OPINION
BAILEY, Judge.
Case Summary
Appellants-Defendants Jerrold P. Disa-bato, Aaron J. Muey, Curt D. Abbott, Tina K. Emberton, and John R. Cosgrove II (collectively, "Appellants") appeal the trial court's denial of their motions to suppress evidence. We affirm.
Issue
Appellants raise one issue on interlocutory appeal, which we restate as whether the trial court erred by denying their motions to suppress the results of their breathalyzer tests because such evidence was inadmissible under Indiana Code Sections 9-30-6-5 and 4-22-2-44.
Facts and Procedural History
Between June and November of 2004, Appellants were each charged with operating a vehicle with an unlawful blood or breath alcohol concentration in violation of Indiana Code Sections 9-80-51, 9-80-5-2, 9-30-5-3,
and/or 14-15-8-8(a)(2).
Prior
to trial, Appellants filed motions to sup—press evidence, seeking the suppression of any evidence relating to their breath tests, which was obtained pursuant to certain regulations that were allegedly improperly promulgated. In particular, Appellants argued that the trial court should not take judicial notice of the following regulations contained in Title 260 of the Indiana Administrative Code: (1) 260 IAC 1.1-1-2, which establishes the training required to become a breath test operator; (2) 260 IAC 1.1-1-3, which sets forth the requirements for the certification and recertification of breath test operators; (8) 260 IAC 1.1-2-1, which delineates the requirement that all breath tests be calibrated every 180 days, as well as the tolerances for such calibrations; and (4) 260 IAC 1.1-4-8, which establishes the approved procedure for conducting "a B.A.C. Datamaster with keyboard test for alcohol intoxication." Ex. Tr. at 206. Appellants maintained that these regulations (collectively referred to as the "Regulations") were not properly promulgated under Indiana Code 4-22-2, as required by Indiana Code Section 9-30-6-5, and are thus invalid. As a consequence, Appellants' argument continues, the breath tests obtained under those Regulations are inadmissible. .
On January 19, 2005, after conducting a consolidated hearing, the trial court denied Appellants' motions to suppress. Appellants moved to certify the orders for interlocutory appeal, which the trial court granted. We accepted jurisdiction of this appeal on March 21, 2005.
Discussion and Decision
I. Standard of Review
Appellants challenge the trial court's order denying their motions to suppress. Generally, we review the denial of a motion to suppress in a manner similar to other sufficiency matters. Taylor v. State, 689 N.E.2d 699, 702 (Ind.1997). However, Appellants attack the validity of the Regulations and, therefore, our review is de novo. See, eg., Kaser v. Barker, 811 N.E.2d 930, 982 (Ind.Ct.App.2004) (noting that the construction and interpretation of statutes are questions of law that we re
view de novo), trans. denied. In other words, we give no deference to the trial court's interpretation. Id. Instead, we "independently review the statute's meaning and apply it to the facts of the case under review." Id.
IIL. Analysis
On appeal, Appellants argue that the trial court erred as a matter of law when it denied their motions to suppress the results of their breath tests because such evidence was inadmissible, inasmuch as it was obtained pursuant to the Regulations, which are invalid under Indiana Code See-tions 9-80-6-5 and 4-22-2-44.
Specifically, Appellants contend that the Regulations were not properly promulgated as rules because the director of the department of toxicology failed to submit them to the Secretary of State for filing, pursuant to Indiana Code Section 4-22-2-85(c).
In addressing this contention, we first note that Indiana Code Section 9-80-6-5 provides, in relevant part:
(a) The director of the department of toxicology of the Indiana University school of medicine shall adopt rules under IC 4-22-22 concerning the following:
(1) Standards and regulations for the:
(A) selection;
(B) training; and
(C) certification;
of breath test operators.
(2) Standards and regulations for the:
(A) selection; and
(B) certification;
of breath test equipment and chemicals.
(3) The certification of the proper technique for administering a breath test.
(Emphasis added). Pursuant to this statute then, to be valid, the Regulations at issue must have been adopted under Indiana Code 4-22-2.
Next, we observe that the Regulations are codified in Title 260 of the Indiana Administrative Code. Pursuant to Indiana Code Section 4-22-9-8(b), "the official publication of a rule in the Indiana Register or the Indiana Administrative Code shall be considered prima facie evidence that the rule was adopted in conformity with IC 4-22-2 and that the text published is the text adopted."
In addition, Indiana Code Section 4-22-9-8(a) mandates that all rules, which have been adopted in conformity with Indiana Code 4-22-2, be "judicially noticed by all courts and agencies of this state."
In an attempt both to rebut the State's proffer of prima facie evidence under Indiana Code Section 4-22-9-8(b)-i.e., that the Regulations were adopted in conformity with Indiana Code 4-22-2-and to avoid the statutory mandate that the trial court take judicial notice of the Regulations, Appellants assert that such Regulations were not validly promulgated under
Indiana Code Section 4-22-2-85. That section, which governs the submission of rules to the Secretary of State for filing, provides:
(a) When a rule has been approved or deemed approved by the governor within the period allowed by section 25 of this chapter, the agency shall immediately submit the rule to the secretary of state for filing. The agency shall submit the rule in the form required by section 20
of this chapter and with the documents required by section 21
of this chapter.
(b) The secretary of state shall determine the number of copies of the rule and other documents to be submitted under this section.
(c) Subject to section 39
of this chapter, the secretary of state shall:
(1) accept the rule for filing; and
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
BAILEY, Judge.
Case Summary
Appellants-Defendants Jerrold P. Disa-bato, Aaron J. Muey, Curt D. Abbott, Tina K. Emberton, and John R. Cosgrove II (collectively, "Appellants") appeal the trial court's denial of their motions to suppress evidence. We affirm.
Issue
Appellants raise one issue on interlocutory appeal, which we restate as whether the trial court erred by denying their motions to suppress the results of their breathalyzer tests because such evidence was inadmissible under Indiana Code Sections 9-30-6-5 and 4-22-2-44.
Facts and Procedural History
Between June and November of 2004, Appellants were each charged with operating a vehicle with an unlawful blood or breath alcohol concentration in violation of Indiana Code Sections 9-80-51, 9-80-5-2, 9-30-5-3,
and/or 14-15-8-8(a)(2).
Prior
to trial, Appellants filed motions to sup—press evidence, seeking the suppression of any evidence relating to their breath tests, which was obtained pursuant to certain regulations that were allegedly improperly promulgated. In particular, Appellants argued that the trial court should not take judicial notice of the following regulations contained in Title 260 of the Indiana Administrative Code: (1) 260 IAC 1.1-1-2, which establishes the training required to become a breath test operator; (2) 260 IAC 1.1-1-3, which sets forth the requirements for the certification and recertification of breath test operators; (8) 260 IAC 1.1-2-1, which delineates the requirement that all breath tests be calibrated every 180 days, as well as the tolerances for such calibrations; and (4) 260 IAC 1.1-4-8, which establishes the approved procedure for conducting "a B.A.C. Datamaster with keyboard test for alcohol intoxication." Ex. Tr. at 206. Appellants maintained that these regulations (collectively referred to as the "Regulations") were not properly promulgated under Indiana Code 4-22-2, as required by Indiana Code Section 9-30-6-5, and are thus invalid. As a consequence, Appellants' argument continues, the breath tests obtained under those Regulations are inadmissible. .
On January 19, 2005, after conducting a consolidated hearing, the trial court denied Appellants' motions to suppress. Appellants moved to certify the orders for interlocutory appeal, which the trial court granted. We accepted jurisdiction of this appeal on March 21, 2005.
Discussion and Decision
I. Standard of Review
Appellants challenge the trial court's order denying their motions to suppress. Generally, we review the denial of a motion to suppress in a manner similar to other sufficiency matters. Taylor v. State, 689 N.E.2d 699, 702 (Ind.1997). However, Appellants attack the validity of the Regulations and, therefore, our review is de novo. See, eg., Kaser v. Barker, 811 N.E.2d 930, 982 (Ind.Ct.App.2004) (noting that the construction and interpretation of statutes are questions of law that we re
view de novo), trans. denied. In other words, we give no deference to the trial court's interpretation. Id. Instead, we "independently review the statute's meaning and apply it to the facts of the case under review." Id.
IIL. Analysis
On appeal, Appellants argue that the trial court erred as a matter of law when it denied their motions to suppress the results of their breath tests because such evidence was inadmissible, inasmuch as it was obtained pursuant to the Regulations, which are invalid under Indiana Code See-tions 9-80-6-5 and 4-22-2-44.
Specifically, Appellants contend that the Regulations were not properly promulgated as rules because the director of the department of toxicology failed to submit them to the Secretary of State for filing, pursuant to Indiana Code Section 4-22-2-85(c).
In addressing this contention, we first note that Indiana Code Section 9-80-6-5 provides, in relevant part:
(a) The director of the department of toxicology of the Indiana University school of medicine shall adopt rules under IC 4-22-22 concerning the following:
(1) Standards and regulations for the:
(A) selection;
(B) training; and
(C) certification;
of breath test operators.
(2) Standards and regulations for the:
(A) selection; and
(B) certification;
of breath test equipment and chemicals.
(3) The certification of the proper technique for administering a breath test.
(Emphasis added). Pursuant to this statute then, to be valid, the Regulations at issue must have been adopted under Indiana Code 4-22-2.
Next, we observe that the Regulations are codified in Title 260 of the Indiana Administrative Code. Pursuant to Indiana Code Section 4-22-9-8(b), "the official publication of a rule in the Indiana Register or the Indiana Administrative Code shall be considered prima facie evidence that the rule was adopted in conformity with IC 4-22-2 and that the text published is the text adopted."
In addition, Indiana Code Section 4-22-9-8(a) mandates that all rules, which have been adopted in conformity with Indiana Code 4-22-2, be "judicially noticed by all courts and agencies of this state."
In an attempt both to rebut the State's proffer of prima facie evidence under Indiana Code Section 4-22-9-8(b)-i.e., that the Regulations were adopted in conformity with Indiana Code 4-22-2-and to avoid the statutory mandate that the trial court take judicial notice of the Regulations, Appellants assert that such Regulations were not validly promulgated under
Indiana Code Section 4-22-2-85. That section, which governs the submission of rules to the Secretary of State for filing, provides:
(a) When a rule has been approved or deemed approved by the governor within the period allowed by section 25 of this chapter, the agency shall immediately submit the rule to the secretary of state for filing. The agency shall submit the rule in the form required by section 20
of this chapter and with the documents required by section 21
of this chapter.
(b) The secretary of state shall determine the number of copies of the rule and other documents to be submitted under this section.
(c) Subject to section 39
of this chapter, the secretary of state shall:
(1) accept the rule for filing; and
(2) file stamp and indicate the date and time the rule is accepted on every duplicate original copy submitted. *
Further, Indiana Code Section 4-22-2-36, regarding the effective date of rules, provides:
A rule that has been accepted for filing under section 35 of this chapter takes effect on the latest of the following dates:
(1) The effective date of the statute delegating authority to the agency to adopt the rule.
(2) The date that is thirty (80) days from the date and time that the rule was accepted for filing under section 35 of this chapter.
(8) The effective date stated by the ageney in the rule.
(4) The date of compliance with every requirement established by law as a prerequisite to the adoption or effectiveness of the rule.
Appellants maintain that, in light of this latter statute, no rule may become effective until thirty days after it has been submitted to the Secretary of State, accepted for filing, and file stamped. Appellants also assert that the Regulations in dispute were not file stamped by the Secretary of State and were, thus, invalidly promulgated. However, our review of the record reveals that the Regulations were file stamped "received" by the Indiana Secretary of State in November of 1999.
The mere fact that the relevant file stamp does not contain the word "filed" is of no moment, especially in light of Def.'s Ex. B. This Exhibit bears a similar file stamp-ie., "received" by Indiana Secretary of State on March 20, 1986-and, in addition, explains that it was "[fililed with the Secretary of State" on "3/20/86." Id. Accordingly, Appellants have failed to demonstrate that the Regulations were not file stamped under Indiana Code Section 4-22-2-85.
Moreover, because the Regulations are codified in the Administrative Code, Appellants have likewise failed to overcome the State's proffer of prima facie evidence that such rules were valid. As such, the trial court properly took judicial notice of the Regulations. See Ind.Code § 4-22-9-8(b); see also Thurman v. State, 661 N.E.2d 900, 902 (Ind.Ct.App.1996). Further, inasmuch as Appellants do not claim that the breath tests were obtained in violation of the Regulations,
the results of the breath tests are admissible into evidence and, therefore, the trial court properly. denied Appellants' motions to suppress.
For the foregoing reasons, we affirm the trial court's denial of Appellants' motions to suppress the results of their breath tests.
Affirmed.
SHARPNACK, J., and DARDEN, J., concur.
ORDER
On November 80, 2005, the Court handed down its opinion in this appeal marked Memorandum Decision, Not for Publication. The Appellee, by counsel, has filed 2a Verified Motion for Publication of Memorandum Decision. The Appellee states that the Court's decision meets the criteria for publication set forth in Appellate Rule 65 (A).
Having considered the matter, the Court FINDS AND ORDERS AS FOLLOWS:
1. The Appellee's Verified Motion for Publication of Memorandum Decision is GRANTED, and this Court's opinion handed down in this cause on November
30, 2005, marked Memorandum Decision, Not for Publication is now ORDERED PUBLISHED.
All Panel Judges Concur.