      MEMORANDUM DECISION
                                                                                  FILED
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                             May 14 2018, 10:08 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                          CLERK
                                                                              Indiana Supreme Court
      purpose of establishing the defense of res judicata,                       Court of Appeals
                                                                                   and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      John R. Watkins                                          Curtis T. Hill, Jr.
      Arata Law Firm                                           Attorney General of Indiana
      Fort Wayne, Indiana
                                                               Michael Gene Worden
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Robert D. Mills,                                         May 14, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               17A03-1709-CR-2251
              v.                                               Appeal from the DeKalb Superior
                                                               Court.
                                                               The Honorable Kevin P. Wallace,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               17D01-1703-CM-237




      Friedlander, Senior Judge

[1]   In this interlocutory appeal, Robert Mills challenges the trial court’s denial of

      his motion to suppress. We affirm.


[2]   The sole issue on appeal is whether the trial court erred by denying Mills’

      motion to suppress the results of his breath test.

      Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018             Page 1 of 6
[3]   On March 28, 2017, Mills was arrested for operating a motor vehicle while

      intoxicated and was transported to the Dekalb County Jail. The officer checked

      Mills’ mouth for any foreign substances and did not find any. At the jail, the

      arresting officer and the jail staff removed everything from Mills’ pockets and

      performed another mouth check. Subsequently, the officer escorted Mills

      through a locked door and down a secure hallway to a room where breath tests

      are administered. Mills was not in handcuffs. Although there is video

      surveillance of the breath test room, there is no surveillance of the hallway that

      leads to the room. A breath test was then administered to Mills.

                                                                                   1
[4]   Mills was charged with operating a vehicle while intoxicated and operating a
                                                                                            2
      vehicle with an unlawful alcohol concentration in blood or breath, both Class

      C misdemeanors. Mills then filed a motion to suppress the results of the breath

      test. Following a hearing, the trial court denied Mills’ motion. Mills now

      brings this interlocutory appeal.


[5]   Mills contends the trial court erred by denying his motion to suppress the results

      of his breath test because the State failed to lay a sufficient foundation for their

      admission. Particularly, Mills argues that because he was not handcuffed and

      was very briefly behind the officer when entering the hallway that had no video




      1
          Ind. Code § 9-30-5-2(a) (2001).
      2
          Ind. Code § 9-30-5-1(a) (2001).


      Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018       Page 2 of 6
      surveillance, the State could not show that he had not put anything into his

      mouth during the requisite fifteen-minute period.


[6]   As the party offering the breath test results, the State has the burden of

      establishing the foundation for their admission. Wolpert v. State, 47 N.E.3d

      1246 (Ind. Ct. App. 2015), trans. denied. In order for the results of a chemical

      breath test to be admissible, the test operator, test equipment, chemicals used in

      the test, and techniques used in the test must have been approved in accordance

      with the rules adopted by the Department of Toxicology. Ind. Code § 9-30-6-

      5(d) (2011). Thus, the State must set forth the proper procedure for

      administering a chemical breath test and show that the operator followed that

      procedure. State v. Molnar, 803 N.E.2d 261 (Ind. Ct. App. 2004).


[7]   The sufficiency of a foundation for admitting the results of a breath test is a

      matter within the sound discretion of the trial court. Stewart v. State, 754

      N.E.2d 608 (Ind. Ct. App. 2001). Thus, we will reverse a trial court’s decision

      on the matter only if it is clearly against the logic and effect of the facts and

      circumstances before the court or if the court has misinterpreted the law. Nivens

      v. State, 832 N.E.2d 1134 (Ind. Ct. App. 2005).


[8]   The procedure promulgated by the Department of Toxicology for administering

      a breathalyzer test and set forth in the administrative code states, in relevant

      part, “The person to be tested must not have put any foreign substance into his

      or her mouth or respiratory tract … within fifteen (15) minutes before the time

      the first breath sample is taken.” 260 Ind. Admin. Code 2-4-2 (2014).


      Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018   Page 3 of 6
[9]   Here, the officer testified that he performed a “mouth check” on Mills and

      explained that this includes looking “inside the mouth of the individual” and

      having “him lift his tongue to verify that there’s no foreign objects inside their

      mouth.” Tr. p. 6. In addition, the officer and the jail staff removed everything

      from Mills’ pockets when he arrived at the jail and performed another mouth
                                                                                          3
      check. Further, during viewing of the jail’s surveillance video, the officer

      testified as follows:


              Q:     Where were you going at this point? You’re going
              through a door and the Defendant is behind you. Where are you
              going?
              A:       I was going to the intox [breath test] room.
              Q:       Ok. Now how long was the Defendant behind you?
              A:     Typically I just open the door for them right here and then
              I shut the door and walk, follow them down to the intox room.
              *******
              Q:     Ok. So do you hold the door open for him and then he
              gets in front of you?
              A:     Right and because it’s a secured site, that door’s always
              locked until a jailer in another room opens it. So I make sure
              that door locks behind after he goes through.
              Q:    Alright, ok. So that’s how you would do this basically any
              time?
              A:       Yes.




      3
       Although the jail’s surveillance video was viewed and discussed during the suppression hearing, it was not
      admitted as an exhibit and was not included in the documents on appeal. The video showed Mills and the
      officer as they were entering the hallway to the breath test room and then when they were arriving at and
      while they were in the breath test room. The hallway itself had no video surveillance.

      Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018              Page 4 of 6
               *****
               Q:      But he walks in front of you from that point forward?
               A:      Yes, I believe so.
       Id. at 9-10.


               Q:    I’m gonna ask you officer, was there any time you made
               any observation or any type of observation at all where you
               thought that he had a foreign, a foreign object in his mouth at
               any time?
               A:      No.
               Q:   And is it, you, did you follow the standard approved
               methods checklist?
               A:      I did follow the approved method.
       Id. at 12.


[10]   Mills attempts to make much of the fact that the surveillance video shows the

       officer walking in front of him to open the door to the hallway leading to the

       breath test room. He suggests that the officer remained in front of him through

       the doorway and down the hallway and, therefore, claims the officer was

       unable to observe if he put a foreign object in his mouth. In his reply brief,

       Mills further proposes that the State did not negate the possibility that he put his

       finger and/or his fingernail in his mouth in the hallway during this time. Yet,

       these arguments ignore the officer’s testimony. The officer testified that, as he

       entered the hallway to go to the breath test room, Mills was behind him. He

       held the door open for Mills to enter the hallway, made sure the door was

       securely shut, and then followed Mills down the hallway. See id. at 9-10. The

       officer further testified that at no time did he observe a foreign object in Mills’


       Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018   Page 5 of 6
       mouth. Id. at 12. The State met its burden of establishing the requisite

       procedure for admission of chemical breath test results. Thus, the trial court did

       not abuse its discretion in denying Mills’ motion to suppress the results.


[11]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018   Page 6 of 6
