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State breath tests face challenge

– An Indianapolis attorney says the state has failed to update its rules for validating breath-test instruments and certifying police officers who administer the tests, putting hundreds of drunken-driving cases that hinge on the test results in jeopardy.

Attorney John Tompkins contends that breath tests administered to drunken-driving suspects since Jan. 1 aren’t valid because the Indiana Department of Toxicology failed to update its procedures as part of 2011 legislation spurred by concerns about management and oversight within the department.

The legislation gave the department until July 1, 2012, to make the changes, but Tompkins says that didn’t happen.

As a result, the department’s authority to certify breath-test machines and their use by law enforcement is no longer valid, he says.

“Basically, we’re saying that (certification) work was conducted by an agency that no longer has the authority to do it,” Tompkins told The Indianapolis Star.

Tompkins has filed legal motions in about a dozen central Indiana court cases. If the challenges succeed, it would mean every machine in the state has been out of compliance since at least the beginning of the year – and some could have been out of compliance since early July.

“I believe this could open the proverbial can of worms,” said Frances L. Watson, clinical law professor at the Robert H. McKinney School of Law in Indianapolis. “There could be a huge impact.”

Tompkins said his challenges are meant only to focus on the use of breath-test machine results and don’t undermine efforts to stop or prosecute alleged drunken drivers.

“They can still go to trial with other evidence,” he said. “What it is going to do is force (law enforcement) to do blood tests on all suspects until the department gets its house in order.”

Ryan W. Scott, law professor at Indiana University Maurer School of Law, questions whether the challenges will go anywhere.

“I think a court would work awfully hard to interpret the statute in a way that would avoid that result,” he said.