ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT W. HAMMERLE
JOSEPH M. CLEARY Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
BRENNA GUY, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-0206-CR-267 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
(1) 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.
Guy asserts that the trial court erred when it denied her motion to suppress because the metal stud is a foreign substance under 260 IAC 1.1-4-8(1). The State responds that the trial courts denial of her motion was proper because (1) Guy put the metal stud in her mouth more than twenty minutes prior to the test, and (2) a metal stud is not a foreign substance under the rule. The parties arguments require that we examine the meaning of 260 IAC 1.1-4-8(1), which our courts have had few opportunities to do.
(Citations omitted, emphasis added). In Albright, an officer, after having administered an
initial breath test, determined that the test subject had peanut fragments in his
mouth. Id. The officer then immediately gave a second test, and
after waiting an additional twenty-four or twenty-five minutes, he conducted a third test.
Id. at 725-26. The defendant argued that the State failed to
prove that the officer had complied with the proper testing procedures because the
officer did not comply with the twenty-minute waiting period, and our supreme court
disagreed. Id. at 726. But critical to our decision today is
the courts statement in Albright that during the twenty-minute waiting period, the subject
must not have had any foreign substance in his or her mouth.
The State asserts that the Albright courts interpretation of 260 IAC 1.1-4-8(1) is dicta. But we reject that contention for two reasons. First, the opinion as a whole suggests that, had the officer in that case failed to administer additional tests after having found the peanut fragments in the subjects mouth, the State could not have met its burden of proving that the officer complied with proper test procedures. Moreover, regardless of when the subject had put the peanuts in his mouth, the fact that the peanut fragments were inside his mouth while the test was administered was significant and caused the officer to administer additional tests. The States attempt to dismiss our supreme courts opinion in Albright as binding authority must fail. Following Albright, we conclude 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. See footnote
But another panel of this court recently agreed, at least in part, with the States interpretation of 260 IAC 1.1-4-8(1). Specifically, in State v. Molnar, 803 N.E.2d 261, 262 (Ind. Ct. App. 2004), the defendant sought to suppress the results of his breath test because he claimed that he had residue from chewing tobacco in his mouth when he took the test. While it was undisputed that the defendant had spit out chewing tobacco prior to submitting to the test, the officer who administered the test testified that when he looked inside the defendants mouth with a flashlight, he did not observe any tobacco residue. But the defendant asserted that, based on his experience with chewing tobacco, he had to have had residue in his mouth during the test. To support that assertion, during the suppression hearing he removed a clump of tobacco from his mouth, rinsed his mouth twice with water, and spit twice. Because there was residue in his spit after rinsing his mouth, the defendant asserted, and the trial court agreed, that there must have been tobacco residue in his mouth when he submitted to the breath test. Id. at 262-63. The trial court granted the defendants motion to suppress.
In reversing the trial court, the Molnar court interpreted 260 IAC 1.1-4-8(1) as follows: By using the word put in the regulation, the Department of Toxicology prohibited the placement of a foreign substance in the subjects mouth twenty minutes prior to the test. Id. at 266. We then stated in relevant part:
There is no dispute here that Molnar did not place any foreign substance in his mouth within twenty minutes of the test. The regulation makes no provision for residue remaining from matter removed from the subjects mouth before the twenty-minute period begins and does not invalidate the breath test results due to residue remaining in the subjects mouth.
Id. (emphases added, footnotes omitted).
We respectfully disagree with Molnars interpretation of 260 IAC 1.1-4-8(1) to the extent that the panel determined that, as long as a subject has placed a foreign substance in his mouth more than twenty minutes before a breath test, the test complies with the rule. Under that literal interpretation, a subject could place a penny, food, or any other substance in his mouth twenty-one minutes before taking a test, leave the substance in his mouth during the test, and the results would be valid under the rule. That interpretation would yield an absurd result. See Murray v. State, 798 N.E.2d 895, 902 (Ind. Ct. App. 2003) (addressing rule of construction that we presume legislature intended language in statute to be applied logically and not to bring about an unjust or absurd result). Further, Molnar does not address our supreme courts decision in Albright, which is binding authority on the matter.
Our review of Molnar in its entirety suggests that the decision has limited applicability. Specifically, the panel in that case noted, We do agree that the 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. Molnar, 803 N.E.2d at 266 n.1 (emphasis added). Accordingly, the panel likely would have reached a different outcome if, as with Guys metal stud, the defendant had not removed the chewing tobacco from his mouth before he submitted to the breath test. We conclude that the holding in Molnar is limited to cases where a defendant has a foreign substance in his mouth and removes that substance prior to the test.
Unlike in Molnar, the following facts in this case are undisputed: (1) when Officer Shaffer inspected Guys mouth before he administered the test, he observed the metal tongue stud; (2) Officer Shaffer did not ask Guy to remove the metal stud; and (3) Guy had the metal stud in her mouth during the breath test. Thus, Molnar is clearly distinguishable and does not determine the outcome here. Rather, our supreme courts interpretation of 260 IAC 1.1-4-8(1) in Albright controls and, following that case, we conclude that a person to be tested must not have had any foreign substance in his mouth within twenty minutes prior to the time a breath sample is taken.
(Citation omitted); see Indiana Port Commn v. Consolidated Grain and Barge Co., 701
N.E.2d 882, 890 (Ind. Ct. App. 1998) (applying rules of statutory construction to
interpret administrative regulations), trans. denied.
Our supreme court addressed the intended purpose of 260 IAC 1.1-4-8(1), and specifically the foreign substance provision, in Albright when it stated that that requirement relates to the reliability of the results, because foreign substances may alter the blood-alcohol content reading. 632 N.E.2d at 725 (citing generally Tyner v. State, 503 N.E.2d 444 (Ind. Ct. App. 1987)). With that intended purpose in mind, the rule does not define foreign substance, nor does it enumerate specific substances that may affect the breath test. Rather, it precludes any foreign substance in the test subjects mouth within twenty minutes prior to the time a breath sample is taken.
Guy directs us to Blacks Law Dictionary, which defines foreign substance as [a] substance found in a body, organism, or thing where it is not supposed to be found . . . . Blacks Law Dictionary 660 (7th ed. 1999). Similarly, the word foreign is defined, in part, as [s]ituated in an abnormal or improper place in the body and typically introduced from outside: a foreign object in the eye. The American Heritage Dictionary of the English Language 711 (3d ed. 1996) (italics in original). Abnormal means [n]ot typical, usual, or regular. Id. at 4. A metal stud inserted through a persons tongue falls within the plain meaning of foreign because it is situated in an atypical, unusual, or irregular place in the body and is introduced from outside.
Still, the State asserts that if we were to conclude that a metal stud is a foreign substance, then a variety of dental appliances would necessarily be foreign substances under the rule as well. The State also points out that other states have determined that a test subject is not required to remove dentures or false teeth before a breath test. See Farr v. State, 914 S.W.2d 38, 40 (Mo. Ct. App. 1996); People v. Witt, 630 N.E.2d 156, 158 (Ill. App. Ct. 1994). But based on the dictionary definitions above, we cannot agree with the States contention that dental appliances would necessarily constitute foreign substances under the rule. Although introduced from outside, dental appliances are not situated in an abnormal, unusual or irregular place in the body, and such appliances are prevalent throughout the general population. Also, Guys motion to suppress does not concern dental appliances, and that is a question left for another day. See footnote
Again, the burden is on the State to prove that the officer who administered the breath test followed proper procedures. Baran v. State, 639 N.E.2d 642, 646 (Ind. 1994); Albright, 632 N.E.2d at 725. Indiana law requires strict compliance with the procedures adopted by the Department of Toxicology. Crouch v. State, 638 N.E.2d 861, 864 (Ind. Ct. App. 1994). Failure to comply with rules and procedures promulgated by the Department leads to the test results being inadmissible. See id.
Here, Guy had no burden to show that the metal stud affected her test results. Rather, to succeed on her motion, she need only prove that the metal stud is a foreign substance under the rule. She has met that burden. The language of 260 IAC 1.1-4-8(1) broadly states that the person to be tested must not have put any foreign substance in her mouth within twenty minutes prior to the time a breath sample is taken. Because Guy had a foreign substance in her mouth not only within twenty minutes of the test, but also during the test, the State cannot show that proper procedures were followed in this case.
Based on the undisputed facts and the plain meaning of the term foreign, we conclude that Guys metal tongue stud, which the officer saw before he administered the breath test and which was easily removable, falls within the plain meaning of the phrase any foreign substance under 260 IAC 1.1-4-8(1). Therefore, we hold that the trial court erred when it denied Guys motion to suppress.
SULLIVAN, J., concurs with separate opinion.
STATON, Sr.J., dissents with separate opinion.
SULLIVAN, Judge, concurring
I concur but write separately to put forth some concerns or observations with respect to possible ramifications of our decision.
In this respect Judge Statons dissent raises a very real question creating a quandary for enunciation of a workable requirement. Judge Staton validly observes that the factor of paramount importance is the effect, if any, of a substance, whether foreign or not, upon the accuracy and reliability of the breath test. In this context, whether the substance is readily removable or not is not critical.
Yet, in considering substances like dental fillings, orthodontic braces, implants, etc. which are not removable and certainly not readily removable, one may question whether those materials are any less likely to skew the results of a breath test than a metal tongue stud. Even so, I join with Judge Najam in his observation that the issue of dental appliances is a question left for another day. Slip op. at 10.
Furthermore, placement of the burden upon the State to demonstrate the foundation for admitting the results of the test is sound. Not only as noted by Judge Najam, is it the State which is proffering the test result, it is more practical to place the burden upon the State. The State utilizes the testing device in its law enforcement function. Because its use is subject to the protocol set forth by the Indiana Department of Toxicology, it is not unreasonable, when the validity of a test result has been challenged, to place the onus upon the State to demonstrate, by testimony of its own experts or otherwise, that any substance in the mouth did not distort the test results.
Conversely, if it wished to do so our General Assembly could legislate that it is an affirmative defense available to a defendant to demonstrate the test result was likely to have been adversely and prejudicially affected by the substance. But of course even without an affirmative defense provision, a defendant need not sit quietly when breathalyzer test results are offered into evidence. Objections upon relevancy or other grounds are available. Furthermore, even if the results are admitted a defendant is free through cross-examination or his own witnesses to cast negative reflections upon the results. See Tyner v. State, 503 N.E.2d 444, 449 (Ind. Ct. App. 1987), superseded on other grounds by statute as recognized by Allman v. State, 728 N.E.2d 230 (Ind. Ct. App. 2000).
Subject to these comments, which if placed within a majority opinion would constitute pure dicta, I concur in the reversal of the denial of Guys motion to suppress.
STATON, Senior Judge, dissenting
The only issue before the Court is whether a stainless steel tongue stud in Guys mouth during the chemical breath test is a foreign substance as contemplated by the statutory guidelines. I think not.
I dissent. The judgment of the trial court should be affirmed. The statutory definition of a foreign substance could not reasonably include every possible item found attached or unattached in a persons mouth or possession. The metal object in Guys mouth, a stainless steel tongue stud, was part of her persona. See footnote When objects are a part of a persons persona and they are characterized as foreign substances, some evidence must be presented to indicate that they justifiably come within the meaning of the statute setting forth the guidelines to be followed for the test. In Guys record, there is no evidencenone.
The foreign substance characterization for definition must be considered in the context of the statutory guidelines for a chemical breath test for alcohol. The guidelines provide in 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 to the time a breath sample is taken. 260 IAC 1.1-4-8. From this context, it is difficult to reasonably understand how the Majority transformed a stainless steel tongue stud into a foreign substance.
The stainless steel stud was in Guys mouth before, during, and after the test. An experienced police officer did not ask her to remove the stainless steel stud when he administered the test. He was aware of the stud in Guys mouth before the test. The trial judge did not think that the stainless steel stud was a foreign substance when he denied the motion to suppress. There is absolutely no evidence in the record to justify the Majoritys characterization of the stainless steel stud as a foreign substance. It was a part of Guys persona until proven otherwise.
The intent and purpose of the statute is to assure a fair, accurate test result. With the aid of the Indiana University Department of Toxicology, guidelines have been established. State v. Johanson, 695 N.E.2d 965, 966-67 (Ind. Ct. App. 1998)(citing Ind. Code § 9-30-6-5. A waiting period of twenty (20) minutes is required before the test is administered. During this waiting period nothing is to be put in the mouth of the person being tested. State v. Molnar, 803 N.E.2d 261, 265 (Ind. Ct. App. 2004). The twenty (20) minute waiting period appears to be the crucial guideline for the test. In State v. Albright, 632 N.E.2d 725, 726 (Ind. 1994), the Supreme Court concluded that the record clearly exhibited that the police officer waited the necessary twenty (20) minutes. Albright had peanut fragments in his mouth at the time of the test. In Molnar, Molnar had been chewing tobacco before the test. After he spit the tobacco wad out, there were still some fragments of the tobacco between his teeth, but he had not put anything in his mouth during the twenty (20) minute waiting period. The Court of Appeals found that the guidelines had been correctly observed because nothing had been put in Molnars mouth during the twenty (20) minute waiting period. Molnar, 803 N.E.2d at 267. Likewise, in Albright, the Supreme Court found that the twenty (20) minute guideline requirement had been followed. 632 N.E.2d at 726. The peanut fragments in Albrights mouth did not render the test invalid.
Foreign Substance is a very broad term. Its meaning depends on the context in which it is used. In the Statute, the term foreign substance is used in relation to a chemical breath test to determine the amount of alcohol in the subjects system. The critical period is the twenty (20) minute waiting period. During this period nothing is to be eaten, drunk, or consumed by the subject. Because the breath of the subject is so important, no smoking is allowed. The stainless steel stud is affixed to Guys tongue. It cannot be digested as food or drink. There is no evidence in the record to show how or why a stainless steel stud should be taken from Guys tongue before or during the chemical breath test. Without any indication or evidence to indicate why the stainless steel stud might possibly be a foreign substance that would invalidate the test, the State has carried its burden as far as the alcohol test is concerned.
I would affirm the judgment of the trial court.