Fields v. State

• Decision Date: 28 April 2004
• Docket Number: No. 73A01-0306-CR-230.,73A01-0306-CR-230.
• Citation: 807 N.E.2d 106
• Parties: Steven A. FIELDS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

807 N.E.2d 106

Steven A. FIELDS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 73A01-0306-CR-230.

Court of Appeals of Indiana.

April 28, 2004.

J.J. Paul, Voyles, Zahn, Paul, Hogan & Merriman, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

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. We affirm.¹

Issues²

Fields raises the following two issues for our review, which we restate as the following:

1. Whether the trial court properly admitted evidence of the chemical breath test results; and

2. Whether the State presented sufficient evidence to support Fields's conviction.

Facts and Procedural History

On June 25, 2002, Shelby County Sheriff's 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 Fields's 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 Fields's blood alcohol content at .12%.

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%.³ 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 defendant's 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),⁴

[r]equire[d] a twenty minute waiting period prior to the administration of the Intoxilyzer test, 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).

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 defendant's 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 defendant's motion to suppress evidence of the test results, a panel of this court reversed the trial court's 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 driver's 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 State's argument in that case that 260 IAC 1.1-4-8 does not require that a person's 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 court's decision to suppress evidence of the test results. Id. at 267.

We respectfully disagree with Molnar's 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 court's 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.⁵ Nevertheless, we do accept Molnar's 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 subject's 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

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