By Joe Gerrety, Journal and Courier

West Lafayette businessman Gregg S. Murphy's drunken driving case appears headed for the Indiana Court of Appeals. The only question is whether the appeal will occur before or after his trial.

Judge Mike Morrissey on Thursday denied Murphy's motion to suppress evidence, ruling that the April 18, 2002, sobriety checkpoint where Murphy was arrested was constitutionally sound.

The court "does not find that the checkpoint is rendered illegal due to ineffectiveness, excessive intrusion to drivers, or inappropriate discretion of officers in conducting the checkpoint," Morrissey wrote in his three-page order Thursday.

Morrissey listened to seven hours of testimony during a hearing Wednesday in which Murphy's attorneys, Nick Deets and Matt Sandy, challenged the constitutionality of sobriety checkpoint procedures used by the West Lafayette Police Department.

Attorneys for Murphy, co-owner of University Inn and Conference Center and Holiday Inn Select City Centre, argued that the checkpoint did not meet six criteria the Indiana Supreme Court established for determining whether a sobriety checkpoint is legal.

The Supreme Court set the standard in a March 2002 ruling in State of Indiana vs. Gerschoffer, the month before the sobriety checkpoint that netted Murphy.

"I respect Judge Morrissey," Deets said. "I think he's a good judge. We just respectfully disagree with him on this issue."

Deets said Murphy must decide whether to seek an interlocutory appeal of Morrissey's ruling -- which could put the case on hold for a year -- or proceed to trial.

If the case goes to trial, Deets said, he'll probably have to seek a change of venue because of publicity surrounding Murphy's history of four drunken driving arrests since 1996. Two of those arrests have resulted in convictions thus far.

"It's clear at this point that Mr. Murphy can't get a fair trial in Tippecanoe County," Deets said.

Deputy prosecutor Jody Donaldson, who argued the suppression issue before Morrissey and will prosecute the case at trial, is confident the sobriety checkpoint will withstand an appeal based on the Gerschoffer criteria.

"Absolutely. I believe more than sufficient evidence was put on to make it clear to the Court of Appeals that this satisfies supreme court standards,"
Donaldson said. The "West Lafayette Police Department took every precaution, in light of Gerschoffer, to make sure we wouldn't have a problem with it."

Murphy was stopped about 10:30 p.m. the Thursday night of the sobriety checkpoint on Sagamore Parkway at Nighthawk Drive.

After police smelled alcohol and saw a half-empty bottle of vodka on the floor of his car, they administered a portable breath test and later a Datamaster breath test at police headquarters. The test showed Murphy had a blood-alcohol content of 0.19 percent, more than twice Indiana's legal limit of 0.08 percent.

Murphy is charged with a Class D felony. If convicted, he could face six months to three years in jail.