Nasser v. State

646 N.E.2d 673, 1995 Ind. App. LEXIS 98, 1995 WL 44578
CourtIndiana Court of Appeals
DecidedFebruary 7, 1995
Docket49A02-9206-CR-283
StatusPublished
Cited by23 cases

This text of 646 N.E.2d 673 (Nasser v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nasser v. State, 646 N.E.2d 673, 1995 Ind. App. LEXIS 98, 1995 WL 44578 (Ind. Ct. App. 1995).

Opinion

OPINION UPON REHEARING 1

SULLIVAN, Judge.

Jeffrey Nasser (Nasser) appeals his conviction of operating a vehicle with .10 percent or more aleohol in his blood (OVBAC .10%), a class C misdemeanor. 2

We affirm.

Nasser raises two issues for our review upon this rehearing:

(1) whether the trial court erred in admitting the result of an Intoxilyzer 5000 breath test; and
(2) whether the trial court erred in refusing to permit Nasser to cross-examine *675 the investigating police officer regarding the pharmacology of alcohol absorption.

The facts most favorable to the judgment reveal that in the early morning hours of November 14, 1990, Nasser was driving northbound on Meridian Street after dining and drinking in downtown Indianapolis. Investigation revealed that Nasser had struck three parked cars as he swerved to avoid a southbound vehicle that veered into his lane. An Indianapolis Police Department (IPD) accident officer, Julie Schiff (Officer Schiff), arrived on the scene at approximately 1:16 am. and spoke with Nasser. Officer Schiff noted that Nasser appeared intoxicated. She then performed field sobriety tests, the results of which, combined with her observations, lead her to believe that Nasser was intoxicated. 3 After Nasser consented to take a chemical test for intoxication, Officer Schiff handcuffed him and placed him in the back seat of her police car at 1:40 a.m.

Nasser testified that he waited in the police car by himself for perhaps ten or fifteen minutes before Officer Schiff transported him to the downtown IPD station. At 2:10 a.m., Officer Schiff administered an Intoxilyzer 5000 breath test to Nasser at the station, resulting in a printout reading that listed "BAC Value" at "14". Record at 269, 292. The trial court found Nasser not guilty of Count I, Operating a Vehicle While Intoxicated (OVW1), and guilty of Count II, OVBAC 10%.

I. Admissibility of Intoxilyzer Test Results

Nasser launches a three-part argument, alleging that the State failed to lay a sufficient evidentiary foundation to permit the trial court to admit the Intoxilyzer test results into evidence. I.C. 9-11-4-5(d) (Burns Code Ed. Repl.1987) governs the admissibility of the breath test results in this case. A proponent who wishes to admit Intoxilyzer test results must meet three foundational requirements: (1) the operator who administered the test must be certified by the Indiana University School of Medicine Department of Pharmacology and Toxicology (Department of Toxicology); (2) the equipment used in the test must have been inspected and approved by the Department of Toxicology; and (3) the operator must have followed the procedures approved by the Department of Toxicology. I.C. 9-11-4-5(d), repealed by Acts 1991, P.L. 2-1991, § 109. For present provision, see I.C. 9-80-6-5(d) (Burns Code Ed.Supp.1994). See also Sell v. State (1986) 3d Dist.Ind.App., 496 N.E.2d 799, 801. If the proponent fails to meet the foundational requirements, the results should not be admitted into evidence.

Here, Nasser challenges both the first and the third of the above requirements. He first contests the sufficiency of the breath test operator's certification. He next maintains that Officer Schiff's testimony failed to reveal that she attached a new mouthpiece to the breath tube or that she checked the print record to be sure it was correct when administering the Intoxilyzer 5000 test. Both are required steps in the approved testing procedure as set forth by the Department of Toxicology. Ind.Admin.Code tit. 260, r. 1.1-4-4(4) and (5) (1988). Nasser also contends that Officer Schiff failed to observe him for a twenty-minute period, another step that the Department of Toxicology guidelines require. The State's lone counter to each of these attacks charges that Nasser has waived all challenges to the sufficiency of the State's foundation because he objected only upon the basis of hearsay when the State first offered the test result into evidence.

Wariver

The State is incorrect in its assertion that Nasser only objected to the admission of *676 the Intoxilyzer results upon the basis of hearsay. The record clearly reveals that Nasser lodged objections based upon inadequate foundation. First, Nasser objected to an exhibit purportedly acknowledging Officer Schiff's certification as a breath test operator, the first of the three foundation requirements discussed earlier. Nasser also fashioned the following objection before the State introduced the Intoxilyzer results:

"And I'd like to briefly for the record, to show that I believe the foundation hasn't been adequately laid for a twenty minute period of time of continuous observation. Based upon the police officer's testimony as well as Mr. Nasser's, prior to the giving of the test. I do not believe an adequate foundation has been laid at this time." Record 290-91.

Nasser contends that the final sentence of this objection, "I do not believe an adequate foundation has been laid ...", is sufficient to preserve all alleged foundation deficiencies upon appeal. We disagree. Such an objection is a general one, and, as such, is ineffective to preserve error for appellate review 4 Coleman v. State (1984) Ind., 465 N.E.2d 1130, 1135. Failure to specify the reasons why the evidentiary foundation was inadequate results in waiver of the issue upon appeal. Id. at 1185; See also Bellmore v. State (1992) Ind., 602 N.E.2d 111, 121, reh'g denied.

Here, none of Nasser's objections addressed Officer Schiff's alleged failure to check the print record, or her alleged failure to attach a new mouthpiece to the breath tube. Moreover, these grounds are not apparent from the context of a general "inadequate foundation" objection. Nasser lodged specific objections regarding the evidentiary foundation necessary to admit the Intoxilyzer results when he challenged Officer Schiff's certification and her compliance with a twenty-minute observation period. Accordingly, he preserved his right to challenge the sufficiency of the State's foundation only in those two areas. He may not raise others for the first time upon appeal. We will nevertheless address the merits of each of Nasser's contentions.

Sufficiency of the Operator's Certification

During the direct examination of Officer Schiff, the State offered State's Exhibit 1 pursuant to Ind.Trial Rule 44. Over Nasser's objection, the trial court admitted the exhibit. At the outset, we recognize that the sufficiency of a foundation is a matter addressed to the sound discretion of the trial court reversible only for an abuse of discretion. Daum v. State (1993) 1st Dist.Ind. App., 625 N.E.2d 1296, 1297, trans. denied, accord Sutton v. State (1981) 1st Dist.Ind.App., 422 N.E.2d 430.

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Bluebook (online)
646 N.E.2d 673, 1995 Ind. App. LEXIS 98, 1995 WL 44578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nasser-v-state-indctapp-1995.