                                                                                 FILED
                                                                             Nov 29 2018, 5:38 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Marc Lopez                                                Curtis T. Hill, Jr.
      Matthew Kroes                                             Attorney General of Indiana
      The Marc Lopez Law Firm
      Indianapolis, Indiana                                     Tyler G. Banks
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Brian Harold Connor,                                      November 29, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-442
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Steven J. Rubick,
      Appellee-Plaintiff.                                       Magistrate
                                                                Trial Court Cause No.
                                                                49G19-1703-CM-10257



      Najam, Judge.


                                        Statement of the Case
[1]   Brian Harold Connor appeals his conviction for operating a vehicle with an

      alcohol concentration equivalent to at least 0.08 gram of alcohol but less than

      0.15 gram of alcohol per 210 liters of breath, as a Class C misdemeanor,

      Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018                           Page 1 of 12
      following a bench trial. Connor raises two issues for our review, one of which

      we find dispositive, namely, whether the trial court abused its discretion when it

      admitted into evidence the results of a chemical breath test.


[2]   We reverse.1


                                  Facts and Procedural History
[3]   On March 17, 2017, the Indianapolis Metropolitan Police Department

      (“IMPD”) conducted a sobriety checkpoint near the intersection of Delaware

      Street and Michigan Street. At approximately 7:25 p.m., Connor arrived at the

      sobriety checkpoint, and IMPD Captain Don Weilhamer stopped Connor.

      Captain Weilhamer noticed that there “was an odor of alcoholic beverage

      coming from” Connor. Tr. Vol. II at 43. He further noticed that Connor’s eyes

      were “bloodshot and glassy. He was also reacting rather slowly when [Captain

      Weilhamer] was asking him for his driver’s license and registration.” Id.

      Captain Weilhamer then asked Connor how much he had had to drink, and

      Connor responded that he had had two beers.


[4]   At that point, Captain Weilhamer asked Connor to step out of the car. Captain

      Weilhamer then administered a series of field sobriety tests to Connor. Connor

      passed the test that required him to stand on one leg, but he failed the

      horizontal gaze nystagmus test and the walk and turn test. Captain Weilhamer



      1
        We held oral argument in this case on October 26, 2018, at Washington High School in Washington,
      Indiana. We thank counsel for their excellent advocacy and extend our appreciation to the administration,
      faculty, staff, and students of Washington High School for their hospitality.

      Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018                           Page 2 of 12
      then read Connor the implied consent advisement, and Connor agreed to take a

      chemical breath test.


[5]   Captain Weilhamer escorted Connor to a local police station and administered

      a breath test using the Intox EC/IR II machine. When Connor blew into the

      mouthpiece for the test, he blew so hard that the instrument registered a

      “maximum flow exceeded” message. Id. at 51. Captain Weilhamer then

      waited approximately three minutes, replaced the mouthpiece, and

      administered another test using the same machine. The results of the second

      breath test showed that Connor had an alcohol concentration equivalent to

      0.097 gram of alcohol per 210 liters of breath. After Captain Weilhamer

      received the results of the test, he placed Connor under arrest and searched his

      pockets. During that search, Captain Weilhamer found a small flask inside

      Connor’s pocket that “smelled of alcohol.” Id. at 64.


[6]   The State charged Connor with one count of operating a vehicle while

      intoxicated, as a Class C misdemeanor; one count of operating a vehicle with

      an alcohol concentration equivalent to at least 0.08 gram of alcohol but less

      than 0.15 gram of alcohol per 210 liters of breath, as a Class C misdemeanor;

      and one count of possessing an open alcoholic container during the operation of

      a motor vehicle, as a Class C infraction.


[7]   The trial court held a bench trial on November 13, 2017. During the trial, the

      State presented as evidence the testimony of IMPD Lieutenant Richard Kivett,

      who was the sobriety checkpoint commander on March 17. Lieutenant Kivett


      Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018    Page 3 of 12
      testified about the details of the sobriety checkpoint. At the end of Lieutenant

      Kivett’s testimony, Connor moved to suppress evidence that officers had

      obtained at the checkpoint on the ground that the checkpoint was

      unconstitutional. The trial court bifurcated the trial and allowed the parties to

      submit briefs on the constitutionality of the checkpoint. Thereafter, the trial

      court denied Connor’s motion to suppress.


[8]   The trial court continued the trial on February 5, 2018. During the second

      phase of the trial, the State presented the testimony of Captain Weilhamer as

      evidence. Captain Weilhamer testified about his observations of Connor at the

      sobriety checkpoint and about the results of the field sobriety tests. He also

      testified that, based on his observations of Connor and the failed field sobriety

      tests, he had decided to administer a chemical breath test to Connor. Captain

      Weilhamer then testified about the procedure he had followed when he

      administered the breath test. Specifically, he testified that, when he had

      attempted to perform the test the first time, “Connor blew so hard that the

      instrument registered maximum flow exceeded.” Id. at 51. Captain Weilhamer

      testified that, after he had received the error message, he waited approximately

      three minutes and performed another test using the same machine.


[9]   During the State’s direct examination of Captain Weilhamer, Connor moved to

      suppress the results of the chemical breath test. In his motion, Connor asserted

      that the results of that test were inadmissible because the procedures Captain

      Weilhamer had followed when he administered the test had “not been

      approved in accordance with the rules” adopted by the Department of

      Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018      Page 4 of 12
       Toxicology. Id. at 54. The trial court denied Connor’s motion. The State then

       moved to admit the results of the chemical breath test as evidence, which the

       trial court admitted over Connor’s objection.


[10]   At the conclusion of the bench trial, the court found Connor guilty of operating

       a motor vehicle with an alcohol concentration equivalent to at least 0.08 gram

       of alcohol but less than .15 gram of alcohol per 210 liters of breath, as a Class C

       misdemeanor, but not guilty of the remaining two counts. The trial court

       entered judgment of conviction and sentenced Connor accordingly. This

       appeal ensued.


                                       Discussion and Decision
[11]   Connor asserts that the trial court abused its discretion when it admitted into

       evidence the results of the chemical breath test. Connor initially challenged the

       admission of this evidence through a motion to suppress but now appeals

       following a completed trial. Thus, the issue is appropriately framed as whether

       the trial court abused its discretion by admitting the evidence at trial. 2 Lanham

       v. State, 937 N.E.2d 419, 421-22 (Ind. Ct. App. 2010).


[12]   “‘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.’” Wolpert v. State,




       2
         Connor asserts that the trial court erred when it denied his motion to suppress. However, because Connor
       appeals after a completed trial, “the question of whether the trial court erred in denying his motion to
       suppress is no longer viable.” Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).

       Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018                           Page 5 of 12
       47 N.E.3d 1246, 1247 (Ind. Ct. App. 2015) (quoting Fields v. State, 807 N.E.2d

       106, 109 (Ind. Ct. App. 2004)). “An abuse of discretion occurs when the trial

       court’s decision is contrary to the logic and effects of the facts and

       circumstances before it, or when the trial court errs on a matter of law.” Wilson

       v. State, 973 N.E.2d 1211, 1213-14 (Ind. Ct. App. 2012). On appeal, Connor

       specifically contends that the trial court abused its discretion when it admitted

       the results of the chemical breath test as evidence because Captain Weilhamer

       did not administer the test “in accordance with the rules” set out by the

       Department of Toxicology. Appellant’s Br. at 15.


[13]   Indiana Code Section 9-30-6-5(a) (2018) provides that “[t]he director of the

       state department of toxicology shall adopt rules under IC 4-22-2 concerning . . .

       [t]he certification of the proper technique for administering a breath test.” The

       results of a chemical breath test “are not admissible” if the techniques used in

       the test “have not been approved in accordance with the rules adopted” by the

       Department of Toxicology. Ind. Code § 9-30-6-5(d)(4); see also Short v. State,

       962 N.E.2d 146, 149 (Ind. Ct. App. 2012). “Because the State is the party

       offering the results of the breath test, it has the burden of establishing the

       foundation for admitting the results.” Short, 962 N.E.2d at 149. “Therefore,

       the State must set forth the proper procedure for administering a chemical

       breath test and show that the operator followed that procedure.” Id.


[14]   Pursuant to Indiana Code Section 9-30-6-5, the Department of Toxicology has

       adopted rules concerning the proper technique a test operator must follow when

       administering a breath test using an Intox EC/IR II breath test instrument,

       Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018        Page 6 of 12
       which is the instrument Captain Weilhamer used to administer the breath test

       to Connor. In particular, those rules prescribe twelve steps a test operator is

       required to follow in order to properly administer a breath test. See 260 Ind.

       Admin. Code 2-4-2(a) (2014),

       http://www.in.gov/legislative/iac/iac_title?iact=260. Those rules also

       anticipate that, following those initial twelve steps, a test operator may receive

       one of six specified error messages, namely: “Please blow”; “Interfering

       Substance”; “RFI Detected”; “Mouth Alcohol”; “Insufficient Sample”; or

       “Time Out.”3 260 I.A.C. 2-4-2(b). In the event a test operator receives one of

       those error messages, the rules provide for additional procedures the test

       operator must follow in order to re-administer the breath test. See id.


[15]   Here, when Captain Weilhamer initially administered the breath test to

       Connor, the machine displayed an error message that read “maximum flow

       exceeded.” Tr. Vol. II at 51. There is no dispute that the Department of

       Toxicology’s rules neither identify that error message as a possible initial breath

       test result nor prescribe the technique that a test operator must follow when the

       instrument displays that message. As such, Connor contends that that error

       message was an “unanticipated problem” for which there is no direction in the

       administrative code and, therefore, Captain Weilhamer’s resolution “has




       3
         In his brief on appeal, Connor states that the administrative rules address the following error messages:
       please blow, subject sample interferent, subject sample invalid, radio interference, and subject sample
       incomplete. But those are the potential error messages that can appear on the report when the test operator
       uses the BAC DataMaster breath test instrument. See 260 I.A.C. 2-4-1.

       Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018                             Page 7 of 12
       neither been approved . . . by the Department of Toxicology nor codified in the

       Indiana Administrative Code.” Appellant’s Br. at 16. In essence, Connor

       contends that the breath test results were inadmissible because the Department

       of Toxicology has not designated the proper procedure to be followed when

       administering a breath test after having received a “maximum flow exceeded”

       error message, a message that is not addressed in the administrative code. We

       must agree.


[16]   The “[i]ntroduction of a breath test lends the aura of scientific certainty to a

       prosecution for driving while intoxicated, often sealing the fate of the offender

       in the mind of the trier of fact.” Bowman v. State, 564 N.E.2d 309, 311 (Ind. Ct.

       App. 1990), summarily aff’d in relevant part, 577 N.E.2d 569, 571 (Ind. 1991).

       “Thus, the detailed procedures to be followed,” as adopted by the Department

       of Toxicology, “reflect a determination that the test should be as accurate and

       free from uncertainty as possible.” Id.


[17]   But neither our trial courts nor this court have the requisite knowledge to

       determine whether the technique that is to be followed after an error message is

       the correct technique when that error message has not been addressed in the

       administrative code. Rather, the Indiana General Assembly has tasked the

       Department of Toxicology with promulgating rules concerning the proper

       technique for administering a breath test because the Department possesses the

       specialized knowledge of how the breath test machines work. Because courts

       lack the necessary expertise that the Department of Toxicology possesses, our

       Supreme Court has made clear that “breath test results may be admitted only

       Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018       Page 8 of 12
       when the test was conducted in ‘strict compliance’ with” the regulations

       adopted by the Department of Toxicology. State v. Cioch, 908 N.E.2d 1154,

       1156 (Ind. 2009).


[18]   The State acknowledges that “[t]he Administrative Code is silent as to what

       officers must do when an error resulting from too much breath being blown

       appears.” Appellee’s Br. at 17-18. Nonetheless, the State contends that

       Captain Weilhamer “correctly presumed that a second test was required and

       administered a second test” because, “[f]or every one of the listed error

       messages that are outlined in the regulation, the next step is to ‘perform an

       additional breath test[.]’” Id. (quoting 260 I.A.C. 2-4-2).4


[19]   While the State is correct that a test operator must perform an additional breath

       test if the operator receives any of the listed six error messages, the actual steps

       that a test operator must take when administering the second test vary based on

       the specific message received. For instance, if “Please blow” appears, the test

       operator is to perform an additional breath test, beginning with step eleven. 260

       I.A.C. 2-4-2(b)(1). If after the second test, “No. 0.020 Agreement” is displayed,




       4
          The State relies on Hurley v. State, 75 N.E.3d 1074, 1080 (Ind. 2017), to support its assertion that “[o]ur
       Supreme Court has interpreted [260 Indiana Administrative Code 2-4-2] to ‘presumptively require[]’ a second
       test to be administered if the first attempt at administration should fail, provided that the suspect is not
       refusing the test.” Appellee’s Br. at 17. But the State’s reliance on Hurley is misplaced. Hurley specifically
       states that 260 Indiana Administrative Code 2-4-2 “requires an officer to administer a second test after the
       first test returns an insufficient sample unless the subject clearly manifests an unwillingness to take the test.”
       Hurley, 75 N.E.3d at 1077 (emphasis added). Thus, our Supreme Court in that case did not interpret the
       entire regulation as requiring an officer to administer a second test if the first test should fail for any reason.
       Rather, that court’s holding was limited to the procedure an officer should follow if the instrument displays
       one particular error message, which is not at issue here.

       Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018                                  Page 9 of 12
       the operator must perform an additional breath test beginning with step two and

       proceeding through step twelve. Id. Similarly, if “RFI Detected”; “Insufficient

       Sample”; or “Time Out” is displayed, the operator should administer an

       additional breath test beginning at step two and proceeding through step twelve.

       See 260 I.A.C. 2-4-2(b)(3) and (5).


[20]   However, for both the “Interfering Substance” and “Mouth Alcohol” messages,

       the operator is to administer a second breath test beginning at step one. See 260

       I.A.C. 2-4-2(b)(2) and (4). For those errors that require the test operator to

       begin at step one, the test operator must wait fifteen minutes before

       administering the second test. See 260 I.A.C. 2-4-2(a). But for those errors that

       require the test operator to begin at step two, there is no set amount of time that

       a test operator must wait before administering the second test. See id.


[21]   In other words, contrary to the State’s assertion, there is no single protocol for a

       test operator to follow when administering an additional breath test after having

       received an error message. Rather, there is a significant difference in the

       procedure to be followed depending on the error message. Without direction

       from the Department of Toxicology on how to properly proceed following the

       “maximum flow exceeded” error message, we cannot say that Captain

       Weilhamer’s decision to simply wait three minutes before administering a

       second test using the same machine was correct. We cannot determine whether

       Captain Weilhamer should have re-administered the test beginning at step one,

       which requires a fifteen-minute wait before the second test, or whether he

       should have re-administered the test beginning at step two, which does not

       Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018      Page 10 of 12
       require the test operator to wait before administering the second test, or whether

       the Department of Toxicology would prescribe an entirely different protocol for

       the second test.5


[22]   In sum, the evidence does not show that the technique Captain Weilhamer used

       to administer the second breath test to Connor was an authorized technique

       that produced an accurate test result. When Captain Weilhamer received an

       error message for which there was no corresponding protocol in the

       administrative code, he improvised. Because the technique he used had not

       been approved in accordance with a rule promulgated by the Department of

       Toxicology, as a matter of law the results of the breath test were not admissible.

       I.C. § 9-30-6-5(d)(4). The trial court therefore abused its discretion when it

       admitted that evidence. And we cannot say that the error in the admission of

       the breath test results was harmless, as the State did not present any other

       evidence to establish that Connor had operated a motor vehicle with an alcohol

       concentration equivalent to more than 0.08 gram per 210 liters of breath.6




       5
          Until the Department of Toxicology provides a technique for a test operator to follow when the “maximum
       flow exceeded” error appears on the machine, the test operator can either obtain an alternate chemical test,
       such as a blood test, or perform a breath test on another breath test machine. Indeed, for each of the listed
       error messages, a test operator has the option of obtaining an alternate chemical test for ethanol or
       performing an additional breath test on another instrument instead of performing a second test on the
       machine in question. See, e.g., 260 I.A.C. 2-4-2(b)(1)(B) and (C).
       6
         The State did present as evidence Captain Weilhamer’s testimony that Connor smelled of alcohol, that he
       had bloodshot and glassy eyes, and that he had failed two field sobriety tests. However, that evidence does
       not support his conviction for operating a motor vehicle with a specific alcohol concentration between 0.08
       and 0.15 gram of alcohol per 210 liters of breath.

       Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018                           Page 11 of 12
[23]   Thus, we hold that the trial court erred when it admitted the results of the

       breath test as evidence because Captain Weilhamer had administered the test

       using a procedure that had not been approved by the Department of

       Toxicology. And we hold that the admission of the breath test was not

       harmless error, as it was the only evidence that the State presented to support

       his conviction. We therefore reverse Connor’s conviction for operating a motor

       vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol

       but less than 0.15 gram of alcohol per 210 liters of the person’s breath.7


[24]   Reversed.


       Bailey, J., and May, J., concur.




       7
         Connor also contends that the trial court erred under Article 1, Section 11 of the Indiana Constitution
       when it admitted evidence that officers had obtained pursuant to a sobriety checkpoint that he alleges was
       unconstitutional as conducted. But, as discussed above, the only evidence the State presented to support
       Connor’s conviction was the result of the breath test. Because we hold that the only evidence to support his
       conviction was inadmissible, we need not address Connor’s contention that the sobriety checkpoint was
       unconstitutional.

       Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018                            Page 12 of 12
