It was back in 2011 or 2012 when a local man hired me to represent him in defense of a drunk driving charge pending in the East Chicago City Court. Given the fact that my client, “Gary,” took (and failed) a breathalyzer test at the ECPD, I knew that I had to visit the Circuit Court Clerk in Crown Point. It is the Clerk who maintains records of the periodic inspection of the breath test devices (here a BAC Datamaster) and of the certification and recertification of the operators. I have found over a few decades of double checking that the Department of Toxicology on-site inspections seem to be done on schedule each and every time. But that is no reason to stop checking. The regularity of operator recertification is inherently less reliable in that it is left up to the cop. If Officer Smith’s certification should expire after two years without a timely renewal, the only real consequence is that Officer Smith needs to stop administering the breath tests. But what if he doesn’t stop?
For my drunk driving client “Gary” I visited the Clerk. The BAC Datamaster had been inspected on schedule. On the other hand, it appeared that the operator’s certification had expired nearly two months prior to his administration of a breath test to “Gary.” What does that mean in real terms?
IC 9-30-6-5(d) confirms that the results of a “chemical” test for breath analysis are not admissible if the test operator is not approved under the rules of the Department of Toxicology. On another level this means that the court’s ex parte determination of probable cause was made upon BAC evidence tendered fraudulently. It also means that the BMV suspension of driving privileges (for breath test failure) was the product of the same evidence tendered fraudulently. What’s a lawyer to do?
I filed a Motion to Exclude Chemical Test Results and for Other Relief (including outright dismissal). The test results were excluded after an evidentiary hearing at which the test operator testified under oath. So what was his excuse?
The test operator testified that he knew of the expiration of his certification and that he continued performing breath tests because no one stopped him (until I did). It was not easy wringing this admission out of the test operator. He should not be congratulated for candor about his misconduct. Who is this guy?
The test operator who knowingly continued performing BAC testing after the expiration of his certification resulting in wrongful findings of probable cause, wrongful license suspensions, and (probably) tainted convictions was none other than HECTOR ROSARIO, East Chicago’s new Chief of Police. Knowing that his certification as an operator had expired, HECTOR ROSARIO continued to administer breath tests because: he could; no one had yet stopped him; it was convenient; and he had no scruples against deceiving the court or violating rights of the accused. He brought discredit upon himself, the ECPD, and the East Chicago City Court. His reward was appointment to the high office of Chief of Police. The story of “Chief” HECTOR ROSARIO has now begun and will not end well. Remember that you read it here.
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