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FOR PUBLICATION

ATTORNEYS FOR APPELLANT: STEVEN D. ALLEN JOSEPH M. CLEARY Hammerle & Allen Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MEREDITH UPCHURCH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 30A01-0506-CR-270

APPEAL FROM THE HANCOCK SUPERIOR COURT The Honorable Dan Marshall, Judge Cause No. 30D02-0412-CM-2091

December 30, 2005

OPINION - FOR PUBLICATION

CRONE, Judge

Case Summary Meredith Upchurch appeals from the denial of her verified petition for judicial finding of no refusal. We reverse. Issue Upchurch presents one issue for our review, which we restate as whether the trial court erred in finding that Upchurch refused a breath test. Facts and Procedural History On December 19, 2004, Upchurch was involved in an accident with another vehicle in Hancock County. Emergency medical technicians arrived and determined that Upchurch was not in need of any treatment. While Upchurch was sitting in the ambulance, a Hancock County sheriff's deputy arrived and asked her to perform some field sobriety tests, including the horizontal gaze nystagmus test. Upchurch also took a portable breath test.1 The officer then asked Upchurch to take another breath test, and Upchurch agreed to be transported to jail for administration of the test. At the jail, the officer asked Upchurch to perform two additional field sobriety tests, and she did so. He read Indiana's implied consent law 2 to Upchurch, informing her that refusal to take the test would result in the suspension of her license for one year. At 5:05 a.m., Upchurch attempted to take the breath test on a "breathalyzer machine." Tr. at 7. The

The probable cause affidavit states the result of the test, but the affidavit was not admitted at the hearing on Upchurch's petition. 2 Indiana Code Section 9-30-6-7 provides in relevant part, "If a person refuses to submit to a chemical test, the arresting officer shall inform the person that refusal will result in the suspension of the person's driving privileges."

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evidence ticket printed by the machine stated "SUBJECT SAMPLE INVALID." 3 Id. at 8. The officer told Upchurch that she was not blowing hard enough. Upchurch informed the officer that she had asthma, although she had not complained of breathing difficulties prior to this time. The officer replied that anyone can take the test, even someone with emphysema. The officer again read Upchurch the implied consent law. At 5:09, Upchurch attempted to take a second breath test. This evidence ticket also stated "SUBJECT SAMPLE INVALID." Id. The officer did not offer Upchurch an alternative chemical test for ethanol or perform the breath test on another instrument. The officer arrested Upchurch. On December 20, 2004, the State charged Upchurch with operating a vehicle while intoxicated in a manner that endangered another person, a class A misdemeanor. 4 On February 14, 2005, Upchurch filed a verified petition for judicial finding of no refusal. On March 18, 2005, a hearing was held on Upchurch's petition. Upchurch presented a videotape depicting the administration of the breath test at the jail and a letter in which her doctor confirmed that she has asthma and indicated that the powder released by the cartridge that is fired when an airbag is deployed could cause an asthma attack. On April 25, 2005, the trial court denied the petition. On May 5, 2005, Upchurch filed a motion to reconsider. On May 16, 2005, the trial court denied the motion. Upchurch appeals.

We regret that neither this evidence ticket nor the second evidence ticket were included in the record provided to us. On appeal, the State does not dispute that both tickets stated "SUBJECT SAMPLE INVALID." The record reveals that the evidence tickets were contained in the court file and that the parties stipulated that they were the original tickets. Tr. at 5. Upchurch testified that the evidence tickets stated "SUBJECT SAMPLE INVALID," and the State did not object. Id. at 8.
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Ind. Code

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