Area lawyers weigh in on challenge to breath tests

2013-03-17T00:00:00Z 2013-03-17T22:47:06Z Area lawyers weigh in on challenge to breath testsSusan Brown susan.brown@nwi.com, (219) 662-5325 nwitimes.com
March 17, 2013 12:00 am  • 

A prominent attorney is suggesting a failure by the Indiana Department of Toxicology to update its rules on the certification breath test equipment may have rendered results invalid since at least Jan. 1.

Indianapolis attorney John Tompkins has launched a number of court cases in the Marion County area on that belief.

Neither Tompkins nor a representative of the state toxicology department could be reached for comment.

But Tompkins' position on the issue raised opinions from Northwest Indiana attorneys.

Valparaiso attorney Larry Rogers said Tompkins is arguing that, because the Department of Toxicology did not do what it was supposed to do to certify breath test machines, the state cannot lay a foundation to get any breath test into evidence after Jan. 1.

The changes in certification of equipment and operations were ordered by the Legislature in the wake of criticism of the performance of the department, which at that time was a division of Indiana University.

"A couple of years ago, it surfaced there were some real shoddy practices (including) reporting false results, mostly for drug tests," Rogers said.

Lawmakers subsequently made the agency a separate department of government, ordering changes in its certification methods, Rogers said.

The agency had until July 1 of last year to make those changes but failed to do, taking away the agency's authority and rendering breath test results invalid as of Jan. 1 of this year, according to Rogers.

"The motion is well-taken," Rogers said of Tompkins' argument.

Highland attorney Samuel Cappas agrees.

"John Tompkins is well known throughout the state for his defense work on drunk driving," Cappas said. "If he thinks that there is a problem with certifications, there probably is. We will just have to wait and see how the courts rule on it."

Attorney John Vouga, with offices in Lake and Porter counties, said the challenge isn't affecting the way his office handles cases.

"Nothing in our legal opinion is going to change the court's decision on admissibility until there is some kind of legal court decision," he said.

Porter County Prosecuting Attorney Brian Gensel said after consulting with the Indiana Prosecuting Attorneys Council, he believes Tompkins' challenge has no traction.

"It doesn't change anything," Gensel said, adding he expects there will would higher court reviews of any decisions.

Gensel said there have been similar arguments made during the consolidation of government agencies during the Unigov transition downstate.

"The wheel didn't have to be reinvented," Gensel said of the outcomes.

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