MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
court except for the purpose of establishing                       Feb 28 2017, 9:06 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jane Ann Noblitt                                         Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anastacia Sanchez-Franco,                                February 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A04-1610-CR-2279
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable Kathleen Tighe
Appellee-Plaintiff.                                      Coriden, Judge

                                                         Trial Court Cause No.
                                                         03D02-1507-CM-3281



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017   Page 1 of 10
[1]   Anastacia Sanchez-Franco appeals her conviction for operating with a blood

      alcohol content of .08 as a class C misdemeanor. Sanchez-Franco raises one

      issue which we revise and restate as whether the trial court abused its discretion

      in admitting into evidence the results of a breath test. We affirm.


                                      Facts and Procedural History

[2]   On June 14, 2015, Columbus Police Officer Maren Crabtree observed Sanchez-

      Franco drive left of center over a double yellow line and initiated a traffic stop.

      Officer Crabtree noticed the smell of an alcoholic beverage on Sanchez-Franco

      and asked her if she had anything to drink. Sanchez-Franco replied that she

      had had two drinks, Officer Crabtree administered three field sobriety tests

      which Sanchez-Franco failed, and Sanchez-Franco agreed to take a breath test

      and was transported to the police station. At the station, Officer Charles

      Bernard Sims administered a certified breath test, and the results indicated that

      Sanchez-Franco’s blood alcohol content was 0.099.


[3]   On July 1, 2015, the State charged Sanchez-Franco with: Count I, operating

      while intoxicated endangering a person as a class A misdemeanor; and Count

      II, operating with an alcohol concentration equivalent of at least 0.08 as a class

      C misdemeanor. The court held a suppression hearing on February 24, 2016.

      Sanchez-Franco filed a memorandum in support of motion to suppress on




      Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017   Page 2 of 10
      March 7, 2016, the State filed a response on March 11, 2016, and the court

      denied Sanchez-Franco’s motion to suppress on March 22, 2016. 1


[4]   On May 25, 2016, the trial court held a bench trial at which the State presented

      the testimony of Officers Crabtree and Sims. Officer Sims testified that he

      administered a certified breath test, that at the time he was certified to do so,

      and that he followed the standard procedures for that test. When asked the test

      results, Sanchez-Franco’s counsel objected and argued: “I don’t think that the

      foundation has been laid to be able to get any results in of this test. Specifically

      they have to lay the foundation that he has been certified to (garbled) specific

      instrument and I don’t know what instrument.” Transcript at 42. The

      prosecutor presented State’s Exhibit 2, which contains a memorandum from the

      State Department of Toxicology stating that the officers named in the document

      are certified and recertified to administer evidentiary breath tests between

      November 2013 and November 30, 2015, and Officer Sims’s name is included

      in the list. The prosecutor also presented State’s Exhibit 3, which contains a

      Certificate of Inspection and Compliance of Breath Test Instrument stating that

      inspection of the instrument listed was performed, it was certified that the

      instrument was in compliance with the standards of 260 IAC 2-3-2, the

      inspection date was June 9, 2015, the instrument serial number was 010903,




      1
       The record does not contain a written motion to suppress. The transcript of the suppression hearing and
      Sanchez-Franco’s memorandum reveal that she moved to suppress the evidence based on the Fourth
      Amendment and Article 1, Section 11 of the Indiana Constitution and argued that Officer Crabtree
      mistakenly believed that she committed a traffic violation.

      Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017       Page 3 of 10
and that the agency was the Columbus Police Department. At the prosecutor’s

request, the court admitted State’s Exhibit 1 containing the instrument printout

showing the results of the breath test. The instrument printout provides:


                               Intox EC/IR-II: Subject Test
                                             *****
                     Serial Number: 010903 Test Number: 211
                   Test Date: 06/14/2015 Test Time: 04:11 EDT
                         Operator Name: Sims, Charles B
                      Operator Certification Number: B115686
                    Agency Name: COLUMBUS POLICE DEPT
                      Observation Began: 06/14/2015 at 03:50
                         Observer Name: Sims, Charles B
                       Driver License Number: 0000000000
                        Subject Name: Sanchez, Anastacia F
                           Subject D.O.B.: 04/28/1976
                                             *****
                                System Check: Passed

                         Test             g/210L           Time
                         BLK              0.000            4:12
                         CHK              0.079            4:13
                         BLK              0.000            4:14
                         SUBJ             0.103            4:16
                         BLK              0.000            4:18
                         SUBJ             0.099            4:19
                         BLK              0.000            4:21
                         CHK              0.078            4:21
                         BLK              0.000            4:23

                         Test Status Sample Complete

                                  RESULT: 0.099 g/210L
                                       4:19 EDT,

Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017   Page 4 of 10
                                                 6/14/2015

      State’s Exhibit 1.


[5]   Officer Sims testified that Sanchez-Franco removed gum from her mouth prior

      to the start of the fifteen-minute observation period. He further testified that the

      test takes two different samples from the subject, that it records the lower of the

      two samples, and that in this case that result was 0.099. The court found

      Sanchez-Franco not guilty on Count I and guilty on Count II and sentenced her

      to sixty days, all suspended to probation.


                                                  Discussion

[6]   The issue is whether the trial court abused its discretion in admitting into

      evidence the results of the breath test. Generally, we review the trial court’s

      ruling on the admission or exclusion of evidence for an abuse of discretion.

      Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only

      when the decision is clearly against the logic and effect of the facts and

      circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied.

      We may affirm a trial court’s decision regarding the admission of evidence if it

      is sustainable on any basis in the record. Barker v. State, 695 N.E.2d 925, 930

      (Ind. 1998), reh’g denied. Even if the trial court’s decision was an abuse of

      discretion, we will not reverse if the admission constituted harmless error. Fox

      v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.


[7]   Sanchez-Franco asserts that the State failed to establish the proper procedure

      for administering the breath test set forth at 260 IAC 2-4-2 and failed to show

      Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017   Page 5 of 10
      that the test operator followed that procedure. She argues that the State gave

      only cursory attention to Step One of the procedure and there was no testimony

      regarding whether she had had anything to eat or drink or had smoked. The

      State responds that Sanchez-Franco waived review of any deficiency in the

      foundation that she did not raise in the trial court and that it provided an

      adequate basis for the trial court to conclude that the standard procedure was

      applied in this case.


[8]   The Indiana Administrative Code, at 260 IAC 2-4-2, provides the approved

      method for a breath analysis using the Intox EC/IR II breath test instrument.

      We first note that Sanchez-Franco states in his appellant’s brief that he does not

      challenge Officer Sims’s certification to operate the machine or the certification

      of the instrument. With respect to her argument that the State failed to

      establish the procedure for administering the breath test, we observe that she did

      not raise that argument before the trial court and thus that argument is waived. 2

      See Mullins v. State, 646 N.E.2d 40, 44 (Ind. 1995) (noting that the defendant

      argued on appeal that the State offered no evidence of the approved procedure

      for administering the breath test, that while the defendant objected to the

      admission of the test results on other bases, he did not object on that basis at




      2
        When the prosecutor asked Officer Sims the result of the breath test, Sanchez-Franco’s counsel objected,
      stating he did not think a foundation had been laid for the admission of the test results and asserting:
      “Specifically they have to lay the foundation that he has been certified to (garbled) specific instrument and I
      don’t know what instrument.” Transcript at 42. Sanchez-Franco did not specifically object on the ground
      that the State did not establish the proper procedure for administering breath tests.

      Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017            Page 6 of 10
       trial, and that failure to state the specific basis for objection waives the issue on

       appeal).


[9]    Waiver notwithstanding, the Indiana Supreme Court has held that “the State

       need not present any evidence of what the approved procedures for

       administering a breath test are because regulations in the Administrative Code

       prescribe those procedures and because those regulations are to be judicially

       noticed.” Mullins, 646 N.E.2d at 46. See also Baran v. State, 639 N.E.2d 642,

       647-648 (Ind. 1994) (holding that, “[b]ecause this was a bench trial and the

       court was commanded by statute to take judicial notice that the breath testing

       machines must measure blood alcohol content as a percentage of alcohol by

       weight in the blood, the absence of notice was not reversible error”). We

       conclude that the approved procedure for administering a breath test was

       properly before the trial court and that, because this was a bench trial and the

       court was required to take judicial notice of the regulation concerning breath

       testing, the fact the court did not notify the parties it would take judicial notice

       of the applicable procedure does not require reversal. See Mullins, 646 N.E.2d at

       46 (holding that the regulation prescribing the proper procedure for

       administering a breath test was properly before the court).


[10]   Finally, with respect to whether Officer Sims followed the steps found at 260

       IAC 2-4-2, we note that a verbatim recitation of the procedure in the regulation

       is not required. See Baran, 639 N.E.2d at 646. The record establishes that the

       State elicited testimony from Officer Sims that he administered the breath test

       and that he followed the standard procedure for that test. When asked if he

       Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017   Page 7 of 10
       recalled the procedure or how he knew he followed it, Officer Sims answered “I

       used the form that is provided there. I go down the list, follow the form using

       standard operating procedures as called for.” Transcript at 46.


[11]   As to Step One in particular, 260 IAC 2-4-2 provides in part:

               STEP ONE: The person to be tested must:

                        (A)     have had nothing to eat or drink;

                        (B)     not have put any foreign substance into his or her
                                mouth or respiratory tract; and

                        (C)     not smoke;

               within fifteen (15) minutes before the time the first breath sample
               is taken or at any time from the taking of the first breath sample
               until after the taking of the final breath sample.


[12]   Officer Sims indicated that part of the procedure is to check for any foreign

       substances in the person’s mouth, and when asked if there were any, he testified

       “I believe she had taken out some chewing gum prior to that and then we

       waited the required fifteen minute waiting period.” Id. at 42. He later testified

       that the procedure involved “basically observing the subject, making sure there

       is nothing foreign in the mouth, checking physically,” “there’s a fifteen minute

       waiting period after that, make sure nothing else goes in the mouth after that,”

       and “[t]he time is logged when the test is started.” Id. at 46. When asked if the

       gum was removed from Sanchez-Franco’s mouth “[r]ight before the exam,”

       Officer Sims testified “(garbled) to ensure there is nothing in her mouth before

       the test starts. So once her mouth is clear” and “[a]fter her mouth is cleared,

       Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017   Page 8 of 10
       the fifteen minute observation period will start.” Id. at 47. The instrument

       printout showing the breath test results indicates that observation of Sanchez-

       Franco began at 3:50, the first sample was taken over fifteen minutes later at

       4:16, and the second sample was taken at 4:19.


[13]   Further, Sanchez-Franco does not specifically identify which step or steps

       following Step One that she believes Officer Sims did not perform. We note

       that a number of the steps beyond Step One in 260 IAC 2-4-2 are primarily

       administrative in nature, such as entering information into the test instrument, 3

       and the fields contained in the instrument printout for Sanchez-Franco are

       completed with the information referenced in those steps, indicating the

       instrument operator entered the information as requested. Officer Sims testified

       he followed the procedure, and the instrument printout identifies the instrument

       used, states that a system check passed, indicates the name of Officer Sims and

       his certification number as the operator, provides that the observation began at

       3:50 on June 14, 2015, indicates that Officer Sims was the test observer,

       identifies Sanchez-Franco as the subject and states her date of birth, and

       provides that the result of the second breath test sample was 0.099 grams of



       3
         Steps Two and Three involve verifying the instrument is in ready mode and pressing enter to start the test;
       Step Four is inserting an identification card and entering the information of the breath test operator; Step
       Five is entering the beginning date and time of the fifteen-minute observation period; Steps Six and Seven
       involve entering the information of the officer with control of the subject during the fifteen-minute period;
       Step Eight is to enter incident information requested by the instrument display; Step Nine is entering subject
       information by inserting the subject’s driver or identification card or entering information requested by the
       instrument display; Step Ten is placing a new mouthpiece in the breath tube, instructing the subject to deliver
       a breath sample, and removing the mouthpiece when prompted; Step Eleven is again having the subject
       deliver a breath sample; and Step Twelve is printing the instrument report and removing it from the printer.
       See 260 IAC 2-4-2.

       Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017           Page 9 of 10
       alcohol per 210 liters of breath at 4:19 on June 14, 2015. The record does not

       reveal that Officer Sims did not follow the required steps of the procedure or

       indicate anything that calls into question the reliability of the instrument or the

       instrument printout. There was sufficient evidence from which the trial court

       could have concluded that Officer Sims properly performed each step of the

       procedure. See Baran, 639 N.E.2d at 646 (concluding there was sufficient

       evidence from which the trial court could have concluded that the trooper

       properly performed each step of the procedure).


[14]   Based upon the record, we cannot say that the State did not establish that

       Officer Sims followed the applicable procedure in administering the breath test

       or that the trial court abused its discretion in admitting the breath test results.


                                                   Conclusion

[15]   For the foregoing reasons, we affirm Sanchez-Franco’s conviction for operating

       with a blood alcohol content of .08 as a Class C misdemeanor.


[16]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017   Page 10 of 10
