Van Allen v. State

Decision Date27 August 1984
Docket NumberNo. 2-284A51,2-284A51
Citation467 N.E.2d 1210
PartiesVince E. VAN ALLEN, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
CourtIndiana Appellate Court

Jay T. Seeger, Heide, Gambs & Mucker, Lafayette, for appellant.

Linley E. Pearson, Atty. Gen., Jay R. Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant-appellant Vince E. Van Allen (Van Allen) brings an interlocutory appeal for review of the trial court's refusal to grant his motion to suppress the results of his breathalyzer test because of the lack of rules or regulations governing certification of the test results.

We affirm.

FACTS

The undisputed facts are that admission of breathalyzer test results in a court of law must be predicated on proof of certification of the equipment, chemicals, and operator. Prior to September 1, 1983, certification procedures were governed by this pertinent portion of Ind.Code 9-4-4.5-6 (1982):

"(a) The director of the department of toxicology of the Indiana University school of medicine is authorized to adopt the necessary rules and regulations to set standards for the selection, training, certification and recertification of breathalizer [sic] test operators and to provide for the periodic inspection of breathalizer [sic] test devices."

(Emphasis supplied) [hereinafter referred to as the old certification statute]. The certification rules and regulations promulgated The old certification statute was repealed by re-enacted certification legislation which contained this language: "The following are repealed: IC 9-4-1-54; IC 9-4-4.5." 1983 Ind.Acts, Pub.L. No. 143-1983 Sec. 9 (emphasis supplied). The repeal of the old certification statute took effect on the same date the new certification legislation became effective, September 1, 1983. See IC 1-1-3-3 (1983 Supp.) (all legislation is effective September 1 following enactment unless otherwise specified). And, the old certification statute's rules and regulations were explicitly repealed by this language contained in the new rules and regulations issued under the re-enacted certification legislation: "260 IAC 1 is repealed, however any certificates issued under 260 IAC 1 shall be valid until the date they would have expired under 260 IAC 1 and any machine, instrument, chemical, operator or method certified under 260 IAC 1 shall be deemed certified under 260 IAC 1.1 until said certification would have expired under 260 IAC 1." 7 Ind.Reg. 335 Sec. 2 (to be codified at 260 IAC 1.1 (1985 Supp.)).

pursuant to the old certification statute may be found at 260 IAC 1-1-1 to -5-3 (1984) [hereinafter referred to as the old certification statute's rules and regulations].

Relevant sections of the re-enacted certification legislation, found at IC 9-11-4-5 (1983 Supp.), consist of the following:

"(a) The director of the department of toxicology of the Indiana University school of medicine shall adopt rules, under IC 4-22-2, concerning:

(1) standards and regulations for the:

(A) selection;

(B) training; and

(C) certification;

of chemical breath test operators;

(2) standards and regulations for the:

(A) selection; and

(B) certification;

of chemical breath test equipment and chemicals; and

(3) the certification of the proper technique for administering a chemical breath test."

(Emphasis supplied) [hereinafter referred to as the new certification statute].

Formal rulemaking in accordance with the new certification statute led to enactment of 7 Ind.Reg. 335-40 (to be codified at 260 IAC 1.1-1-1 to -4-5 (1985 Supp.)) [hereinafter referred to as the new certification statute's rules and regulations]. These new rules and regulations became effective January 12, 1984. See IC 4-22-2-5 (1982) (rules become effective thirty days from date filed with Secretary of State unless otherwise specified).

On September 10, 1983, a day falling between the repeal date of the old certification statute (September 1, 1983) and the effective date of the new certification statute's rules and regulations (January 12, 1984), Van Allen was given a breathalyzer test upon suspicion of operating a motor vehicle while intoxicated. He was subsequently arrested and charged by information with one count of operating a motor vehicle while intoxicated 1 and one count of operating a motor vehicle while intoxicated and having a previous conviction for the same offense within five years. 2

A motion to suppress the use of the breathalyzer test as evidence was filed on behalf of Van Allen on the theory no rules and regulations for certification of the breathalyzer test results were effective from September 1, 1983 to January 12, 1984. The trial court denied the motion concluding that, based on the principle of simultaneous repeal and re-enactment, the old certification statute's rules and regulations continued to govern certification until the new certification statute's rules and regulations became effective. At Van Allen's request, the trial court granted certification of his petition for interlocutory appeal because the issue raised involves the validity of all arrests based on breathalyzer tests given between September 1, 1983 and January 12, 1984.

ISSUE

Van Allen's appeal focuses on an issue which is one of first impression in Indiana:

When a statute is simultaneously repealed and re-enacted without substantial change, do the rules and regulations promulgated under the repealed statute continue in effect during the interim period until new rules are promulgated under the re-enacted statute?

DECISION

PARTIES' CONTENTIONS--Van Allen's position is that the old certification statute's rules and regulations no longer had effect once the old certification statute was repealed because the agency's authorization no longer existed. Furthermore, the principle of simultaneous repeal and re-enactment is not applicable here because (1) it pertains to statutes rather than to their underlying rules and regulations and (2) the new certification statute is not a "substantial re-enactment" of the old certification statute. The State, on the other hand, believes the intent of the legislature is clear that the old certification statute's rules and regulations should continue in effect. This intent, the State maintains, is exemplified by the simultaneous repeal and re-enactment of the certification statutes without substantial revision of the certification procedures.

CONCLUSION--The trial court properly denied Van Allen's motion to suppress the results of his breathalyzer test because by simultaneously repealing and re-enacting the certification statutes without substantive change the legislature expressed its intent that the rules and regulations of the old certification statute would remain effective until the new certification statute's rules and regulations were officially promulgated.

Our conclusion in this case can only be cast in terms of analyzing a void. When an old statute with its attendant rules and regulations is repealed and a new statute, not yet implemented with new rules and regulations, is re-enacted, what governs administrative action in the interim period? Some background in administrative law is necessary to answer the question.

Administrative agencies are creatures of the legislature. Their powers are strictly limited to their authorizing statutes, e.g., rule-making power must be legislatively delegated. See Town of Merrillville v. Lincoln Gardens Utils. Co., Inc., (1976) 170 Ind.App. 245, 351 N.E.2d 914. Then, when rule-making powers have been granted and exercised, a court will only enforce the rules and regulations as long as they are within the scope of the statute:

"In passing on the validity of administrative rules and regulations, the only concern of the court is to ascertain whether the will of the legislature has been obeyed. In reviewing the propriety of an administrative regulation, the court must first determine whether the regulation lies within the scope of the authority conferred, it looks to see whether the regulation harmonizes with the plain language of the statute, its origin and its purpose, and must ascertain whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring the rule-making power, and then determine whether the regulation is reasonable and not arbitrary."

73 C.J.S. Public Administrative Law & Procedure Sec. 93a, at 603-04 (1983). See also 2 AM.JUR.2D Administrative Law Sec. 300 (1962). If valid, such a rule or regulation acquires the force and effect of law, "particularly where it is a ... legislative rule, and is an integral part of the statute under which it is made just as though it were prescribed in terms therein." 73 C.J.S., supra Sec. 97, at 626-27. See also Blue v. Beach, (1900) 155 Ind. 121, 56 N.E. 89. Because they complete the law, legislative rules and regulations generally are effective from their promulgation date until modification or repeal by the agency or legislature and have no retroactive effect. See 2 AM.JUR.2D, supra Sec. 308; 73 C.J.S., supra Sec. 96.

Van Allen does not challenge the legislature's grant of rule-making power to the department of toxicology or the validity of either the old or new certification statute's rules and regulations. His focus is only on the precise dates the old certification statute's rules and regulations presumably lost their effectiveness and force of law and the new certification statute's rules and regulations became binding. In essence, Van Allen would have us mechanistically apply general notions of administrative law to deduce that, on September 1, 1983, when the old certification statute was officially repealed, the old certification statute's rules and regulations were also repealed because their existence was dependent on that of their enabling legislation--like a parasite that can feed only on its host. Because the department of toxicology had not yet...

To continue reading

Request your trial
13 cases
  • Appeal of Associated Sign & Post, Inc.
    • United States
    • Indiana Appellate Court
    • November 26, 1985
    ...Human Rights Commission, are creatures of the legislative body which enacted their enabling legislation. Van Allen v. State (1984), Ind.App., 467 N.E.2d 1210, 1213; Gallagher v. Marion County Victim Advocate Program, Inc. (1980), Ind.App., 401 N.E.2d 1362, 1368, trans. denied. They may, the......
  • Barco Beverage Corp. v. Indiana Alcoholic Beverage Com'n
    • United States
    • Indiana Appellate Court
    • December 11, 1990
    ...the agency was created. Potts v. Review Bd. of Indiana (1982), Ind.App., 438 N.E.2d 1012, trans. denied.This court, in Van Allen v. State (1984), Ind.App., 467 N.E.2d 1210, recognized:"In passing on the validity of administrative rules and regulations, the only concern of the court is to as......
  • Poracky v. State Bd. of Tax Com'rs
    • United States
    • Indiana Tax Court
    • June 8, 1994
    ...rule, the only concern of the court is to ascertain whether the will of the Legislature has been obeyed. Van Allen v. State (1984), Ind.App., 467 N.E.2d 1210. On review, the court must consider whether the rule lies within the scope of the authority conferred, whether the regulation State B......
  • Costain v. REGULATION & LICENSING DEPT.
    • United States
    • Court of Appeals of New Mexico
    • August 19, 1999
    ...phrased constitutes... merely a continuation of the former."); Drury v. Harding, 461 So.2d 104 (Fla.1984); Van Allen v. State, 467 N.E.2d 1210, 1214-15 (Ind.Ct.App.1984) (regulation remains in effect after repeal and re-enactment of statute until substitute regulation is enacted); Oliver v.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT