State v. Albright

632 N.E.2d 725, 1994 Ind. LEXIS 49, 1994 WL 124653

• Court: Indiana Supreme Court
• Decided: April 14, 1994
• Docket: 11S01-9404-CR-344
• Status: Published

Opinions

ON PETITION TO TRANSFER

GIVAN, Justice.

In an opinion reported at 622 N.E.2d 995, the Court of Appeals affirmed the trial court's order granting appellee's motion to suppress the results of an Intoxilyzer test. They held that the administration of the third Intoxilyzer test was commenced within the twenty minute observation period in violation of Ind.Admin.Code tit. 260, r. 1.1-4-4(1) (1998).

Judge Shields wrote a dissenting opinion in which she concluded that the administration of the Intoxilyzer test was given more than twenty minutes after the observation period and therefore the court should have reversed the trial court's decision to suppress the results of the Intoxilyzer test.

Administrative Code tit. 260, r. 1.1-4-4(1) (1998) requires a twenty minute waiting period prior to the administration of the Intoxi-lyzer 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-aleohol content reading. Tyner v. State (1987), Ind.App., 503 N.E.2d 444. Therefore, the State must prove that the test was administered in the proper manner.

In the case at bar, the evidence is undisputed that Officer Jones gave appellee an initial Intoxilyzer test following which he saw some fragments of what appeared to be the hull off of some peanuts which appellee must have had hidden in his mouth. Officer Jones also testified that he immediately gave appel-lee a second test and then waited twenty-four or twenty-five minutes before he administered the third test. On the third test, ap-pellee's blood-aleohol content registered 18% which served as the basis for the charge of Driving While Intoxicated.

The Court of Appeals opined that Officer Jones confirmed on eross-examination that the three Intoxilyzer tests were administered at 8:14, 8:18, and 8:38 am. However, this Court's review of the record finds no such confirmation. The figures "3:14," "8:18," and "3:38" only appear once during the cross-examination of Officer Jones at the suppression hearing for the Intoxilyzer test. The following is the relevant portion of Officer Jones' cross-examination:

Q. You did not [check the department time and compare it to the display time] on the first test, second test or third test?

A. No.

Q. The one at 3:14, 8:18 or 8:88?

A. No, I compared it with my watch, not the department time.

Judge Shields correctly states in her dissent that appellee's counsel's question, to which Officer Jones responded in the negative, is not evidence that the second Intoxi-lyzer test occurred at 8:18 am. nor is it evidence that the third test occurred at 8:88 am. Therefore, Officer Jones' testimony that he waited twenty-four or twenty-five minutes before administering the third Intox-ilyzer test is uncontradicted. Based on the uncontradicted evidence in this case, it seems clear that Officer Jones gave the appellee the test after the twenty minute observational period. The State has met its burden of showing that the Intoxilyzer test was administered properly. The trial court erred in suppressing the results of the Intoxilyzer test.

We grant transfer and reverse the trial court.

SHEPARD, C.J., and SULLIVAN, J., concur. DeBRULER, J., dissents with separate opinion in which DICKSON, J., concurs.