Edward Wolpert v. State of Indiana

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.
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[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.
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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
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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
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(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
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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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