MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                   FILED
regarded as precedent or cited before any                    May 24 2017, 10:16 am

court except for the purpose of establishing                       CLERK
                                                               Indiana Supreme Court
the defense of res judicata, collateral                           Court of Appeals
                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                      Bart M. Betteau
Attorney General of Indiana                              Betteau Law Office, LLC
                                                         New Albany, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        May 24, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         10A05-1701-CR-5
        v.                                               Appeal from the Clark Circuit
                                                         Court
Brian Gibson,                                            The Honorable Joseph P. Weber,
Appellee-Defendant                                       Judge
                                                         Trial Court Cause No.
                                                         10C03-1604-CM-1066



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A05-1701-CR-5 | May 24, 2017       Page 1 of 6
[1]   The State of Indiana appeals the trial court’s order suppressing the chemical

      breath test result of Brian Gibson. Finding that the order was erroneous, we

      reverse and remand for further proceedings.


                                                    Facts
[2]   On April 16, 2016, Indiana State Trooper Justin Meers was working traffic

      enforcement in Clark County when he observed a vehicle traveling at a high

      rate of speed. After the vehicle turned left without using a turn signal, Trooper

      Meers conducted a traffic stop.


[3]   Gibson was the driver of the vehicle, and when Trooper Meers made initial

      contact with Gibson, the officer detected the odor of an alcoholic beverage

      emitting from Gibson and the vehicle. Gibson had glassy, bloodshot eyes,

      slowed speech, and poor manual dexterity. He admitted to drinking two or

      three beers approximately one hour earlier. Trooper Meers conducted a

      portable breath test, which indicated a breath alcohol concentration of .139.

      Trooper Meers then administered field sobriety tests; Gibson failed two of the

      three tests.


[4]   At that point, Trooper Meers transported Gibson to the Clark County Jail,

      where Gibson agreed to submit to a chemical breath test. During the initial

      test, Gibson had three chances to provide air samples, but the instrument

      indicated that all three samples were insufficient. Following those three

      samples, the test printout indicated “insufficient sample.” Tr. p. 19. Trooper

      Meers then restarted the test and again provided Gibson with opportunities to

      Court of Appeals of Indiana | Memorandum Decision 10A05-1701-CR-5 | May 24, 2017   Page 2 of 6
      provide air samples. The second test printout again indicated “insufficient

      sample,” but also indicated a breath alcohol concentration of .136.


[5]   On April 26, 2016, the State charged Gibson with Class C misdemeanor

      operating a vehicle while intoxicated, Class C misdemeanor operating a vehicle

      with a blood alcohol concentration of .08, and Class A misdemeanor operating

      a vehicle while intoxicated endangering a person. On August 22, 2016, Gibson

      filed a motion to suppress the result of the chemical breath test. Following a

      hearing, the trial court granted the motion to suppress on December 7, 2016.

      The State now appeals.


                                   Discussion and Decision
[6]   When reviewing a trial court’s order admitting or excluding chemical breath

      test results, we will reverse only if the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances before it or if the trial court has

      misinterpreted the law. Wolpert v. State, 47 N.E.3d 1246, 1247 (Ind. Ct. App.

      2015), trans. denied. We apply a de novo standard of review to questions of law.

      State v. Keck, 4 N.E.3d 1180, 1183 (Ind. 2014). In this case, the State is

      appealing from a negative judgment; consequently, it must show that the trial

      court’s ruling was contrary to law. State v. Washington, 898 N.E.2d 1200, 1203

      (Ind. 2008).


[7]   The State has the burden of establishing the foundation for the admission of

      chemical breath test results because the State is the party offering the results of

      the test. State v. Johanson, 695 N.E.2d 965, 966-67 (Ind. Ct. App. 1998).

      Court of Appeals of Indiana | Memorandum Decision 10A05-1701-CR-5 | May 24, 2017   Page 3 of 6
      Chemical breath test results are not admissible if the test operator, test

      equipment, chemicals used in the test, or techniques used in the test were not

      approved in accordance with the rules adopted by the Department of

      Toxicology. Ind. Code § 9-30-6-5(d).1


[8]   Initially, we note that Gibson argues that the trial court properly suppressed this

      evidence because Trooper Meers failed to follow proper procedure. Gibson

      finds fault with the fact that Trooper Meers had him provide three breath

      samples for the first test, arguing that it should have been three separate tests.

      The Administrative Code, however, plainly anticipates that the machine will

      prompt for more than one breath sample per test result. 260 Ind. Admin. Code

      2-4-2(a) (see Steps Ten and Eleven). The State also points out that the

      Department of Toxicology’s publicly available training guide explains that the

      breath test machine will require a third breath sample to complete a test where

      the first two samples are inconsistent. Reply Br. p. 6. Therefore, we find no

      evidence tending to show that Trooper Meers failed to follow proper procedure

      in conducting these tests.


[9]   The Indiana Administrative Code directs an individual administering a breath

      test to take certain steps if the machine indicates that the sample is insufficient:

              If “Insufficient Sample” . . . is printed on the instrument report,
              perform an additional breath test, beginning with STEP TWO



      1
        The General Assembly amended subsections of this statute in 2017, but those amendments are not relevant
      to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1701-CR-5 | May 24, 2017               Page 4 of 6
               and proceeding through STEP TWELVE. If “Insufficient
               Sample” . . . is printed on the instrument report after this
               additional breath test:


               (A)     obtain an alternate chemical test for ethanol;


               (B)     perform a breath test on another breath test instrument; or


               (C)     if a numerical value for the subject’s breath ethanol
                       concentration is printed on any instrument report, check
                       the instrument report for the correct date and time and
                       sign the instrument report where indicated.


       260 Ind. Admin. Code 2-4-2(b)(5).


[10]   Here, the first chemical breath test result performed by Trooper Meers indicated

       “insufficient sample.” In accordance with the above section, therefore, he

       administered a second test. The result of the second test was also “insufficient

       sample,” but the second test also printed a numerical value for Gibson’s breath

       ethanol concentration. Pursuant to subsection (C) above, therefore, Trooper

       Meers checked the instrument report for the correct date and time and signed

       the report.


[11]   The trial court did not find fault with the actions of Trooper Meers; instead, it

       was concerned about the reliability of the result because of “the fact that the

       machine identified the sample as insufficient.” Appealed Order p. 1. The

       General Assembly has mandated that evidence of a person’s blood alcohol

       concentration “is admissible,” subject to an exception for situations in which


       Court of Appeals of Indiana | Memorandum Decision 10A05-1701-CR-5 | May 24, 2017   Page 5 of 6
       the person administering the test did not follow proper procedure. I.C. §§ 9-30-

       6-15(a) (evidence “is admissible), -5 (exception where proper techniques not

       followed); see also Rembusch v. State, 836 N.E.2d 979, 983 (Ind. Ct. App. 2005)

       (holding that the State may offer breath test results without an expert witness).


[12]   We acknowledge the concerns voiced by the trial court:

               We didn’t have enough of the sample for the machine to
               function, but in the instructions, it says but if it happens to spit
               out a number you just sign off on it and move it on. . . . [T]o me
               the word insufficient is hard to overcome and using the results
               from the machine to go forward.


       Tr. p. 35-36. These concerns, however, do not affect the admissibility of the

       evidence. The General Assembly has dictated that this type of evidence is

       admissible unless proper procedures are not followed, and here, the trial court

       found that Trooper Meers did, in fact, follow proper procedures. See id. (noting

       that Trooper Meers “did what [he was] supposed to do”). Instead, these

       concerns go to the weight of the evidence and must be evaluated and weighed by

       the trier of fact. Given the plain language of the relevant statutes and the

       Administrative Code, the evidence is admissible and the trial court erred by

       suppressing it.


[13]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Barnes, J., and Crone, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 10A05-1701-CR-5 | May 24, 2017   Page 6 of 6
