Nivens v. State, 57A04-0411-CR-632.

• Decision Date: 22 August 2005
• Docket Number: No. 57A04-0411-CR-632.,57A04-0411-CR-632.
• Citation: 832 N.E.2d 1134
• Parties: Lestes NIVENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

832 N.E.2d 1134

Lestes NIVENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 57A04-0411-CR-632.

Court of Appeals of Indiana.

August 22, 2005.

Patrick J. Arata, Arata Law Firm, Fort Wayne, for Appellant.

Steve Carter, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

ROBB, Judge.

Lestes Nivens appeals the trial court's order denying his motion to suppress the results of his chemical breath test. We affirm.

Issue

Nivens raises one issue for our review, which we restate as whether the trial court properly denied Nivens' motion to suppress the results of his chemical breath test.

Facts and Procedural History

Shortly before midnight on December 30, 2003, Sergeant Arthur Willet of the Noble County Sheriff's Department conducted a traffic stop on a vehicle driven by Nivens. Sergeant Willet believed that Nivens was intoxicated, and requested that Nivens submit to a chemical breath test. Nivens agreed to take the test, and the test was administered using a BAC Datamaster machine with the serial number 881182. The chemical breath test showed that Nivens' blood-alcohol level was 0.10. Nivens was arrested and later charged with operating a vehicle while intoxicated as a Class C misdemeanor.

Before trial, Nivens filed a motion to suppress the results of his chemical breath test. Nivens argued that the results of his test were inadmissible because the BAC Datamaster machine used in the test was not properly inspected and certified by the Indiana State Department of Toxicology ("ISDT"). The trial court held a hearing on Nivens' motion on September 1, 2004. During the hearing, Nivens introduced into evidence the inspection certificate issued by ISDT for the BAC Datamaster machine with the serial number 881182. The inspection certificate indicated that the Datamaster machine used to test Nivens had been inspected on December 2, 2003. Included with the inspection certificate were the results of four simulated tests that were conducted to determine whether the Datamaster machine was in good operating condition. The first two tests were exposed to 0.08 ethanol water solutions. The first test reported a result of 0.07, while the result of the second test was reported as 0.0772. The third test was exposed to a 0.15 ethanol water solution, and the result reported was 0.1434. After being exposed to a 0.08 ethanol water solution, the result reported for the fourth test was 0.07. The inspection certificate concluded that the BAC Datamaster machine used in Nivens' chemical breath test was "in good operating condition, satisfying the accuracy requirements set out by State Department of Toxicology Regulations." Appendix to Brief of Appellant at 70.

Nivens also introduced the testimony of Dr. Michael Evans. Dr. Evans testified that he is a toxicologist and was the director of ISDT from 1987 through 1989. He indicated that he was familiar with the BAC Datamaster machine and with the standards for certification of this instrument, which are listed in Title 260, section 1.1-2-1 of the Indiana Administrative Code. Dr. Evans stated that the two test results that were reported as 0.07 were not in compliance with the rules adopted by ISDT in the Indiana Administrative Code because they were not expressed to the third decimal place. Because of this, Dr. Evans concluded that the Datamaster machine used to test Nivens was not properly inspected and certified by ISDT.

After the hearing, the trial court issued an order denying Nivens' motion to suppress. On November 4, 2004, Nivens filed a motion requesting that the trial court certify this matter for an interlocutory appeal. The trial court granted Nivens' motion, and we accepted jurisdiction of this appeal on December 30, 2004.

Discussion and Decision

Nivens argues that the trial court erred when it denied his motion to suppress the results of his chemical breath test. He contends that, pursuant to Indiana Code section 9-30-6-5(d), the results of his chemical breath test are inadmissible because ISDT failed to certify the Datamaster machine in accordance with its own regulations. We disagree.

"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." Fields v. State, 807 N.E.2d 106, 109 (Ind.Ct.App.2004), trans. denied. An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Smith v. State, 751 N.E.2d 280, 281 (Ind.Ct.App.2001), trans. denied.

The standards and regulations used for the certification of chemical breath test equipment are set by ISDT. Ind.Code § 9-30-6-5(a)(2). Certificates issued by ISDT that indicate that breath test equipment is in good operating condition are admissible and constitute prima facie evidence that the equipment was (1) inspected and approved by ISDT, and (2) was in proper working condition on the date the breath test was administered if the date of approval was not more than one hundred and eighty days before the date of the breath test. Ind.Code § 9-30-6-5(c). Indiana Code section 9-30-6-5(d) provides that the results of chemical breath tests are not admissible if the test equipment has not been approved in accordance with the rules adopted by the Department of Toxicology. See also Fields, 807 N.E.2d at 111.

Nivens' arguments principally focus upon the standards adopted by the ISDT for the inspection and certification of chemical breath test equipment, like the BAC Datamaster machine. Title 260, section 1.1-2-1 of the Indiana Administrative Code provides the following standards for chemical breath test equipment:

(a) All breath test equipment approved by the director of the state department of toxicology of Indiana University School of Medicine shall be inspected at least once each one hundred eighty (180) days at their usual location (building). If such location (building) is changed, the equipment must be reinspected before it can be certified for use.

(b) Such inspection shall include verification that the equipment is in good operating condition and satisfies the accuracy requirements set out in subsection (e)(2).

(c) Only persons authorized by the director of the state department of toxicology of Indiana University School of Medicine shall inspect approved breath test equipment.

(d) All such authorized inspectors shall report their findings to the director.

(e) 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.

(f) Chemicals (if required) shall be of sufficient strength and quality to allow the breath test device to operate in the manner specified in subsection (e)(2).

(Emphasis added.)¹

Nivens argues that ISDT failed to properly certify the BAC Datamaster machine that was used to test him in accordance with the standards established in Title 260, section 1.1-2-1(e) of the Indiana Administrative Code. He contends that section 1.1-2-1(e)(3) requires that the results of each of the tests done to assess the accuracy of the machine must be expressed to the third decimal place. He points out that two of the tests that were done were only expressed to the second decimal place. Because the results of each of the tests that were done were not expressed to the third decimal place, Nivens concludes that the BAC Datamaster machine was not properly certified, and, therefore, the results of his chemical breath test are inadmissible under Indiana Code section 9-30-6-5(d).

ISDT's interpretation of section 1.1-2-1, as demonstrated by its certification of the BAC Datamaster machine, is at odds with Nivens' interpretation. On December 2, 2003, four tests were done to assess the accuracy of the BAC Datamaster machine that was used to test Nivens. The results of two of the tests were expressed to the fourth decimal place, while the results of the other two tests were only expressed to the second decimal place. Despite this, ISDT concluded that the BAC Datamaster machine was "in good operating condition, satisfying the accuracy requirements set out by State Department of Toxicology Regulations." App. to Br. of Appellant at 70. In ISDT's view, a BAC Datamaster machine can be properly certified even though some of the results of the tests that were done to assess the accuracy of the machine are not expressed to the third decimal place.

In considering Nivens' arguments, we must construe an administrative rule. "When we construe an administrative rule, we use the same principles employed to construe statutes."...