ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
J.J. PAUL STEVE CARTER
Voyles, Zahn, Paul, Hogan & Merriman Attorney General of Indiana
CHRISTOPHER C.T. STEPHEN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STEVEN A. FIELDS, )
vs. ) No. 73A01-0306-CR-230
STATE OF INDIANA, )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Russell J. Sanders, Judge
Cause No. 73D02-0206-CM-741
April 28, 2004
OPINION - FOR PUBLICATION
Steven Fields appeals his conviction after a bench trial for operating a vehicle
with a blood alcohol content greater than .08%, a Class C misdemeanor.
Fields raises the following two issues for our review, which we restate as
1. Whether the trial court properly admitted evidence of the chemical breath test results;
2. Whether the State presented sufficient evidence to support Fieldss conviction.
Facts and Procedural History
On June 25, 2002, Shelby County Sheriffs Deputy James Lacy stopped Fields in
his vehicle for exceeding the posted speed limit. When he approached the
vehicle, Deputy Lacy detected the odor of an alcoholic beverage. Deputy Lacy
also observed that Fields had bloodshot eyes and his speech was slow and
deliberate. Deputy Lacy asked Fields to step out of his vehicle, and
Fields complied. Deputy Lacy then asked Fields whether he had anything in
his mouth. Fields stated that he had chewing tobacco in his mouth.
The chewing tobacco was a fine grind, similar to coffee grounds, and
Fields testified that it was the same chewing tobacco he had in his
mouth when he was consuming alcohol earlier that evening. Deputy Lacy asked
Fields to remove the tobacco, so Fields put his finger in his mouth
and raked the tobacco out through the side of his mouth. Fields
was able to remove some, but not all, of the chewing tobacco from
his mouth. This occurred at approximately 11:10 p.m. that evening.
Without doing a visual check of Fieldss mouth, Deputy Lacy administered a portable
breath test (PBT), which Fields failed. Deputy Lacy then asked Fields to
perform three sobriety tests, all of which he failed. At approximately 11:35
p.m., about twenty-five minutes after Fields removed the chewing tobacco from his mouth,
Deputy Lacy administered a chemical breath test, which reported Fieldss blood alcohol content
The State charged Fields with operating a vehicle while intoxicated endangering a person
and operating a vehicle while intoxicated with a blood alcohol content greater than
.08%. Fields filed a motion to suppress evidence of the breath test
results, but after a hearing the trial court denied his motion. After
a bench trial in which the parties incorporated the testimony from the suppression
hearing into the trial record, the trial court found Fields guilty of operating
a vehicle with a blood alcohol content greater than .08%.See footnote Fields now
appeals. Additional facts will be provided as necessary.
Discussion and Decision
I. Admission of Evidence of Breath Test Results
A. Standard of Review
Results of chemical breath tests are not admissible if the test operator, test
equipment, chemicals used in the test, or techniques used in the test have
not been approved in accordance with the rules adopted by the Department of
Toxicology. Ind. Code § 9-30-6-5(d). The admission of chemical breath test
results is left to the sound discretion of the trial court and will
be reviewed for an abuse of discretion.
State v. Molnar, 803 N.E.2d
261, 265 (Ind. Ct. App. 2004). Because the State is the party
offering the results of the breath test, it has the burden of establishing
the foundation for admitting the results. Id. Therefore, the State must
set forth the proper procedure for administering a chemical breath test and show
that the operator followed that procedure. Id.
B. Twenty-minute Deprivation Period
The procedure for administering a chemical breath test, as promulgated by the Department
of Toxicology in the Indiana Administrative Code, is described in relevant part, The
person to be tested must have had nothing to eat or drink, must
not have put any foreign substance in his or her mouth or respiratory
tract, and must not smoke within twenty (20) minutes prior to the time
a breath sample is taken. Ind. Admin. Code tit. 260, r. 1.1-4-8(1).
Fields contends the procedure Deputy Lacy used in administering a chemical breath
test to Fields was not proper because Fields had chewing tobacco residue remaining
in his mouth when Deputy Lacy administered the chemical breath test. The
State counters that the testing procedure approved by the Department of Toxicology required
only that Fields not have actually put anything into his mouth during the
twenty-minute observation period; whether Fields already had something in his mouth when the
twenty-minute period began was irrelevant.
1. Indiana Caselaw Interpreting the Meaning of Put
In State v. Albright, 632 N.E.2d 725 (Ind. 1994), an officer administered a
breath test to the defendant and subsequently noticed that the defendant was chewing
on peanut fragments that were hidden in his mouth. The officer immediately
administered a second breath test and then instructed the defendant to rinse out
his mouth. After the defendant rinsed out his mouth, the officer waited
over twenty minutes before administering a third breath test. The third test
showed the defendants blood alcohol content as .18%. Our supreme court, in
upholding the procedure used by the officer, stated that a nearly identical rule,
Indiana Administrative Code, title 260, r. 1.1-4-4 (1993),
[r]equire[d] a twenty minute waiting period prior to the administration of the Intoxilyzer
during which time the subject may not have had any foreign substance
in his mouth. This requirement relates to the reliability of the results,
because foreign substances may alter the blood-alcohol content reading.
Albright, 632 N.E.2d at 725 (emphasis added). 2. Chewing Tobacco Residue in Mouth
In Guy v. State, 805 N.E.2d 835 (Ind. Ct. App. 2004), an officer
administered a chemical breath test to the defendant, who had a metal stud
(tongue ring) in her tongue at the time of the test. The
defendants test results indicated a .11% blood alcohol concentration, and the officer placed
the defendant under arrest for operating while intoxicated. After the trial court
denied the defendants motion to suppress evidence of the test results, a panel
of this court reversed the trial courts denial because the defendant had a
foreign substance (the tongue ring) in her mouth during the breath test.
Id. at 837. Relying on Albright, the panel concluded that the word
put as it appears in 260 IAC 1.1-4-8(1) means present and that a
person to be tested must not have had any foreign substance present in
his or her mouth within twenty minutes prior to the time a breath
sample is taken. Id. at 838-39.
In State v. Molnar, 803 N.E.2d 261 (Ind. Ct. App. 2004), an officer
stopped a driver for speeding in his vehicle. The officer smelled alcohol
and administered sobriety tests. The driver had chewing tobacco (which was finely
ground) in his mouth at the time. The officer asked the driver
to spit out his chewing tobacco. The driver complied, using his finger
to rake out the tobacco. The officer then looked inside the drivers
mouth and did not see any tobacco residue. After the twenty-minute observation
period, the driver submitted to a chemical breath test, which reported his blood
alcohol content as .12%. Id. at 262-63.
The Molnar court agreed with the States argument in that case that 260
IAC 1.1-4-8 does not require that a persons mouth be free from foreign
substances; rather, the regulation only requires that a person not place a foreign
substance in his mouth up to twenty minutes prior to taking a breath
test. Molnar, 803 N.E.2d at 265-66. The Molnar court also stated,
however, that the twenty-minute rule clearly contemplates that a substance put in the
mouth will be removed more than twenty minutes before the test is administered;
what we do not conclude is that the rule requires all possible residue
from the substance to be removed as well. Id. at 266 n.1
(emphasis added). The Molnar court additionally stated the following: This is
not to say that a defendant would be precluded from presenting evidence at
trial that a test result was actually skewed by residue remaining in his
or her mouth. Here, no such evidence was presented. Id. at
266 n.2. Because the defendant had removed the chewing tobacco from his
mouth at least twenty minutes prior to taking the chemical breath test, the
panel reversed the trial courts decision to suppress evidence of the test results.
Id. at 267.
We respectfully disagree with Molnars interpretation of 260 IAC 1.1-4-8(1) that the regulation
only requires that a person not place any foreign substance in his mouth
within the twenty-minute deprivation period. In light of our supreme courts holding
in Albright, we conclude that 260 IAC 1.1-4-8(1) requires that a person must
not have had any foreign substance in his mouth within twenty minutes prior
to submitting to a chemical breath test.
See footnote Nevertheless, we do accept
reasoning as to why the twenty-minute deprivation period is important.
[T]he obvious reason for the twenty-minute rule is to prevent a foreign substance
from affecting the breath test results. The Department of Toxicology determined that
twenty minutes is a long enough period to sufficiently mitigate the contaminating effect
of anything contained in a subjects mouth once the matter is removed, including
any residue remaining in the mouth. Thus, we must rely on the
expertise of the Department and trust that it decided twenty minutes is a
sufficient waiting period to protect the integrity and accuracy of the test results.
To hold otherwise would be to read a new meaning into the
regulation and to essentially mandate that all subjects who have something in their
mouths and are asked to remove the matter in preparation for a breath
test to be administered rinse their mouths to remove any residue that might
remain. This is not contemplated by the regulation and must not be imposed
by judicial construction.
Molnar, 803 N.E.2d at 266-67 (footnotes omitted).
In the case at hand, the State satisfied its burden to show that
the chemical breath test was properly administered. Deputy Lacy instructed Fields to
remove the chewing tobacco from his mouth. Fields raked the chewing tobacco
out of his mouth, and Deputy Lacy waited at least twenty minutes after
Fields removed the tobacco from his mouth before administering the chemical breath test.
At the suppression hearing, Fields presented expert testimony that chewing tobacco present in
the mouth during the twenty-minute deprivation period could affect the breath test results.
However, Fields failed to present sufficient evidence that if tobacco residue did
remain in Fieldss mouth during the twenty-minute deprivation period, the amount of residue
that remained affected the outcome of the chemical breath test. See Molnar,
803 N.E.2d at 266-67 (holding defendant failed to present sufficient evidence that tobacco
residue that remained in defendants mouth affected breath test results so as to
render evidence of the results inadmissible where defendant removed chewing tobacco from his
mouth at least twenty minutes prior to submitting to chemical breath test).
C. Certification of DataMaster Machine
Fields next contends the certification of the DataMaster machine and the results of
Fieldss chemical breath test were inadmissible because the Department of Toxicology failed to
certify the DataMaster machine in accordance with its own regulations. The Department
of Toxicology sets the standards and regulations for the selection and certification of
breath test equipment and chemicals. Ind. Code § 9-30-6-5(a)(2). Such certificates
are admissible and constitute prima facie evidence that the equipment or chemical was
inspected and approved by the Department of Toxicology and was in proper working
condition on the date of the chemical breath test if the approval was
given not more than 180 days before the chemical breath test. Ind.
Code § 9-30-6-5(c)(2). Results of the chemical breath test are not admissible,
however, if the test equipment or chemicals used have not been approved in
accordance with the rules promulgated by the Department of Toxicology. Ind. Code
§ 9-30-6-5(d). According to the rules promulgated by the Department of Toxicology,
chemical breath test equipment shall meet the following standards:
(1) Tests shall be made using known ethanol-water or ethanol-gas solutions, approved
by the director of the state department of toxicology of Indiana University School
of Medicine, to simulate an ethanol-breath solution.
(2) Such test results shall not deviate more than minus eight percent
(-8%) from the known alcohol content of the ethanol-water or ethanol-gas solution, for
example, 0.10% w/v solution of ethanol in water shall test within the range
of 0.092% to 0.100%. No test result for the purpose of certification
shall exceed the known ethanol content of the test solution.
(3) For the purpose of inspecting the breath test equipment, the analytical result
shall be expressed to the third decimal place.
Ind. Admin. Code tit. 260, r. 1.1-2-1(e).
Fields argues that the Department of Toxicology failed in the following three ways
to comply with their own regulations during its inspection of the DataMaster machine
used to produce Fieldss chemical breath test results: (1) the test solution
used did not have a known alcohol content; (2) the test results exceeded
the known ethanol content of the test solution; and (3) the results were
not expressed to the third decimal place in some tests.
The State counters that Indiana Code section 9-30-6-5 stands for the proposition that
once the proper foundation has been laid, the chemical test results are presumed
admissible. The State further argues that this presumption is rebuttable by the
defendant, but any challenge to the reliability of the test goes to the
weight of the evidence and not to its admissibility. See State v.
Rumple, 723 N.E.2d 941, 946 n.1 (Ind. Ct. App. 2000) (holding trial court
properly admitted into evidence certificate of inspection and compliance of DataMaster machine, where
defendant attacked testing procedures used to inspect and approve machine, because certificate constituted
prima facie evidence that inspection and approval complied with Department of Toxicology regulations
and defendants challenge to the contrary raised an issue of fact for the
In response, Fields directs us to Wray v. State, 751 N.E.2d 679 (Ind.
Ct. App. 2001), superseded by regulation on other grounds in State v. Lloyd,
800 N.E.2d 196 (Ind. Ct. App. 2003). In Wray, an officer arrested
a driver after the drivers chemical breath test result exceeded the legal limit.
At trial, the State sought to introduce the officers breath test operator
certification into evidence, but the defendant objected, arguing that the certification was hearsay
and did not fall within the public records hearsay exception because it lacked
trustworthiness since the officer testified he had not completed the breath test operator
training promulgated by the Department of Toxicology. The State countered that the
certificate was admissible under Indiana Code section 9-30-6-5(c).
See footnote The trial court overruled
the objection, and the defendant appealed.
Id. at 681.
We did not address whether the certificate was inadmissible due to its untrustworthiness,
but instead held the trial court abused its discretion in admitting the certificate
under the statute because, according to the statute, only certificates issued in accordance
with the procedures promulgated by the Department of Toxicology may be admitted into
evidence. Id. at 683. Therefore, Fields argues that, under Wray, the
trial court abused its discretion by admitting the certificate and the test results
in this case because the Department of Toxicology did not follow their own
procedures outlined in Title 260 of the Indiana Administrative Code.
Wray, however, is distinguishable from the case at hand. In Wray, there
was uncontradicted evidence presented that the operator was not properly certified under the
Department of Toxicology regulations. In the instant case, although Fields presented expert
testimony that the Department of Toxicology did not follow its own regulations in
inspecting and approving of the DataMaster machine used in this case, the State
presented the testimony of Dr. Peter Method, the Associate Director of the Department
of Toxicology. Dr. Method testified that the testing procedures used to inspect
and approve of the DataMaster machine used for Fieldss breath test did in
fact comply with the testing procedures promulgated by the Department of Toxicology.
Furthermore, Fields did not present any evidence that the particular DataMaster machine used
by Deputy Lacy to administer a breath test to Fields was not operating
properly. Presenting one experts testimony that the certification of the DataMaster machine
may not have complied with the Department of Toxicologys regulations is not enough;
otherwise, every breath test would be questionable. Instead, Fields was required to
show more to rebut the presumption that the DataMaster machine was working properly.
Therefore, the trial court did not abuse its discretion in admitting the
certificate of inspection and compliance or the chemical breath test results into evidence.
II. Sufficiency of the Evidence
Fields argues that the evidence presented at trial was insufficient to sustain his
conviction. We disagree.
A. Standard of Review
In reviewing sufficiency of the evidence claims, we do not reweigh the
evidence or assess the credibility of witnesses. Williams v. State, 798 N.E.2d
457, 459 (Ind. Ct. App. 2003). Instead, we review the evidence and
reasonable inferences supporting the conviction to determine whether substantial evidence of probative value
exists to support the judgment. Id.
Indiana Code section 9-30-5-1(a) states:
A person who operates a vehicle with an alcohol concentration equivalent to at
least eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of
alcohol per . . . two hundred ten (210) liters of the persons
breath; commits a Class C misdemeanor.
The State presented sufficient evidence to support Fieldss conviction. The evidence most
favorable to the judgment showed that Deputy Lacy observed Fields traveling in excess
of the posted speed limit. When Deputy Lacy pulled Fields over, Fields
smelled of alcohol and had bloodshot eyes. Fields failed three sobriety tests
and a PBT that Deputy Lacy administered at the scene. At the
station, Deputy Lacy, a certified breath test operator, administered a chemical breath test
to Fields on a DataMaster machine that had been inspected and certified by
the Department of Toxicology within 180 days of the test. The results
of the chemical test indicated that Fields had a blood-alcohol content at .12%.
Therefore, the State presented sufficient evidence to show that Fields operated a
vehicle with a blood alcohol content greater than .08%.Conclusion
Because we hold the trial court did not abuse its discretion in admitting
the chemical breath test results, and the State presented sufficient evidence to support
Fieldss conviction, we affirm the judgment of the trial court.
BAKER, J., and RILEY, J., concur.
We heard oral argument on this case on March 31, 2004, at
Indiana State University in Terre Haute. We thank the attorneys for their
capable advocacy and Indiana State University for their gracious reception.
Fields requests that we take judicial notice of the scientific fact that
a twenty-minute deprivation period is a requirement to ensure a reliable chemical breath
test. Because the regulations promulgated by the Department of Toxicology already require
a twenty-minute deprivation period, we will not address this issue.
Footnote: All other charges against Fields were dropped, pursuant to an agreement between
the parties, in exchange for Fields waiving his right to trial by jury.
Footnote: The rule stated, The person to be tested must have had nothing
to eat or drink, must not have put any foreign substance in his/her
mouth or respiratory tract, and must not smoke within twenty (20) minutes prior
to the time a breath sample is taken. Ind. Admin. Code tit.
260, r. 1.1-4-4 (1993).
Footnote: In holding 260 IAC 1.1-4-8(1) requires that a person not have had
any foreign substance in his mouth at least twenty minutes prior to submitting
to a breath test, we do not hold a person must remove objects
from his mouth that are meant to be there, such as bridges, caps,
artificial teeth, etc.
Footnote: The statute reads:
(c) Certified copies of certificates issued in accordance with rules adopted under subsection
(1) are admissible in a proceeding under this chapter, IC 9-30-5, IC 9-30-9,
or IC 9-30-15;
(2) constitute prima facie evidence that the equipment or chemical:
(A) was inspected and approved by the department of toxicology on the date
specified on the certificate copy; and
(B) was in proper working condition on the date the breath test was
administered if the date of approval is not more than one hundred eighty
(180) days before the date of the breath test;
(3) constitute prima facie evidence of the approved technique for administering a breath
(4) constitute prima facie evidence that the breath test operator was certified by
the department of toxicology on the date specified on the certificate.
Ind. Code § 9-30-6-5(c).