long as there’s minimal intrusiveness. So there has to be a choice. The defendant has to have a choice to avoid the checkpoint. Now obviously in most cases, what’s going to happen is, the officers that are providing the checkpoints are going to have what’s called a chaser car, so you’re kind of a little in a catch 22 there, too, unless you can kind of make legal turns and there’s no reason for the officers to pull you over.

Hon E. Najam,Jr:           Well, let me ask you this. I’m not competent in this, so maybe you could help me-

Matthew Kroes:            Sure.

Hon E. Najam,Jr:           … about the state or direct. First of all, what street was he on, Delaware or Michigan?

Matthew Kroes:            He was on Delaware, Judge.

Hon E. Najam,Jr:           Okay. And could he have turned? Now you say it would have been an unlawful turn because he didn’t have 200 feet within to turn his turn signal on. But was there a side street or a crossing street that he could have utilized to avoid the checkpoint?

Matthew Kroes:            There were some streets, Judge, that he could have turned to utilize. However, the only way he would have been able to do that would have been to make an unlawful turn.

Hon E. Najam,Jr:           So his signal could not have been on for 200 feet?

Matthew Kroes:            Correct.

Hon L. M. Baile:             Unless the signage was farther back than the 100 to 143 feet, right?

Matthew Kroes:            Correct. So if the signages are back to 200 feet, it gives him the opportunity to turn them on. I anticipate the state’s going to argue you could see the construction signs outside of 200 feet.

Hon E. Najam,Jr:           Yeah, isn’t that the argument that you… the signs may not be 200 feet away from the checkpoint, but you could certainly see the signs more than 200 feet in the checkpoint.

Matthew Kroes:            Correct, Judge, but that brings in a lot of variables as well because if you’re driving a motor vehicle, you’re supposed to continually look and look away to make sure you have an out on either side, and you’re safely driving, can look through your rear view mirror. So extrapolation is crazy. But just depending on how fast you’re going, you’re actually moving… I kind of did the math a little bit before this. But you’re going about 260 feet, roughly, per second, if it’s 30 miles an hour on Delaware. So if you’re looking away for six seconds, that’s 260 some odd feet.

Hon L. M. Baile:             Well these factors that the Indiana Supreme Court provided to us, does it say 200 feet back to see the sign or 200 feet where the sign minimally needs to be posted?

Matthew Kroes:            So, Judge, with regard to checkpoints, there’s no guidance as far as the law goes as far as how far back it needs to go. However, Lieutenant Kibbet, the commander here, testified that it was part of their plan and the reason to have it at 200 feet. And the reason they have it at 200 feet is for the very reason that I’ve just cited, so they could have the opportunity to have their turn signal on. So this-

Hon M. F. May:             Well, one of the officers testified that the signs were not able to be put further away because of obstructions. Was there any testimony about what kind of obstruction there was or why it was not possible to put them more than 200 feet away?

Matthew Kroes:            Judge, there was testimony as to why, not as to what kind of obstructions there was. Lieutenant Kibbet testified that it was officer’s safety, which, albeit, is one of the factors: Is the checkpoint operated under actual and safe conditions? So they’re saying it’s safety for the officers to have that kind of space between. However, that doesn’t take into account safety of my client, Mr. Connor. It doesn’t take into account the safety of other motorists, people trying to avoid the checkpoint. All of a sudden, they’re just going to be making immediate right turns, which is a red flag.

Hon E. Najam,Jr:           Mr. Kroes, let me ask you a but for argument.

Matthew Kroes:            Sure.

Hon E. Najam,Jr:           Let’s assume the evidence was not the evidence to be described and that every one of these four signs on Michigan and Delaware were at least 200 feet from the checkpoint.

Matthew Kroes:            Okay.

Hon E. Najam,Jr:           In your view, would that have been, then, a lawful sobriety checkpoint?

Matthew Kroes:            In my opinion, I think it absolutely would have helped, because then my client has the chance to avoid it.

Hon E. Najam,Jr:           He has the chance to escape.

Matthew Kroes:            Exactly, he has the chance to avoid it. He has the chance to kind of get away from it. If he gets pulled over because of an illegal turn outside of 200 feet, then the chaser car has the absolute right to pull him over.

Hon E. Najam,Jr:           Yeah, you only have about a minute and a half on your principal argument. You want to say something about the other issue-

Matthew Kroes:            Absolutely.

Hon E. Najam,Jr:           …or the fact that the breathalyzer…

Matthew Kroes:            Absolutely, Judge. Absolutely, Judge. So with regard to ECIR II, there’s absolutely no guidance for Lieutenant or Officer Wildhamer to do anything once the maximum flow exceeded is up.

Hon E. Najam,Jr:           So he called an audible.

Matthew Kroes:            Correct. He essentially improvised. It’s called an audible, hit a mulligan, whatever supports record you want to use, is not appropriate. So with the checkpoint, we’ve got a balancing test. With the ECIR II and the certified chemical test, that’s strict compliance. There’s no deviation.

Hon E. Najam,Jr:           What authority is there that says that strict compliance with the protocol set out by the Indiana Department of Toxicology and as spread record of the Indiana Administrative Code must be strictly complied with?

Matthew Kroes:            So, Judge… Correct, Judge. That’s in Indiana Code 930 6 5. Basically what that says, is going to say that the administration of the chemical test must be in accordance to Indiana Department Toxicology Standards. Indiana Department Toxicology Standards is in Title 260.

Matthew Kroes:            I see my time is up. If there’s any other questions, I’d be happy to answer them.

Hon E. Najam,Jr:           We can return to this during the rebuttal. Thank you, Mr. Kroes.

Matthew Kroes:            Thank you, Judge.

Hon E. Najam,Jr:           Mr. Banks, the case is with the State of Indiana.

Tyler Banks:                  Thank you, Your Honor. May it please the court. The trial court did not abuse discretion in admitting that it was here. The checking point was lawfully planned and conducted on the night Mr. Connor entered, and was later was discovered to be driving with an unlawful alcohol content.

Tyler Banks:                  The factors looked, too, by this court weight in favor of the state and toward a holding, the D.W.I. checkpoint here was lawful. Further, the trial court properly-

Hon E. Najam,Jr:           So, so-

Tyler Banks:                  … I’m sorry, Your Honor.

Hon E. Najam,Jr:           So with regard to this checkpoint, we know that you need to signal at least 200 feet before making a turn and if these signs aren’t closer than 200 feet, and you’re traveling at a certain speed, it’s going to be next to impossible to see those signs before you are in the gauntlet that would preclude you from doing anything other than going through that gauntlet without otherwise violating the law and giving the police a reason to stop.

Hon E. Najam,Jr:           So have you rectified the factors, being what the state of the law is, with regard to traffic…

Tyler Banks:                  Sure. Even if we were to admit that these signs were not allowed for lawful term, which I’m not. But even if we were to state that, that is just one sub-factor within this analysis. Even if we were to put a weight on the scale in favor of Mr. Connor in that analysis, we still would come out, I believe, on all of the other factors. But as the particular point.

Hon E. Najam,Jr:           What is the balance. We talked about the balance test, but what are we balancing against? Is it a constitutional provision or the right to be safe and secure in our personal property? Or was it a… what is it we’re balancing here?

Tyler Banks:                  Yes, so, and I’m not sure if Gerschoffer does this but [inaudible 00:18:33] does. These types of special need stops, we go ahead and start with the presumption that they are not constitutional.

Hon E. Najam,Jr:           Not constitutional?

Tyler Banks:                  Yes, but not in any particular case, but that’s how the Supreme Court started. But then we say, but we’re going to allow them to occur provided that officer discretion is strictly limited, that they’re implemented pursuant to a usual plan that’s created by appropriate officials, that each intrusion is minimized as much as possible, that they have a proper and constitutional objective, timing and location, and that they’re operated safely. And that’s how we allow them. Now I’m not sure under Article 1 Section 11 whether that particular history I just described are holding in the U.S. Supreme Court is the same. I don’t think Gerschoffer really comes into that. But I would imagine that the logic is similar because in lots of ways, Article 1’s logic [inaudible 00:19:25].

Hon E. Najam,Jr:           And Mr. Banks, in every appeal, our court is concerned with our standard of review.

Tyler Banks:                  Yes, Your Honor.

Hon E. Najam,Jr:           That we are not a fact finder, that the trial court is. We don’t find facts and we don’t judge the credibility of witnesses. Now, is the standard of review that use of discretion or are we presented with a question of law, in which case we start the nobis, and we owe the trial court no deference.

Tyler Banks:                  Sure. So when we’re talking about the admission of evidence, it’s within the trial court’s wide discretion on whether it is going to admit evidence. But when reviewing the constitutionality, something that may impune Article 1 Section 11, this court’s review is nobis. But, so it’s to know the last of the law, but the abuse of discretion standard is still doing some work, because this court should take all reasonable inferences from the facts in favor of the judgment. The less more factual questions, there is some deference, but on the legal question under Article one Section 11, there is no deference as to legal holdings.

Hon E. Najam,Jr:           So it’s your position that the state was not required to place these signs at least 200 feet from the checkpoint?

Tyler Banks:                  Maybe not as forceful as that, Your Honor. I don’t know if we were not required to do so. What I would say is that the Marion County Traffic Safety Partnership issued a manual. And that manual has 200 feet as an ideal guideline.

Hon E. Najam,Jr:           Is that manual in the record?

Tyler Banks:                  That manual is not in the record.

Hon E. Najam,Jr:           Okay, can we take judicial notice of it, or is it too late? What’s it called?

Tyler Banks:                  Say what? I’m sorry.

Hon E. Najam,Jr:           What’s the manual called?

Tyler Banks:                  I don’t know. It’s the Checkpoint Operation Manual. That’s how Lieutenant Kibbet described it in his testimony.

Hon E. Najam,Jr:           So it was referred to in his testimony.

Tyler Banks:                  Yes, Your Honor.

Hon E. Najam,Jr:           But it was not actually admitted in evidence.

Tyler Banks:                  It was not admitted into evidence, but I would say that the record does reflect that this checkpoint was created pursuant to that plan and that also, this checkpoint had to be approved by both the Marion County Traffic Safety Partnership and the prosecutor’s office before it was implemented.

Hon L. M. Baile:             So now you have a manual, which the Supreme Court has said that you have to do administratively not on the ground. But then the question is whether application of the manual to the field work complies significantly enough to determine whether it’s a new constitutional checkpoint or not.

Hon L. M. Baile:             So how many factors can we deviate from what the manual says before we preclude that it’s no longer reasonable and concur unconstitutional?

Tyler Banks:                  Sure, and I very much want to latch on the fact that the word reasonable, that you just used, Your Honor.

Hon E. Najam,Jr:           That’s the touchstone of Article 1 Section 11.

Tyler Banks:                  That’s correct. And if you look at Lieutenant Kibbet’s testimony, he was asked about why these signs were placed where they were. And he said, “Well it’s not always possible to put them more than 200 feet away because they themselves are an obstruction in the road. And further, they have to be placed where they will be seen. So let’s say at 200 feet, there’s big pillar right next to it. We don’t want to put that sign behind that pillar because then it can’t be seen.”

Hon L. M. Baile:             Well, but that begs the question whether or not you should have had a checkpoint there in the first place as opposed to up the street where there wasn’t construction or where there wasn’t a pillar. I mean that’s the whole idea of the administrative approach to it rather than on the scene.

Tyler Banks:                  Fair enough, Your Honor, but that’s a safety, well, a very important part of it.

Hon L. M. Baile:             Which is another factor.

Tyler Banks:                  Right, but this checkpoint site was not only based on what physical logistics would be. It was also as the Gerschoffer report said was important, based on statistics of where O W I crashes and O W I arrests had occurred.

Hon E. Najam,Jr:           And also the calendar, it was Saint Patrick’s Day.

Hon M. F. May:             Saint Patrick’s Day.

Tyler Banks:                  Yes. I mean, the timing here was reasonable. It’s a holiday that some celebrate with excessive alcohol consumption and this checkpoint took place just west of Massachusetts Avenue, where many cars in Indianapolis frequent.

Hon M. F. May:             So-

Hon E. Najam,Jr:           Go ahead.

Hon M. F. May:             So, one of the things that you just mentioned was the number of crashes or the number of stops that had been made in that area with regard to drunk driving. How, did someone just testify that that was why it was picked or was there anything actually put into evidence as far as any kind of survey or police reports or anything like that as to the fact that there were more arrests there, or accidents or something?

Tyler Banks:                  It’s just Lieutenant Kibbet’s testimony but to bolster it somewhat, Lieutenant did testify that he operates all possible checkpoints that are handled by the Indianapolis Metropolitan Police Department. He’d been doing it for many, many years. And actually, I believe the bench council below somewhat conceded that by saying, “I know you’ve been doing this a while. We’ve been doing a lot of trials together.” So I don’t think Lieutenant Kibbet… I think his testimony on that point should be credible in addition to the fact that this checkpoint was approved by the partnership and by the Marion County Police Department.

Hon E. Najam,Jr:           The problem of course, and the actual statistics, don’t pare out, which questions… They stopped 332 cars and they only had four drunk drivers. So they had less than, what, less than 1%, or what? What was the percentage?

Tyler Banks:                  That sounds about right, Your Honor. Which I think was not that different than Gerschoffer and not that different than Sublight which this court approved. But the state’s position is that effectiveness is a factor and this analysis should not be given much weight.

Hon E. Najam,Jr:           It’s not controlling, not controlling.

Tyler Banks:                  It’s definitely not controlling. But honestly, from the state’s position we disagree with the Gerschoffer report that it should even be a factor. It is entire-

Hon E. Najam,Jr:           Whoa, whoa, whoa.

Tyler Banks:                  I’m not asking you to approve Gerschoffer-

Hon E. Najam,Jr:           Wait a minute. Gerschoffer Report is an opinion of the Indiana Supreme Court. And you’re saying that the state disagrees with it?

Tyler Banks:                  I’m saying that the state disagrees with its logic.

Hon E. Najam,Jr:           I see.

Tyler Banks:                  The logic doesn’t, it’s entirely unclear how an after the fact measurement of effectiveness says whether the checkpoint was implemented constitutionally in the first instance. And it’s even more unclear how this measurement of effectiveness at all has to do with the personal privacy protection of Article 1, Section 2. Justice Dixon recognized this and his concurring opinion was we quote it in our brief.

Hon E. Najam,Jr:           Well I think that’s a legitimate criticism. But you can see that as an intervening appellate court, we have to follow-

Tyler Banks:                  You are bound by your…, but what I would say to this court and what we would like the court to hold is that this factor adds little weight in the analysis.

Hon E. Najam,Jr:           Well let me ask you this if I could circle back around to State vs Rhodes.

Tyler Banks:                  Yeah.

Hon E. Najam,Jr:           As the intentional authority? It never ceases to amaze me when parties will both cite the same case and both claim that the case helps their argument. How does State vs Rhodes help the state’s argument in this case?

Tyler Banks:                  So while I’m controlling, I think it provides… What it says is that it is impossible for a person to signal 200 feet before completing a turn. That a lawful traffic stop could not be effectuated on that basis, which, I think, is a legal holding. But we look at the facts in this case so that exhibits one and two were all of the statistic sheets filled out by individual officers. And if you look at the statistic sheet for the chase car, as Mr. Kroes put it, he made no stops by them. So nobody was pulled over for this violation or infraction or for any other by the chase car.

Hon M. F. May:             Well, I’m not really sure I find that very compelling, because I’m not sure that anybody approaching that sobriety checkpoint is going to have any idea that the chase car isn’t going to chase them if they make an illegal turn.

Tyler Banks:                  Clearly, Your Honor, I mean, they’re not going to-

Hon M. F. May:             And Delaware is a one way street, you know?

Tyler Banks:                  Yes.

Hon M. F. May:             So the both of the signs that were on Delaware, which funnels into that checkpoint, were at 110, 141 feet.

Tyler Banks:                  Yes.

Hon M. F. May:             So, if you’re coming south on Delaware, by the time you get to the sign, you’re already illegally, if you’re going to turn.

Tyler Banks:                  I mean, I think Rhodes may disagree, you know. I think Rhodes is somewhat distinguishable because Rhodes would say, okay, if we have a single block and if you’re turning and it’s only 100 feet between two entrances, then it would be “impossible” to go from one to the other without signaling that far, whereas in this case, it may not have been impossible to comply with this. And it doesn’t necessarily, I mean, if that was your pre-directed route of travel. If, Rhodes isn’t all-

Hon M. F. May:             Is there any evidence where the chase car was located?

Tyler Banks:                  No, not that I’m aware of, Your Honor. The only thing I know about the chase car is the statistics sheet. You know, that may be on there and I missed it. The court can review that, and I apologize, but I don’t know. I would imagine that it was placed on Michigan after the turn onto Delaware because that would have been the only possible turn, so I would guess probably near that corner, but I couldn’t tell you for the record.

Hon M. F. May:             I couldn’t find it.

Hon E. Najam,Jr:           Mr. Banks, the appellate’s second argument relates to the operation of what’s commonly known as the breathalyzer.

Tyler Banks:                  Yep.

Hon E. Najam,Jr:           And whether or not the officer who performed the test followed protocol as promulgated by the Indiana Department of Toxicology and as appears in the Indiana Administrative Codes in the 260 IEC. I looked at that and there’s five different scenarios that are recipes for what you do depending on the error message. As I mentioned earlier, insufficient sample is a very frequent one.

Tyler Banks:                  Yes.

Hon E. Najam,Jr:           But an excessive sample or too much breath, I guess, is not one of the error messages that’s set up in the Indiana Administrative Code.

Tyler Banks:                  Sure.

Hon E. Najam,Jr:           So I have a question for you. Do you agree that the officer that administered the test, improvised in re-conducting the test without any obstructions from the Department of Toxicology on what to do under these circumstances?

Tyler Banks:                  I don’t believe he improvised, Your Honor.

Hon E. Najam,Jr:           Well, if he didn’t have any instructions…

Tyler Banks:                  Well, there’s no instructions in the Administrative Code. I agree with that. But this officer is a certified breath test operator and the Administrative Code in another section requires him to be trained not only in the rudimentary steps that are bound there, but also in theory, operation, and care of the instrument, they have to be trained in toxicology and how alcohol deal is in the mouth. There’s much more training above and beyond, so there’s no reason to believe that Captain Wildhamer didn’t act within his training and experience and further, the Administrative Code subsection B cannot include all possibilities that could occur within that room.

Hon E. Najam,Jr:           Well, it seems to me it’s a way when it comes to these breath tests, is that it would be within the contemplation to the Department of Toxicology that at one end of the spectrum, would be an insufficient sample and at the other end of the spectrum, would be an excessive sample. What was the terminology?

Tyler Banks:                  I think it was maximum flow exceeded.

Hon E. Najam,Jr:           Maximum flow exceeded. And it’s not in there. I mean, I don’t think the officer’s credentials are in question here. The question is what does an officer do under these circumstances when there is no guidance for him or her in the Code?

Tyler Banks:                  Your Honor, well, I mean, my initial response would be to follow the approved method to get another test. And to the extent that Mr. Connor is accusing the state or Captain Wildhamer of merely inventing a procedure? His proposed solution is just as invented.

Hon E. Najam,Jr:           His solution was use a different machine.

Tyler Banks:                  But that’s not in the Administrative Code either respectfully, Your Honor. Under the logic of Mr. Connor’s argument, which is that the breath test rule, as our Supreme Court referred to it in Hurley, is the alpha and omega of this is, leads to a conclusion that Mr. Connor couldn’t be tested at all, because a contingency occurred that was not provided for the administering the code.

Hon L. M. Baile:             Well, you can get a test by going to the hospital and getting the blood drawn.

Tyler Banks:                  Respectfully, Your Honor, that’s not in the Code, either. I mean, that’s Mr. Connor’s argument here. It is because something, anything, occurred that is not predicted by the Administrative Code. Then we’re just done here. He can’t be tested. I mean, that is where his argument goes. Instead, per said Captain Wildhamer here, restart it. He followed the approved method in subsection A.

Hon E. Najam,Jr:           Well, subsection A doesn’t address these circumstances, right?

Tyler Banks:                  Subsection A doesn’t, but it-

Hon L. M. Baile:             How much discretion does this Administrative Code provide for the administrator otherwise if it provides that message…

Tyler Banks:                  Well, there is explicitly some discretion when it comes to whether to mark a refusal. So officers have to rely on their observation and the Administrative Code doesn’t say, if a person is doing this particular action or this particular action, that constitutes a refusal. So there is some discretion in there, explicitly. But implicitly, it would be superfluous for the Department of Toxicology to require all of this additional training above and beyond what’s in the Administrative Code if all you had to do was follow the check list.

Hon E. Najam,Jr:           Well, I think your argument is very interesting. We’re obviously looking at this set of the facts for the first time. But Mr. Banks, to refer to you Subsection A of 260 IEC. And it says under step six, if subject sample interference is printed. Now I assume that means if, for example, the subject has chewing gum in his mouth or a penny under his tongue or something like that, that might interfere with the test, what’s supposed to be done is to contain an alternate chemical test, which Judge Bailey suggested, a blood test, or perform a breath test on another breath test instrument. So it seems to me that the Code does set out, which you do, when you get a reading that’s not reliable or it cannot be measured.

Tyler Banks:                  If I recall, Your Honor, and please correct me because you have it in front of you and I don’t have it in front of me. The next step on that is to remove the interfering substance, take the thing of your mouth, to another fifteen minutes and to give another breath test on the same instrument. I believe every one of subsection B says do a second test. The only difference between those ones are whether you have to do another fifteen minute waiting period. But all of those that require another fifteen minute waiting period have to do with a substance being in the mouth. So either mouth alcohol or a penny, as you said. That has something to do with the subject, not the instrument, and there is no evidence that this instrument was not reliable. It performed its own internal check again with the second breath test and, if you read that code, Your Honor, you’ll see this thing called no 0.02 agreement as a possible error code. That’s because during the administration of the test, the subject has to give two blows and if those two blows are not within 0.02 of an agreement, it will be an error message.

Tyler Banks:                  So not only does it conduct its own internal check against the known standard, but it checks the two breaths against each other. And here, when we look at the lineage of the test that was admitted and approved, Mr. Connors feels every approved step was followed. His argument was from what happened in the first administration of the test. But I would put to this court that the lineage that is important is the line that was actually admitted.

Hon E. Najam,Jr:           What you’re saying, though, is that the reference to fifteen minutes in Section two doesn’t apply because it has to do with a foreign object-

Tyler Banks:                  That’s correct.

Hon E. Najam,Jr:           … in the individual’s mouth.

Tyler Banks:                  Yes, or mouth alcohol, Your Honor.

Hon E. Najam,Jr:           But how much time was allowed for the machine to be reset before the second test was administered, in this case?

Tyler Banks:                  The way I read the record, Your Honor, I’m not sure it’s entirely clear. I think Captain Wildhamer testified that it was about three minutes. What’s not clear is whether that three minutes is what was required to reset these instruments. Going slightly outside the record a little bit, I’ve seen these instruments in operation and they’re not best. They don’t reset themselves as far as I know. So that may have been time time that it took to reset the instrument. Or it just could have been Captain Wildhamer’s judgment. Either way, there’s no evidence that anything was in Mr. Connor’s mouth or that the fact that he blew too much air would cause any inaccuracy in the instrument. I mean, contingencies upon contingencies can occur that are not covered by the Administrative Code.

Hon E. Najam,Jr:           I would major that. His burden of proof is to make certain that these contingencies are not manifested in the trial of the case and it’s the state’s burden to prove.

Tyler Banks:                  Well, obviously, it’s the state’s burden to prove that any action is lawful and it’s Toxicology’s burden to promulgate these rules. And I imagine that Toxicology may become aware of this particular error message and may incorporate it. But the fact that it didn’t… I see that my time is expiring. I can take more questions, Your Honor. If not, we ask you to purge the trial court.

Hon E. Najam,Jr:           You want to purge the trial court on both grounds?

Tyler Banks:                  On both grounds, Your Honor.

Hon E. Najam,Jr:           All right, thank you very much.

Tyler Banks:                  I think we need them both.

Hon E. Najam,Jr:           Thank you, Mr. Banks.

Hon E. Najam,Jr:           All right, Mr. Kroes, you have five minutes on rebuttal.

Matthew Kroes:            All right, we’ll do this again. You good? Is everything coming through?

Hon L. M. Baile:             Yeah, speak up on your microphone.

Matthew Kroes:            Better? Anything?

Hon L. M. Baile:             You’re good.

Matthew Kroes:            Judge, with regards to the certified chemical test, we absolutely argue that it is not admissible for multiple reasons. First of all, it does not transpire exactly according to the Department Toxicology. There’s no guidance as far as what to do should a maximum flow exceeded error message come up.

Hon E. Najam,Jr:           Now, that was this test. Let’s talk a minute about this.

Matthew Kroes:            Correct.

Hon E. Najam,Jr:           This test was originally called a drunkometer and the instrument, which has gone through many iterations, was actually invented at Indiana University Bloomington by Dr. Robert Borkenstein. So this instrument’s been around for a long time.

Matthew Kroes:            Correct.

Hon E. Najam,Jr:           Now, your opposing council says there are all kinds of things that can happen. And when I use the word improvise, he didn’t like that word. He said, “Well, he’s not really improvising. He’s trained. He’s got all these qualifications.” Is it your contention that basically the possibility here was just not accounted for? It’s not in the Code. There’s no instruction on what to do, and that therefore, the state can’t meet its burden of proof necessary to cause the test results to be admitted?

Matthew Kroes:            Exactly, Your Honor. I think the Department of Toxicology, with all due respect, plain on missed this. Initially one of the steps as far as when to go back is insufficient flow, which is not breathing hard enough. So you would think the contrary would be true as well, as far as breathing too hard. That’s not incorporated in there. So I think it was you that asked the question to opposing counsel, well, if it’s insufficient, then you got to go back to step one. There’s another waiting period. If there was a waiting period, if they even followed the insufficient sample, maybe we wouldn’t be here. But they didn’t do any of it. Wildhamer flat out abbreviated this.

Hon E. Najam,Jr:           Well let’s talk about that. Let’s talk about it. It’s an analog. It’s the other end of the spectrum. What is the protocol if there’s an insufficient sample?

Matthew Kroes:            So, Judge, the certified breath test is there’s going to be twelve actual steps. The first one’s going to be the fifteen minute waiting period.

Hon E. Najam,Jr:           You’re talking about subsection A?

Matthew Kroes:            Correct, Judge. So you’re going to have, there’s twelve actual steps, the first one to be the fifteen minute waiting period to make sure that there’s no foreign substances in the mouth. You’re going to make sure that nothing’s kind of, entered the mouth or anything that could cause a false positive on the ECIR II machine. Then there’s alternatively additional tests. You have to put in information regarding the fifteen minute wait period, when it started, when it didn’t start; who actually observed the fifteen minutes, because there are instances where you got an officer who pulls him over, observes fifteen minutes, and D Y officer comes in and then ultimately performs the test.

Hon E. Najam,Jr:           But if you’re looking for an analog among the five sub-paragraphs if this is of section B, you’re saying that the insufficient sample test is the closest analog.

Matthew Kroes:            That would be either that, or you just have to start over. So I would say insufficient would be the closest as far as if we’re looking for a parallel. And what insufficient says, you’ve got to go back to step two. You’ve got to start over to step two. Now that’s what we can determine. Officer Wildhamer went to, at best, step ten. At best, step ten.

Hon E. Najam,Jr:           Yeah, with an insufficient sample, you have to repeat step two through step twelve.

Matthew Kroes:            Correct. And at best, what we have is Wildhamer went straight to step ten. So he skipped two, three, four, five, six, seven, eight. I’m still not arguing. Still, that’s just the best we can determine and what’s really interesting here, is Officer Wildhamer, when he administered the second test, it wasn’t replace the mouth piece. Here, blow. I know it takes a little bit of time for the machine to reset but there’s three minutes, at best, or approximately three minutes.

Matthew Kroes:            There’s conscious thought by the officer, or at least reasonable belief, there’s conscious thought with Officer Wildhamer, “What am I supposed to do in this situation?” So all he does, the machine might reboot back up. He’s just like, forget it. I’m just going to do what I’m guessing I’m going to do, or what I imagine would be possible, would be to ask for another test. Easy way to do that, and Judge Bailey brought this up, do a blood draw; go to a different machine or repeat from step one. I think there’s a lot of different options that Officer Wildhamer did other than go flat off the cuff. My big hook for this whole thing, and I swear I wasn’t going to do it, because Mr. Lopez waited til-

Hon E. Najam,Jr:           Please don’t swear in court, Mr. Kroes.

Matthew Kroes:            I apologize. My big hook would be if you don’t do the breath test by the book, you can’t call my client a crook. You can’t. Indiana Administrative Code says you have to do it exactly according to their procedures. There’s no procedure for this. Officer Wildhamer went off his cuff, did it himself, figured out what he might be able to do, what he might be able to get away with. He did nothing according to anywhere remotely close to even insufficient. He could have went back and he could have went all of the steps again.

Matthew Kroes:            I see my time is up, Judge. I thank you all. It’s been an honor.

Hon E. Najam,Jr:           Thank you, Mr. Kroes.