Guy v. State , 2004 Ind. App. LEXIS 568 ( 2004 )

OPINION

NAJAM, Judge.

Brenna Guy brings this interlocutory appeal following the trial court's denial of her motion to suppress the results of her breath test under Indiana Code Section 9-30-6-5 and Indiana Administrative Code Title 260, Rule 1.1-4-8 ("260 IAC 1.1-4-8"). Guy presents a single issue for review, namely, whether the trial court erred when it denied her motion to suppress.

We reverse.

FACTS AND PROCEDURAL HISTORY

On August 24, 2001, Indianapolis Police Officer Corey Shaffer pulled Guy's car over and administered three field sobriety tests, all of which Guy failed. Guy then agreed to submit to a chemical breath test, which Officer Shaffer administered. Prior to administering the test, Officer Shaffer inspected Guy's mouth and observed "a small stainless steel tongue ring." The officer clarified that it was "not really a ring" but "more like a bar with a ball on each end," in other words, a metal stud.¹ Officer Shaffer then waited more than twenty minutes before he administered the breath test, but he did not ask Guy to remove the metal stud. Guy's test results were 0.11%, and the officer placed her under arrest for Operating While Intoxicated. When Guy was booked into jail, she removed her metal stud upon request. Jail personnel returned the metal stud to her upon her release.

Guy moved to suppress the results of her breath test. Following a hearing, the trial court denied her motion. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

We review the denial of a motion to suppress in a manner similar to other sufficiency matters. Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App.2000), trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Id. However, unlike the typical sufficiency of the evidence case where only the evidence favorable to the judgment is considered, we must also consider the uncontested evidence favorable to the defendant. Id.

Interpretation of 260 IAC 1.1-4-8

"[Tlo admit breathalyzer test results, the test operator, test equipment, chemicals used in the test, if any, and the techniques used in the test must have been approved by the [D]epartment of [T]oxicology." State v. Johanson, 695 N.E.2d 965, 966-67 (Ind.Ct.App.1998) (citing Ind.Code § 9-30-6-5). As the party offering the results of a breath test, the State has the burden of establishing the foundation for admitting the test. Id. at 967. Therefore, the State must establish the proper procedure and demonstrate that the operator followed that procedure. Id. The proper procedure is established, in part, by showing that the officer who administered the test complied with 260 IAC 1.1-4-8, which provides in relevant part:

The following is the approved method to conduct a B.A.C. Datamaster with keyboard test for alcohol intoxication:

(1) The person to be tested must have had nothing to eat or drink, must not have put any foreign substance in his or her mouth or respiratory tract, and must not smoke within twenty (20) minutes prior to the time a breath sample is taken.

(Emphases added).

Guy asserts that the trial court erred when it denied her motion to suppress because the metal stud is a "foreign substance" under 260 IAC 1.1-4-8(1). The State responds that the trial court's denial of her motion was proper because (1) Guy put the metal stud in her mouth more than twenty minutes prior to the test, and (2) a metal stud is not a "foreign substance" under the rule. The parties arguments require that we examine the meaning of 260 IAC 1.1-4-8(1), which our courts have had few opportunities to do.

A. Meaning of "Put"

Because it would render the "foreign substance" dispute moot, we first address the State's contention that the test complied with 260 IAC 1.1-4-8(1) because Guy put the stud in her tongue more than twenty minutes prior to the time the test was administered. | In particular, the State asserts that the plain language of the rule states that a test subject may not place a foreign substance in her mouth within twenty minutes of the test and does not address substances already present in that person's mouth. We cannot agree.

As the State acknowledges, in State v. Albright, 632 N.E.2d 725, 725 (Ind.1994), our supreme court, in addressing a former version of the rule, stated:

260 IAC 1.1-4-8(1) requires a twenty[-Iminute waiting period prior to the administration of the Intoxilyzer test, during which time the subject may not have had any foreign substance in his mouth. This requirement relates to the reliability of the results, because foreign substances may alter the blood-aleohol content reading. Therefore, the State must prove that the test was administered in the proper manner.

(Citations omitted, emphasis added). In Albright, an officer, after having administered an initial breath test, determined that the test subject had peanut fragments in his mouth. Id. The officer then immediately gave a second test, and after waiting an additional twenty-four or twenty-five minutes, he conducted a third test. Id. at 725-26. The defendant argued that the State failed to prove that the officer had complied with the proper testing procedures because the officer did not comply with the twenty-minute waiting period, and our supreme court disagreed. Id. at 726. But critical to our decision today is the court's statement in Albright that during the twenty-minute waiting period, the subject must not have kad any foreign substance in his or her mouth.

The State asserts that the Albright court's interpretation of 260 IAC 1.1-4-8(1) is dicta. But we reject that contention for two reasons. First, the opinion as a whole suggests that, had the officer in that case failed to administer additional tests after having found the peanut fragments in the subject's mouth, the State could not have met its burden of proving that the officer complied with proper test procedures. Moreover, regardless of when the subject had put the peanuts in his mouth, the fact that the peanut fragments were inside his mouth while the test was administered was significant and caused the officer to administer additional tests. The State's attempt to dismiss our supreme court's opinion in Albright as binding authority must fail. Following Albright, we conclude that the word "put" as it appears in 260 IAC 1.1-4-8(1) means "present" and that a person to be tested must not have had any foreign substance present in his or her mouth within twenty minutes prior to the time a breath sample is taken.²

But another panel of this court recently agreed, at least in part, with the State's interpretation of 260 IAC 1.1-4-8(1). Specifically, in State v. Molnar, 803 N.E.2d 261, 262 (Ind.Ct.App.2004), the defendant sought to suppress the results of his breath test because he claimed that he had residue from chewing tobaceo in his mouth when he took the test. While it was undisputed that the defendant had spit out chewing tobacco prior to submitting to the test, the officer who administered the test testified that when he looked inside the defendant's mouth with a flashlight, he did not observe any tobacco residue. But the defendant asserted that, based on his experience with chewing tobaceo, he had to have had residue in his mouth during the test. To support that assertion, during the suppression hearing he removed a elump of tobacco from his mouth, rinsed his mouth twice with water, and spit twice. Because there was residue in his spit after rinsing his mouth, the defendant asserted, and the trial court agreed, that there must have been tobacco residue in his mouth when he submitted to the breath test. Id. at 262-638. The trial court granted the defendant's motion to suppress.

In reversing the trial court, the Molnar court interpreted 260 IAC 1.1-4-8(1) as follows: "By using the word 'put' in the regulation, the Department of Toxicology prohibited the placement of a foreign substance in the subject's mouth twenty minutes prior to the test." Id. at 266. We then stated in relevant part:

There is no dispute here that Molnar did not place any foreign substance in his mouth within twenty minutes of the test. The regulation makes no provision for residue remaining from matter removed from the subject's mouth before the twenty-minute period begins and does not invalidate the breath test results due to residue remaining in the subject's mouth.

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As the trial court found and both parties agree, the obvious reason for the twenty-minute rule is to prevent a foreign substance from affecting the breath test results. The Department of Toxicology determined that twenty minutes is a long enough period to sufficiently mitigate the contaminating effect of anything contained in a subject's mouth once the matter is removed, including any residue remaining in the mouth. Thus, we must rely on the expertise of the Department and trust that it decided twenty minutes is a sufficient waiting period to protect the integrity and aceu-racy of the test results.

Id. (emphases added, footnotes omitted).

We respectfully disagree with Molnar's interpretation of 260 IAC 1.1-4-8(1) to the extent that the panel determined that, as long as a subject has placed a foreign substance in his mouth more than twenty minutes before a breath test, the test complies with the rule. Under that literal interpretation, a subject could place a penny, food, or any other substance in his mouth twenty-one minutes before taking a test, leave the substance in his mouth during the test, and the results would be valid under the rule. That interpretation would yield an absurd result. See Murray v. State, 798 N.E.2d 895, 902 (Ind.Ct.App. 2003) (addressing rule of construction that we presume legislature intended language in statute to be applied logically and not to bring about an unjust or absurd result). Further, Molnar does not address our supreme court's decision in Albright, which is binding authority on the matter.

Our review of Molnar in its entirety suggests that the decision has limited applicability. Specifically, the panel in that case noted, "We do agree that the rule clearly contemplates that a substance 'put" in the mouth will be removed more than twenty minutes before the test is administered; what we do not conclude is that the rule requires all possible residue from the substance to be removed as well." Mol-mar, 803 N.E.2d at 266 n. 1 (emphasis added). Accordingly, the panel likely would have reached a different outcome if, as with Guy's metal stud, the defendant had not removed the chewing tobaceo from his mouth before he submitted to the breath test. We conclude that the holding in Molnar is limited to cases where a defendant has a foreign substance in his mouth and removes that substance prior to the test.

Unlike in Molnar, the following facts in this case are undisputed: (1) when Officer Shaffer inspected Guy's mouth before he administered the test, he observed the metal tongue stud; (2) Officer Shaffer did not ask Guy to remove the metal stud; and (8) Guy had the metal stud in her mouth during the breath test. Thus, Molnar is clearly distinguishable and does not determine the outcome here. Rather, our supreme court's interpretation of 260 IAC 1.1-4-8(1) in Albright controls and, following that case, we conclude that a person to be tested must not have had any foreign substance in his mouth within twenty minutes prior to the time a breath sample is taken.

B. "Foreign Substance"

Next, the parties dispute whether a metal stud is a "foreign substance" under 260 IAC 1.1-4-8(1). As we stated in JKB, Sr. v. Armour Phorm. Co., 660 N.E.2d 602, 605 (Ind.Ct.App.1996), trans. demied:

When interpreting a statute, the foremost objective is to determine and effect legislative intent. Statutes must be construed to give effect to legislative intent, and courts must give deference to such intent whenever possible. Thus, courts must consider the goals of the statute and the reasons and policy underlying the statute's enactment. Courts are to examine and interpret the statute as a whole, giving words their common and ordinary meaning, and not overemphasize a strict, literal, or selective reading of individual words. Words and phrases are taken in their plain, ordinary, and usual meaning unless a different purpose is manifested by the statute.

(Citation omitted); see Indiana Port Comm'n v. Consolidated Grain and Barge Co., 701 N.E.2d 882, 890 (Ind.Ct.App.1998) (applying rules of statutory construction to interpret administrative regulations), trams. denied.

Our supreme court addressed the intended purpose of 260 IAC 1.1-4-8(1), and specifically the "foreign substance" provision, in Albright when it stated that that "requirement relates to the reliability of the results, because foreign substances may alter the blood-alcohol content reading." 632 N.E.2d at 725 (citing generally Tyner v. State, 508 NBE.2d 444 (Ind.Ct. App.1987)). With that intended purpose in mind, the rule does not define "foreign substance," nor does it enumerate specific substances that may affect the breath test. Rather, it precludes any foreign substance in the test subject's mouth within twenty minutes prior to the time a breath sample is taken.

Guy directs us to Black's Law Dictionary, which defines "foreign substance" as "[a] substance found in a body, organism, or thing where it is not supposed to be found...." Bmack's Law Dictionary 660 (7th ed.1999). Similarly, the word "foreign" is defined, in part, as "[slituated in an abnormal or improper place in the body and typically introduced from outside: a foreign object in the eye." Tur Amgrican HErItace Dictionary or tus EncusH Lan-auace 711 (8d ed.1996) (italics in original). "Abnormal" means "[njot typical, usual, or regular." Id. at 4. A metal stud inserted through a person's tongue falls within the plain meaning of "foreign" because it is situated in an atypical, unusual, or irregular place in the body and is introduced from outside.

Still, the State asserts that if we were to conclude that a metal stud is a foreign substance, then a variety of dental appliances would necessarily be foreign substances under the rule as well. The State also points out that other states have determined that a test subject is not required to remove dentures or false teeth before a breath test. See Farr v. State, 914 S.W.2d 38, 40 (Mo.Ct.App.1996); People v. Witt, 258 Ill.App.3d 124, 196 Ill.Dec. 459, 630 N.E.2d 156, 158 (1994). But based on the dictionary definitions above, we cannot agree with the State's contention that dental appliances would necessarily constitute "foreign substances" under the rule. Although introduced from outside, dental appliances are not situated in an abnormal, unusual or irregular place in the body, and such appliances are prevalent throughout the general population. Also, Guy's motion to suppress. does not concern dental appliances, and that is a question left for another day.³

Again, the burden is on the State to prove that the officer who administered the breath test followed proper procedures. Baran v. State, 639 N.E.2d 642, 646 (Ind.1994); Albright, 632 N.E.2d at 725. Indiana law requires strict compliance with the procedures adopted by the Department of Toxicology. Crouch v. State, 638 N.E.2d 861, 864 (Ind.Ct.App.1994). Failure to comply with rules and procedures promulgated by the Department leads to the test results being inadmissible. See id.

Here, Guy had no burden to show that the metal stud affected her test results. Rather, to succeed on her motion, she need only prove that the metal stud is a "foreign substance" under the rule. She has met that burden. The language of 260 IAC 1.1-4-8(1) broadly states that the person to be tested must not have put any foreign substance in her mouth within twenty minutes prior to the time a breath sample is taken. Because Guy had a foreign substance in her mouth not only within twenty minutes of the test, but also during the test, the State cannot show that proper procedures were followed in this case.

Based on the undisputed facts and the plain meaning of the term "foreign," we conclude that Guy's metal tongue stud, which the officer saw before he administered the breath test and which was easily removable, falls within the plain meaning of the phrase "any foreign substance" under 260 IAC 1.1-4-8(1). Therefore, we hold that the trial court erred when it denied Guy's motion to suppress.

Reversed.

SULLIVAN, J., concurs with separate opinion. STATON, Sr.J., dissents with separate opinion.

1 . Guy explained that the metal stud is made of surgical stainless steel and consists of a ball on top of her tongue and a fastener underneath.

2 . The State also directs us to Thurman v. State, 661 N.E.2d 900 (Ind.Ct.App.1996), in which this court determined that 260 IAC 1.1-4-8 contains no requirement that an officer, prior to administering a breath test, conduct a visual inspection of the subject's mouth to be in compliance with the administrative rule. But Thurman has no bearing on Guy's case, where it is undisputed that Officer Shaffer observed the metal stud in Guy's mouth before he administered the test.

3 . It is unlikely that the State Department of Toxicology contemplated whether metal tongue studs, or any type of oral piercing for that matter, constitute "foreign substances" under the rule. But certainly dental appliances were contemplated. Perhaps the most effective way to deal with this issue would be for the Department of Toxicology to clarify the rule.