Slaughter, J.
A state-police trooper stopped Defendant for a traffic violation. During the stop, the trooper suspected Defendant was intoxicated, so he conducted several field sobriety tests, which Defendant failed. At the trooper’s request, Defendant agreed to take a chemical breath test at a nearby police station. During the first test, Defendant did not blow hard enough, prompting the machine to print an “insufficient sample” warning. The trooper concluded Defendant had refused to take the test, resulting in the suspension of her driving privileges. …
Factual and Procedural History
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The trooper agreed Hurley was “completely cooperative throughout this process”, but he chose not to allow her a second chemical breath test, which would have allowed her up to three more blows. Instead, he signed the machine’s printed ticket, which recorded Hurley’s insufficient sample, and advised he would charge her with a refusal to submit to the test. … The bureau of motor vehicles suspended Hurley’s driver’s license for one year because of her refusal to submit to a breath test.
Hurley objected to the refusal, arguing, first, she could not have refused the breath test because the trooper failed to follow the regulations for administering the test and, second, there was insufficient evidence to support the trooper’s conclusion she had refused it. After a hearing, the trial court upheld the trooper’s decision, and a unanimous Court of Appeals affirmed, Hurley v. State, 56 N.E.3d 127 (Ind. Ct. App. 2016). We grant transfer, thus vacating the Court of Appeals decision, and reverse.
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When the results of an initial chemical breath test yield an “insufficient sample”, the police officer administering the test must offer the subject a second test unless the subject clearly demonstrates a manifest unwillingness to submit to it.
At issue is whether Title 260, Section 2-4-2 of the Indiana Administrative Code—the “Breath-Test Rule”—required the trooper to allow Hurley a second breath test before recording a refusal. We hold the Rule requires an officer to administer a second test after the first returns an insufficient sample unless the subject clearly manifests an unwillingness to take the test. …
A. Hurley challenges the determination that she refused to submit to a chemical test.
… A person whose driving privileges were suspended is entitled to prompt judicial review, … but review is limited to two issues: (i) whether the officer had probable cause to believe the person was operating a vehicle while intoxicated and (ii) whether the person refused to submit to a chemical test …
B. Whether the officer complied with the breath-test rule is relevant to whether the subject refused the test.
The State argues that an officer’s compliance (or not) with a chemical-test protocol is relevant to whether the test results are admissible, but not to whether the test was refused. We disagree. Instead, we approve of decisions from our Court of Appeals holding that a person does not refuse a chemical test if the officer failed to comply with the rules for conducting it. See, e.g., Vetor v. State, 688 N.E.2d 1327, 1329 (Ind. Ct. App. 1997) …
An important corollary to this principle applies here: an officer conducting a chemical breath test must comply strictly with the department of toxicology’s protocol for administering it. See, e.g., Upchurch v. State, 839 N.E.2d 1218, 1221-22 (Ind. Ct. App. 2005) … Without the officer’s strict compliance, the defendant cannot refuse the test—and any suspension of driving privileges premised on refusing the test cannot stand.
C. The breath-test rule presumptively requires a second test.
The department of toxicology’s Breath-Test Rule outlines the proper procedure for a law enforcement officer to administer the test. The department’s regulations appear in Title 260 of Indiana’s administrative code. …
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… We hold the Rule presumptively required the trooper to offer Hurley a second test.
D. A second test is not required if the subject clearly manifests an unwillingness to take the test.
But this presumptive obligation to offer a second test is not absolute. The Rule does not require an officer to administer a second test to a subject who obviously is not cooperating in providing one or more measurable, recordable breath samples. …
A subject who puffs out his cheeks pretending to blow but releases no breath into the device is an easy call. Jaremczuk v. State, 177 Ind. App. 628, 632, 380 N.E.2d 615, 618 (1978). So, too, is the subject who makes no bones about his unwillingness to cooperate. Hatch v. State, 177 Ind. App. 231, 232, 378 N.E.2d 949, 950 (1978) …
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E. The trooper was required to administer a second test on this record because Hurley did not clearly manifest an unwillingness to take it.
The record does not support the State’s argument that “Hurley caused the insufficient sample by refusing to cooperate.” If Hurley had verbally refused to submit to any further testing after the first breath test …; or had pretended to blow into the machine without doing so …; or had repeatedly blocked the machine’s mouthpiece with her upper lip despite warnings that doing so would result in a deficient sample,… she could fairly be described as uncooperative—thus obviating the Rule’s presumptive requirement of a second test. …
But Hurley did none of these things—or anything else clearly constituting a “manifest[] … unwillingness to submit the test.” Burnell, 56 N.E.3d at 1151. As Hurley points out correctly, she voluntarily took a portable breath test at the scene; she agreed to the chemical breath test given at the police station; she submitted to the test; she was never told she wasn’t blowing hard enough or that she needed to blow harder; and the trooper acknowledged “[Hurley] was completely cooperative throughout this process,” and at no point did she “not cooperate with any of [his] instructions.” …
Conclusion
… Because the trooper did not offer Hurley a second test, we reverse the judgment below and remand with instructions to direct the bureau of motor vehicles to vacate its suspension of Hurley’s license and reinstate her driving privileges.
All Justices concur.