ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SAMUEL S. SHAPIRO STEVE CARTER
Bloomington, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
LAURA E. GIBSON, )
vs. ) No. 53A04-0202-CR-74
STATE OF INDIANA, )
APPEAL FROM THE MONROE CIRCUIT COURT VI
The Honorable David Welch, Judge
Cause No. 53C06-0105-CM-2257
October 25, 2002
OPINION - FOR PUBLICATION
Laura Gibson (Gibson) is charged with operating while intoxicated,
a Class A misdemeanor,
in Monroe Circuit Court. Gibson filed a motion to suppress her refusal
to submit to a chemical test. The motion was denied. Gibson
has filed this interlocutory appeal arguing that the trial court abused its discretion
when it denied Gibsons motion to suppress her refusal to submit to a
Facts and Procedural History
On May 3, 2001, at approximately 2:43 a.m., Officer Brian James (Officer James)
of the Bloomington Police Department observed Gibson driving erratically on an expired license
plate. Officer James activated his emergency lights and initiated a traffic stop.
Noting her slurred speech, bloodshot eyes, and erratic driving, Officer James believed
that Gibson was operating a vehicle while intoxicated, and he arrested Gibson after
she failed four field dexterity tests. When they returned to the police
department, Officer James gave Gibson the opportunity to submit to a breathalyzer test,
and she verbally agreed to do so. However, she also continuously begged
Officer James to allow her to leave.
When taking a breathalyzer test, the testing equipment, once calibrated, requires an adequate
sample of the examinees breath to properly test for blood alcohol concentration.
The individual is instructed to blow into a mouthpiece. If the examinee
blows into the mouthpiece with a sufficient amount of force, the machine produces
an even tone to indicate the adequacy of the sample.
Gibsons first and second attempts to take the breathalyzer test resulted in a
reading of incomplete because she failed to produce an even tone.
James allowed Gibson to make a third attempt, but that attempt also ended
in a reading of incomplete. During each of the three attempts to
take the breathalyzer test, Gibson blew into the machine twice, providing a total
of six breath samples, all of which were inadequate. Officer James determined
that Gibson was not cooperating, and he recorded a refusal after the third
test despite Gibsons plea to take the test a fourth time.
Gibson was charged with operating while intoxicated, a Class A misdemeanor, on May
4, 2001. On September 28, 2001, Gibson filed a motion to suppress
the determination that she refused a chemical test arguing that her inability to
provide a sufficient breath sample was due to the operators error in failure
to follow procedures approved by the department of toxicology. Appellants App. p.
47. After the trial court held a hearing on the motion, it
was denied. Gibson then requested that the trial court certify its order
denying her motion to suppress for interlocutory appeal. The trial court granted
her request, and on March 20, 2002, our court accepted jurisdiction of this
Discussion and Decision
Gibson argues that the trial court abused its discretion when it denied her
motion to suppress her refusal to submit to a breathalyzer test because the
arresting officer failed to follow the State Department of Toxicologys Approved Method for
operation of a breathalyzer test.
The admissibility of evidence is within the
sound discretion of the trial court, and we will not disturb its decision
absent a showing that the court abused that discretion. Williams v. State,
754 N.E.2d 584, 587 (Ind. Ct. App. 2001), trans. denied. When we
review a motion to suppress, we will not reweigh the evidence, but will
determine if there is substantial evidence of probative value to support the trial
courts ruling. Camp v. State, 751 N.E.2d 299, 301 (Ind. Ct. App.
2001), trans. denied. We look to the totality of the circumstances and
consider all uncontroverted evidence together with conflicting evidence that supports the trial courts
decision. Id. The trial courts judgment will be affirmed if it
is sustainable on any legal grounds apparent in the record. Id.
A person who operates a vehicle in Indiana impliedly consents to submit to
a chemical test. Parks v. State, 752 N.E.2d 63, 65 (Ind. Ct.
App. 2001) (citing Ind. Code § 9-30-6-1 (1998)). A persons refusal to
submit to a chemical test is admissible into evidence during a proceeding against
that person for operating a vehicle while intoxicated. Id. (citation omitted).
However, breathalyzer test results are admissible only if the test operator, test equipment,
chemicals used in the test, if any, and the test techniques have been
approved by the department of toxicology. State v. Johanson, 695 N.E.2d 965,
966-67 (Ind. Ct. App. 1998) (citing Ind. Code § 9-30-6-5 (1992 & Supp.
2002)). Failure to follow the techniques renders the breath tests results inadmissible.
Id. (citation omitted).
The procedure for administering a breathalyzer test is described in Title 260 of
the Indiana Administrative Code, rule 1.1-4-8, and it provides in pertinent 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.
The green LED on the instrument display must be lighted.
Depress the run button, enter the password, and insert the EVIDENCE TICKET.
Follow the displayed request for information, and enter by the keyboard.
When the PLEASE BLOW appears, place a new mouthpiece in the breath tube;
subject must deliver a breath sample.
When the printer stops, remove the EVIDENCE TICKET from the instrument and check
the EVIDENCE TICKET for the numerical alcohol SUBJECT SAMPLE and correct date and
If the EVIDENCE TICKET displays one (1) of the following messages, the test
is not valid; proceed as instructed:
. . .
(D) If "SUBJECT SAMPLE, INCOMPLETE" is printed on the EVIDENCE TICKET, return
to step 2 (subdivision (2)) and perform a second breath test. If "SUBJECT
SAMPLE, INCOMPLETE" is printed on the EVIDENCE TICKET of this second breath test,
obtain [sic] alternate chemical test for ethanol or perform the breath test on
another evidentiary breath test instrument. However, if the "SUBJECT SAMPLE, INCOMPLETE" was caused
by the lack of cooperation by the subject, the breath test operator should
record that the test was refused.
Ind. Admin. Code tit. 260, r. 1.1-4-8 (2000) (emphasis added).
Gibson argues that Officer James failed to comply with the approved method for
giving a breathalyzer test because after the second test resulted in a reading
of incomplete he should have obtained an alternate chemical test or performed the
test on another evidentiary breath test instrument. Gibson contends that strict compliance
with the approved method is required and deviation from that method requires the
suppression of any evidence of refusal to submit to a chemical test.
In support of this argument, Gibson relies on Bowman v. State, 564 N.E.2d
309 (Ind. Ct. App. 1990), trans. granted and affd in part by 577
N.E.2d 569 (Ind. 1991) and State v. Johanson, 695 N.E.2d 965 (Ind. Ct.
In Bowman, the officer did not record the test ampoule control number on
the form used to record the breath alcohol result as required by the
approved method. Bowman, 564 N.E.2d at 311. We noted that the
recordation requirement clearly has the purpose of facilitating the verification of the accuracy
of the test, a concern which certainly has bearing on both the weight
and admissibility of the test. Id. Therefore, despite the States argument
that recording the ampoule control number was merely an administrative housekeeping duty, we
held that the trial court erred when it admitted the results of the
breathalyzer test into evidence.
Id. at 312.
In Johanson, the officer administered the breathalyzer test and the defendants blood alcohol
level (BAC) registered .16% on the machines digital screen. Johanson, 695 N.E.2d
at 966. However, the results of the test did not print properly
on the evidence ticket; therefore, the officer manually wrote the BAC displayed results
and the time of the test on the ticket. Id. We
held that the trial court properly suppressed the results of the breathalyzer test
because [t]he statute and regulations governing the administration of breathalyzer tests clearly contemplate
strict compliance and the evidence ticket is independent evidence that is mandated by
the regulations. Id. at 967.
Both Bowman and Johanson reflect our courts concern regarding the accuracy and objective
verification of breathalyzer results; hence, the requirement of strict compliance with the approved
method in the administration of breathalyzer tests. In comparison, the facts in
this case do not raise issues concerning the accuracy of Gibsons breathalyzer test
results. We also note, that while Gibson argues that under the approved
method the officer should have obtained an alternate chemical test or performed the
test on a different breathalyzer machine after her second test recorded an incomplete
result, the approved method also sanctions another course of action, stating that if
the test result of incomplete is caused by lack of cooperation, the officer
should record that the test was refused. See Ind. Admin. Code tit.
260, r. 1.1-4-8. Under the facts and circumstances of this case, Officer
James could well have made the refusal determination after the second test.
During each of the three tests, Officer James did not believe that Gibson
was fully cooperating. In light of the consequences of recording a refusal
on a breathalyzer test, namely, that the refusal would result in the suspension
of the individuals driving privileges, Officer James decision to give Gibson one more
chance to take the test, after she failed to cooperate during the first
two tests, was actually beneficial to Gibson. Also, Officer James deviation from
the approved method does not raise concerns regarding the accuracy of the tests
results obtained. Therefore, we hold that the trial court did not abuse
its discretion when it denied Gibsons motion to suppress the determination that she
refused to submit to the breathalyzer test.
BARNES, J., and VAIDIK, J., concur.
Ind. Code § 9-30-5-2 (1992 & Supp. 2002).
Footnote: There were actually four evidence tickets produced during Gibsons attempts to take
the breathalyzer test. However, one of the tickets was removed from the
machine by Officer James before the test was completed. Tr. p. 24.
Officer James testified that he did not believe that Gibson attempted to
provide a breath sample on that ticket, only on the other three.
In her brief, Gibson also argues that the results of the breathalyzer
test should be suppressed because there is insufficient evidence that she refused to
submit to the test. Gibson failed to raise this argument in the
trial court; therefore it is waived.
See Hay v. Hay, 730 N.E.2d
787, 793 (Ind. Ct. App. 2000). Regardless, Officer James testified at the
suppression hearing, and the videotape record of the testing shows, that Gibson did
not cooperate when taking the test. He also gave her three chances
to take the test, and during each test, Gibson failed to provide a
sufficient breath sample to produce an even tone from the breathalyzer machine for
any significant length of time. See Ex. Vol., Defendants Ex. 1.
Our supreme court granted transfer in
Bowman, but stated that our court
correctly determin[ed] that due to improper procedures used in the administration of the
breathalyzer test, the trial court erred in admitting into evidence the test results
which indicated a .14% blood alcohol level. Bowman, 577 N.E.2d at 570.