                                                                  Dec 21 2015, 5:44 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John R. Watkins                                           Gregory F. Zoeller
Arata Law Firm                                            Attorney General of Indiana
Fort Wayne, Indiana
                                                          Ian McLean
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Edward Wolpert,                                           December 21, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          01A02-1506-CR-561
        v.                                                Appeal from the Adams Superior
                                                          Court
State of Indiana,                                         The Honorable Patrick R. Miller,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          01D01-1412-CM-339



May, Judge.




Court of Appeals of Indiana | Opinion 01A02-1506-CR-561 | December 21, 2015              Page 1 of 6
[1]   Edward Wolpert appeals his conviction of Class A misdemeanor operating a

      vehicle with an alcohol concentration equivalent of .15 or more. 1 Wolpert

      argues the trial court abused its discretion when it admitted his EC/IR II test 2

      results because the State did not lay a proper foundation for the admission of

      that evidence. We affirm.


                                     Facts and Procedural History
[2]   On December 19, 2014, police stopped Wolpert’s vehicle. The officer noticed

      the smell of alcohol on Wolpert’s breath and asked Wolpert if he would submit

      to a chemical test to determine his blood alcohol content. Wolpert agreed and

      was transported to the Adams County Sheriff’s Office where Officer Derek

      Loshe administered a breath test using the Intox EC/IR II. Wolpert’s breath

      samples tested at .151 and .153 grams per 210 liters of breath.


[3]   The State charged Wolpert with Class A misdemeanor operating a vehicle with

      an alcohol concentration equivalent to .15 or more. During Wolpert’s bench

      trial, he objected to the admission of the test results from the Intox EC/IR II,

      arguing the State did not lay a proper foundation because it had not proved the

      certification of the dry gas used to calibrate the Intox EC/IR II that tested

      Wolpert. The trial court denied Wolpert’s objection and convicted him of Class




      1
          Ind. Code § 9-30-5-1(b).
      2
       The EC/IR test is a chemical test that uses two breath samples to determine the alcohol content in a
      person’s body.

      Court of Appeals of Indiana | Opinion 01A02-1506-CR-561 | December 21, 2015                      Page 2 of 6
      A misdemeanor operating a vehicle with an alcohol concentration equivalent to

      .15 or more.


                                      Discussion and Decision
[4]   “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.” Fields v. State,

      807 N.E.2d 106, 109 (Ind. Ct. App. 2001), trans. denied. An abuse of discretion

      occurs when the trial court’s decision is clearly against the logic and effect of

      the facts and circumstances before the court, or if the trial court has

      misinterpreted the law. Nivens v. State, 832 N.E.2d 1134, 1136 (Ind. Ct. App.

      2005), reh’g denied. The State has the burden of establishing the foundation for

      admitting the results. Fields, 807 N.E.2d at 109. A trial court ruling will be

      upheld if it is sustainable on any legal theory supported by the record, even if

      the trial court did not use that theory. Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct.

      App. 2008).


[5]   The results of a chemical test involving the analysis of a person’s breath are not

      admissible in a proceeding concerning driving while intoxicated, Ind. Code § 9-

      30-5-1(b), if “(1) the test operator; (2) the test equipment; (3) the chemicals used

      in the test, if any; or (4) the techniques used in the test; have not been approved

      in accordance with the rules adopted under subsection (a).” Ind. Code § 9-30-6-

      5(d). Under subsection (a), the director of the state department of toxicology is

      required to adopt rules regarding, in relevant part: “(2) Standards and




      Court of Appeals of Indiana | Opinion 01A02-1506-CR-561 | December 21, 2015   Page 3 of 6
      regulations for the: (A) selection; and (B) certification; of breath test equipment

      and chemicals.” Ind. Code § 9-30-6-5(a).


[6]   Wolpert argues the State did not prove the “chemicals used in the test” were

      certified under Ind. Admin. Rule 2-3-5, which states:

              The property values of chemicals used in the inspections
              described in section 2 of this rule and used as controls in the
              performance of evidentiary breath tests shall be certified by a
              procedure that establishes traceability to an accurate realization
              of the unit in which the property values are expressed, and for
              which each certified value is accompanied by an uncertainty at a
              stated level of confidence.


[7]   However, the State need not admit evidence that demonstrates the certification

      of the chemicals alone because proof of that certification is provided by the

      certificate that proves the breath test equipment passed the required inspection.

      It is included in the administrative rule regarding certification and inspection of

      the breath test equipment, which states in relevant part:

              (a) A person authorized by the department shall inspect each
              breath test instrument at the instrument’s established location at
              least once every one hundred eighty (180) days. If the location of
              a breath test instrument is changed, the instrument must be
              inspected and certified under this rule prior to use.


              (b) The inspection shall include at least one (1) test
              demonstrating that the breath test instrument:


                       (1) is in good operating condition; and



      Court of Appeals of Indiana | Opinion 01A02-1506-CR-561 | December 21, 2015   Page 4 of 6
                       (2) satisfies the accuracy requirements in subsection . . . (f).


              (c) The inspection shall include tests using ethanol-water or ethanol-gas
              standards selected and certified under section 5 of this rule to simulate
              breath samples.


              (d) The analytical results of inspection tests shall be expressed to
              the third decimal place.


                                                      ***


              (f) The analytical results of Intox EC/IR II breath test
              instruments shall not deviate more than five percent (5%) or
              0.005, whichever is greater, from the certified value of the
              ethanol-water standard or the value adjusted for the ambient
              barometric pressure of the certified ethanol-gas standard.


      260 Ind. Admin. Rule 2-3-2 (2014) (emphasis added).


[8]   The State entered into evidence the signed “Certificate of Inspection and

      Compliance of Breath Test Instrument,” which stated “Inspection of the

      instrument listed below was performed pursuant to 260 IAC 2, and it is hereby

      certified that the instrument is in compliance with the standards of 260 IAC 2-3-

      2[.]” (State’s Exhibit 1.) This certificate was “admissible and constitute[d]

      prima facie evidence that the equipment or chemical was inspected and

      approved by the Department of Toxicology and was in proper working

      condition on the date of the chemical breath test if the approval was given not

      more than 180 days before the chemical breath test.” Fields, 807 N.E.2d at 111.

      Ind. Admin. Rule 2-3-2 requires that the inspector examine not only the device

      Court of Appeals of Indiana | Opinion 01A02-1506-CR-561 | December 21, 2015         Page 5 of 6
       but also the chemicals used within. The State provided evidence such

       certification existed. We therefore cannot say the trial court abused its

       discretion when it admitted the results of Wolpert’s breath test. 3


                                                   Conclusion
[9]    The trial court did not abuse its discretion when it admitted the results of

       Wolpert’s breath test because the State provided a proper foundation for its

       admission by submitting the inspection certification as required by Ind. Code §

       9-30-6-5(d). Accordingly, we affirm.


[10]   Affirmed.


       Crone, J., and Bradford, J., concur.




       3
        Both parties cite State v. Rumple, 723 N.E.2d 941 (Ind. Ct. App. 2000), in support of their respective
       arguments. However, our decision in Rumple was based on a now-repealed version of the Indiana
       Administrative Code regarding the certification of devices used to measure a person’s BAC and thus is not
       applicable to this case.

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