Court of Appeals of Indiana | Opinion 49A05-1601-CR-108 | June 30, 2016 Page 1 of 9

ATTORNEYS FOR APPELLANT

Robert D. King, Jr.

David R. Thompson

The Law Office of Robert D. King, Jr., 

P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Keyaunna Hurley,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 30, 2016

Court of Appeals Case No.

49A05-1601-CR-108

Appeal from the Marion Superior 

Court

The Honorable David J. Certo, 

Judge

Trial Court Cause No.

49G12-1510-CM-37573

Bradford, Judge.

Case Summary

[1] On October 20, 2015, Appellant-Defendant Keyaunna Hurley was the subject 

of a traffic stop in Indianapolis. During this traffic stop, the officer at the scene 
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became concerned that Hurley might have been driving under the influence. 

Hurley consented to a chemical breath test after she failed certain field sobriety 

tests. During administration of the certified breath test, Hurley failed to provide 

a sufficient sample. Based on his interactions with and observations of Hurley, 

the officer administering the test was of the opinion that the insufficient sample 

was the result of a lack of cooperation by Hurley. As a result, she was deemed 

to have refused the test. The officer subsequently obtained a warrant for and 

completed a blood draw. 

[2] Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged 

Hurley with two Class A misdemeanors and alleged that Hurley had committed 

a traffic infraction. Hurley requested review of the determination that she had 

refused the chemical breath test (the “refusal determination”). Following a 

hearing, the trial court upheld the refusal determination. Hurley now appeals 

from the denial of her verified petition for judicial finding of no refusal, 

claiming that the evidence was insufficient to sustain the trial court’s 

determination that she refused a breath test. We affirm.

Facts and Procedural History

[3] On October 20, 2015, Indiana State Police Trooper Joshua Graves initiated a 

traffic stop after he observed Hurley commit a traffic violation near the 

intersection of 86th Street and Keystone Crossing in Indianapolis. After Hurley 

failed certain field sobriety tests, Trooper Graves asked Hurley to submit to a 
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chemical breath test.1 Hurley agreed, and was taken to a nearby police station 

for administration of the test. 

[4] Before administering the test, Trooper Graves explained to Hurley that she was 

“going to have to blow as hard as [she could] for as long as [she could]” and

that if, after three attempts, she could not give a complete sample, she would be 

charged with a refusal to take the test. Tr. p. 26. Trooper Graves also 

demonstrated to Hurley what he meant by “blowing as hard as” she could. Tr. 

p. 27. Hurley blew into the machine when instructed to do so, but “did not 

blow a substantial [enough] amount to get a sufficient sample.” Tr. p. 16. 

Hurley repeated the process twice more, both times failing to provide a 

sufficient sample. After the third attempt, the machine printed a ticket showing 

the result of “Insufficient Sample.” Def. Ex. A. Based on his interactions with 

and observations of Hurley, Trooper Graves believed that Hurley “was not 

cooperating.” Tr. p. 27. Hurley was then charged with a refusal to complete 

the test due to a lack of cooperation. Trooper Graves subsequently obtained a 

warrant for and completed a blood draw.

[5] On October 21, 2015, the State charged Hurley with Class A misdemeanor 

operating a vehicle while intoxicated endangering a person and Class A 

misdemeanor operating a vehicle with an alcohol concentration equivalent to 

.15 or more. The State also alleged that Hurley committed the traffic violation 

 

1

 Trooper Graves is a certified chemical test operator who has administered approximately 

thirty tests using the Intox EX/IR II machine. 
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of failure to signal for turn or lane change. On December 3, 2015, Hurley filed 

a Verified Motion for Refusal Hearing Pursuant To Indiana Code section 9-30-

6-10. The trial court conducted a hearing on Hurley’s motion on December 21, 

2015, after which it found “for a refusal.” Appellant’s App. p. 6. This appeal 

follows.

Discussion and Decision

[6] On appeal, Hurley challenges the trial court’s denial of her petition for judicial 

review of the refusal determination, arguing that the evidence is insufficient to 

sustain the refusal determination. A trial court’s denial of an individual’s 

petition for judicial review of a refusal determination is a final appealable 

judgment. Ind. Code § 9-30-6-10(g); Upchurch v. State, 839 N.E.2d 1218, 1220 

(Ind. Ct. App. 2005). Our review of this judgment, however, is limited. 

Upchurch, 839 N.E.2d at 1220.

We can only determine whether the evidence is sufficient as a 

matter of law to support the findings that: (1) the arresting officer

had probable cause to believe that the driver was operating a 

vehicle while intoxicated and (2) the driver refused to submit to a 

chemical test offered by a law enforcement officer after being 

informed of the consequences of such refusal. In doing so, we 

will not weigh the evidence nor judge the credibility of the 

witnesses, and we will consider only the evidence favorable to 

the trial court’s decision. 

Vetor v. State, 688 N.E.2d 1327, 1328 (Ind. Ct. App. 1997) (citing Zakhi v. State, 

560 N.E.2d 683, 686 (Ind. Ct. App. 1990)). The petitioner bears the burden of 
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proving the allegations contained within their petition by a preponderance of 

the evidence. Ind. Code § 9-30-6-10(f); Upchurch, 839 N.E.2d at 1220.

[7] Hurley makes two claims with respect to the sufficiency of the evidence to 

sustain the refusal determination. Hurley first claims that she could not be 

found to have refused the chemical breath test because Trooper Graves failed to 

follow the regulations for administration of the test. Hurley also claims that 

even assuming Trooper Graves properly followed the regulations, the evidence 

is nonetheless insufficient to sustain the refusal determination.

A. Alleged Failure to Follow Proper Administration 

Procedures

[8] In support of her claim that she could not be found to have refused the chemical 

breath test because Trooper Graves failed to follow the regulations for 

administration of the test, Hurley relies on our opinion in Upchurch. Hurley’s 

reliance on Upchurch, however, is unavailing. 

[9] In Upchurch, we considered whether an arresting officer failed to follow the 

regulation for administration of a chemical breath test that was in effect at the 

time. That regulation provided, in relevant part, as follows: 

(7) If the EVIDENCE TICKET displays one (1) of the following 

messages, the test is not valid; proceed as instructed:

....

(B) If “SUBJECT SAMPLE INVALID” is printed on the 

EVIDENCE TICKET, return to step 1 (subdivision 1) and 

perform a second breath test. If “SUBJECT SAMPLE 

INVALID” is printed on the EVIDENCE TICKET of this 
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second breath test, obtain an alternate chemical test for ethanol or 

perform the breath test on another evidentiary breath test instrument.

Upchurch, 839 N.E.2d at 1221 (citing 260 Ind. Admin. Code § 1.1-4-8) 

(emphasis and ellipsis in original). The results to the test administered by the 

arresting officer twice read “SUBJECT SAMPLE INVALID.” Id. at 1219-20. 

The arresting officer noted these results but failed to obtain an alternate 

chemical test or perform a breath test on a different test instrument. Id. at 1220. 

We concluded on appeal that because the arresting officer did not comply with 

the regulation’s requirements that he obtain an alternative chemical test or 

perform a test on a different test instrument, Upchurch could not be found to 

have refused a breath test. Id. at 1221. We therefore reversed the trial court’s 

denial of Upchurch’s petition for judicial finding of no refusal. Id. at 1221-22. 

[10] It is of note, however, that the section of the Administrative Code which 

applied in Upchurch is different than the section of the Administrative Code 

which applies here. Section 2-4-2(b)(5) of Title 260 of the Indiana 

Administrative Code, which applies to the instant matter, provides as follows:

If “Insufficient Sample” or “Time Out” is printed on the 

instrument report, perform an additional breath test, beginning 

with STEP TWO and proceeding through STEP TWELVE. If 

“Insufficient Sample” or “Time Out” is printed on the instrument 

report after this additional breath test:

(A) obtain an alternate chemical test for ethanol;

(B) perform a breath test on another breath test 

instrument; or

(C) if a numerical value for the subject’s breath 

ethanol concentration is printed on any instrument 
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report, check the instrument report for the correct 

date and time and sign the instrument report where 

indicated.

If an “Insufficient Sample” or “Time Out” message is caused by 

the lack of cooperation of the subject, the breath test operator 

should record that the test was refused and, if a numerical value 

for the subject’s breath ethanol concentration is printed on any 

instrument report, check the instrument report for the correct 

date and time and sign the instrument report where indicated.

[11] The record reveals that Trooper Graves did not obtain an alternate chemical 

test or perform a breath test on another breath test instrument after receiving the 

“Insufficient Sample” message. The record further reveals, however, that 

Trooper Graves believed that the “Insufficient Sample” message was caused by 

a lack of cooperation by Hurley. Hurley correctly asserts that Section 2-4-

2(b)(5) of Title 260 of the Indiana Administrative Code indicates that an officer

administrating a test should obtain an alternate chemical test for ethanol or 

perform a breath test on another breath test instrument if the words 

“Insufficient Sample” are printed on the instrument report. However, Hurley 

fails to recognize that Section 2-4-2(b)(5) of Title 260 of the Indiana 

Administrative Code further states that if an “Insufficient Sample” message is 

deemed to be caused by the lack of cooperation of the subject, “the breath test 

operator should record that the test was refused.” Given that the record 

establishes that Trooper Graves believed that the “Insufficient Sample” message 

was the result of a failure to cooperate by Hurley, we conclude that Trooper 

Graves’s decision to record that Hurley refused the test fell within the statutory 
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parameters set forth in Section 2-4-2(b)(5) of Title 260 of the Indiana 

Administrative Code.

B. Sufficiency of the Evidence

[12] During the hearing on Hurley’s motion, Trooper Graves testified that he was of 

the opinion that Hurley did not cooperate during his administration of the 

chemical breath test. Specifically, Trooper Graves testified that he explained to 

Hurley that she was “going to have to blow as hard as [she could] for as long as 

[she could]” and that if, after three attempts, she could not give a complete 

sample, she would be charged with a refusal to take the test. Tr. p. 26. Trooper 

Graves further testified that he demonstrated to Hurley what he meant by 

“blowing as hard as” she could. Tr. p. 27. Despite Trooper Graves’s 

instructions and demonstration, Hurley failed to give a complete sample. 

Judging Hurley’s demeanor and actions, Trooper Graves came to the opinion 

that Hurley “was not cooperating.” Tr. p. 27. Trooper Graves’s testimony 

presents sufficient evidence to sustain the refusal determination.

[13] In arguing to the contrary, Hurley claims that the evidence is insufficient to 

sustain the refusal determination because she agreed to take the test, she 

submitted to the test, she cooperated with Trooper Graves’s instructions, and 

she was never told by Trooper Graves that she was not blowing hard enough or 

needed to blow harder. Hurley’s claim in this regard, however, is effectively an 

invitation for this court to reweigh the evidence, which we will not do. See 

Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Because we conclude that the 
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evidence is sufficient to sustain the refusal determination, we affirm the 

judgment of the trial court. 

[14] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.