FILED
Nov 29 2018, 5:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Marc Lopez Curtis T. Hill, Jr.
Matthew Kroes Attorney General of Indiana
The Marc Lopez Law Firm
Indianapolis, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Harold Connor, November 29, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-442
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven J. Rubick,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G19-1703-CM-10257
Najam, Judge.
Statement of the Case
[1] Brian Harold Connor appeals his conviction for operating a vehicle with an
alcohol concentration equivalent to at least 0.08 gram of alcohol but less than
0.15 gram of alcohol per 210 liters of breath, as a Class C misdemeanor,
Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018 Page 1 of 12
following a bench trial. Connor raises two issues for our review, one of which
we find dispositive, namely, whether the trial court abused its discretion when it
admitted into evidence the results of a chemical breath test.
[2] We reverse.1
Facts and Procedural History
[3] On March 17, 2017, the Indianapolis Metropolitan Police Department
(“IMPD”) conducted a sobriety checkpoint near the intersection of Delaware
Street and Michigan Street. At approximately 7:25 p.m., Connor arrived at the
sobriety checkpoint, and IMPD Captain Don Weilhamer stopped Connor.
Captain Weilhamer noticed that there “was an odor of alcoholic beverage
coming from” Connor. Tr. Vol. II at 43. He further noticed that Connor’s eyes
were “bloodshot and glassy. He was also reacting rather slowly when [Captain
Weilhamer] was asking him for his driver’s license and registration.” Id.
Captain Weilhamer then asked Connor how much he had had to drink, and
Connor responded that he had had two beers.
[4] At that point, Captain Weilhamer asked Connor to step out of the car. Captain
Weilhamer then administered a series of field sobriety tests to Connor. Connor
passed the test that required him to stand on one leg, but he failed the
horizontal gaze nystagmus test and the walk and turn test. Captain Weilhamer
1
We held oral argument in this case on October 26, 2018, at Washington High School in Washington,
Indiana. We thank counsel for their excellent advocacy and extend our appreciation to the administration,
faculty, staff, and students of Washington High School for their hospitality.
Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018 Page 2 of 12
then read Connor the implied consent advisement, and Connor agreed to take a
chemical breath test.
[5] Captain Weilhamer escorted Connor to a local police station and administered
a breath test using the Intox EC/IR II machine. When Connor blew into the
mouthpiece for the test, he blew so hard that the instrument registered a
“maximum flow exceeded” message. Id. at 51. Captain Weilhamer then
waited approximately three minutes, replaced the mouthpiece, and
administered another test using the same machine. The results of the second
breath test showed that Connor had an alcohol concentration equivalent to
0.097 gram of alcohol per 210 liters of breath. After Captain Weilhamer
received the results of the test, he placed Connor under arrest and searched his
pockets. During that search, Captain Weilhamer found a small flask inside
Connor’s pocket that “smelled of alcohol.” Id. at 64.
[6] The State charged Connor with one count of operating a vehicle while
intoxicated, as a Class C misdemeanor; one count of operating a vehicle with
an alcohol concentration equivalent to at least 0.08 gram of alcohol but less
than 0.15 gram of alcohol per 210 liters of breath, as a Class C misdemeanor;
and one count of possessing an open alcoholic container during the operation of
a motor vehicle, as a Class C infraction.
[7] The trial court held a bench trial on November 13, 2017. During the trial, the
State presented as evidence the testimony of IMPD Lieutenant Richard Kivett,
who was the sobriety checkpoint commander on March 17. Lieutenant Kivett
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testified about the details of the sobriety checkpoint. At the end of Lieutenant
Kivett’s testimony, Connor moved to suppress evidence that officers had
obtained at the checkpoint on the ground that the checkpoint was
unconstitutional. The trial court bifurcated the trial and allowed the parties to
submit briefs on the constitutionality of the checkpoint. Thereafter, the trial
court denied Connor’s motion to suppress.
[8] The trial court continued the trial on February 5, 2018. During the second
phase of the trial, the State presented the testimony of Captain Weilhamer as
evidence. Captain Weilhamer testified about his observations of Connor at the
sobriety checkpoint and about the results of the field sobriety tests. He also
testified that, based on his observations of Connor and the failed field sobriety
tests, he had decided to administer a chemical breath test to Connor. Captain
Weilhamer then testified about the procedure he had followed when he
administered the breath test. Specifically, he testified that, when he had
attempted to perform the test the first time, “Connor blew so hard that the
instrument registered maximum flow exceeded.” Id. at 51. Captain Weilhamer
testified that, after he had received the error message, he waited approximately
three minutes and performed another test using the same machine.
[9] During the State’s direct examination of Captain Weilhamer, Connor moved to
suppress the results of the chemical breath test. In his motion, Connor asserted
that the results of that test were inadmissible because the procedures Captain
Weilhamer had followed when he administered the test had “not been
approved in accordance with the rules” adopted by the Department of
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Toxicology. Id. at 54. The trial court denied Connor’s motion. The State then
moved to admit the results of the chemical breath test as evidence, which the
trial court admitted over Connor’s objection.
[10] At the conclusion of the bench trial, the court found Connor guilty of operating
a motor vehicle with an alcohol concentration equivalent to at least 0.08 gram
of alcohol but less than .15 gram of alcohol per 210 liters of breath, as a Class C
misdemeanor, but not guilty of the remaining two counts. The trial court
entered judgment of conviction and sentenced Connor accordingly. This
appeal ensued.
Discussion and Decision
[11] Connor asserts that the trial court abused its discretion when it admitted into
evidence the results of the chemical breath test. Connor initially challenged the
admission of this evidence through a motion to suppress but now appeals
following a completed trial. Thus, the issue is appropriately framed as whether
the trial court abused its discretion by admitting the evidence at trial. 2 Lanham
v. State, 937 N.E.2d 419, 421-22 (Ind. Ct. App. 2010).
[12] “‘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.’” Wolpert v. State,
2
Connor asserts that the trial court erred when it denied his motion to suppress. However, because Connor
appeals after a completed trial, “the question of whether the trial court erred in denying his motion to
suppress is no longer viable.” Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).
Court of Appeals of Indiana | Opinion 18A-CR-442 | November 29, 2018 Page 5 of 12
47 N.E.3d 1246, 1247 (Ind. Ct. App. 2015) (quoting Fields v. State, 807 N.E.2d
106, 109 (Ind. Ct. App. 2004)). “An abuse of discretion occurs when the trial
court’s decision is contrary to the logic and effects of the facts and
circumstances before it, or when the trial court errs on a matter of law.” Wilson
v. State, 973 N.E.2d 1211, 1213-14 (Ind. Ct. App. 2012). On appeal, Connor
specifically contends that the trial court abused its discretion when it admitted
the results of the chemical breath test as evidence because Captain Weilhamer
did not administer the test “in accordance with the rules” set out by the
Department of Toxicology. Appellant’s Br. at 15.
[13] Indiana Code Section 9-30-6-5(a) (2018) provides that “[t]he director of the
state department of toxicology shall adopt rules under IC 4-22-2 concerning . . .
[t]he certification of the proper technique for administering a breath test.” The
results of a chemical breath test “are not admissible” if the techniques used in
the test “have not been approved in accordance with the rules adopted” by the
Department of Toxicology. Ind. Code § 9-30-6-5(d)(4); see also Short v. State,
962 N.E.2d 146, 149 (Ind. Ct. App. 2012). “Because the State is the party
offering the results of the breath test, it has the burden of establishing the
foundation for admitting the results.” Short, 962 N.E.2d at 149. “Therefore,
the State must set forth the proper procedure for administering a chemical
breath test and show that the operator followed that procedure.” Id.
[14] Pursuant to Indiana Code Section 9-30-6-5, the Department of Toxicology has
adopted rules concerning the proper technique a test operator must follow when
administering a breath test using an Intox EC/IR II breath test instrument,
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which is the instrument Captain Weilhamer used to administer the breath test
to Connor. In particular, those rules prescribe twelve steps a test operator is
required to follow in order to properly administer a breath test. See 260 Ind.
Admin. Code 2-4-2(a) (2014),
http://www.in.gov/legislative/iac/iac_title?iact=260. Those rules also
anticipate that, following those initial twelve steps, a test operator may receive
one of six specified error messages, namely: “Please blow”; “Interfering
Substance”; “RFI Detected”; “Mouth Alcohol”; “Insufficient Sample”; or
“Time Out.”3 260 I.A.C. 2-4-2(b). In the event a test operator receives one of
those error messages, the rules provide for additional procedures the test
operator must follow in order to re-administer the breath test. See id.
[15] Here, when Captain Weilhamer initially administered the breath test to
Connor, the machine displayed an error message that read “maximum flow
exceeded.” Tr. Vol. II at 51. There is no dispute that the Department of
Toxicology’s rules neither identify that error message as a possible initial breath
test result nor prescribe the technique that a test operator must follow when the
instrument displays that message. As such, Connor contends that that error
message was an “unanticipated problem” for which there is no direction in the
administrative code and, therefore, Captain Weilhamer’s resolution “has
3
In his brief on appeal, Connor states that the administrative rules address the following error messages:
please blow, subject sample interferent, subject sample invalid, radio interference, and subject sample
incomplete. But those are the potential error messages that can appear on the report when the test operator
uses the BAC DataMaster breath test instrument. See 260 I.A.C. 2-4-1.
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neither been approved . . . by the Department of Toxicology nor codified in the
Indiana Administrative Code.” Appellant’s Br. at 16. In essence, Connor
contends that the breath test results were inadmissible because the Department
of Toxicology has not designated the proper procedure to be followed when
administering a breath test after having received a “maximum flow exceeded”
error message, a message that is not addressed in the administrative code. We
must agree.
[16] The “[i]ntroduction of a breath test lends the aura of scientific certainty to a
prosecution for driving while intoxicated, often sealing the fate of the offender
in the mind of the trier of fact.” Bowman v. State, 564 N.E.2d 309, 311 (Ind. Ct.
App. 1990), summarily aff’d in relevant part, 577 N.E.2d 569, 571 (Ind. 1991).
“Thus, the detailed procedures to be followed,” as adopted by the Department
of Toxicology, “reflect a determination that the test should be as accurate and
free from uncertainty as possible.” Id.
[17] But neither our trial courts nor this court have the requisite knowledge to
determine whether the technique that is to be followed after an error message is
the correct technique when that error message has not been addressed in the
administrative code. Rather, the Indiana General Assembly has tasked the
Department of Toxicology with promulgating rules concerning the proper
technique for administering a breath test because the Department possesses the
specialized knowledge of how the breath test machines work. Because courts
lack the necessary expertise that the Department of Toxicology possesses, our
Supreme Court has made clear that “breath test results may be admitted only
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when the test was conducted in ‘strict compliance’ with” the regulations
adopted by the Department of Toxicology. State v. Cioch, 908 N.E.2d 1154,
1156 (Ind. 2009).
[18] The State acknowledges that “[t]he Administrative Code is silent as to what
officers must do when an error resulting from too much breath being blown
appears.” Appellee’s Br. at 17-18. Nonetheless, the State contends that
Captain Weilhamer “correctly presumed that a second test was required and
administered a second test” because, “[f]or every one of the listed error
messages that are outlined in the regulation, the next step is to ‘perform an
additional breath test[.]’” Id. (quoting 260 I.A.C. 2-4-2).4
[19] While the State is correct that a test operator must perform an additional breath
test if the operator receives any of the listed six error messages, the actual steps
that a test operator must take when administering the second test vary based on
the specific message received. For instance, if “Please blow” appears, the test
operator is to perform an additional breath test, beginning with step eleven. 260
I.A.C. 2-4-2(b)(1). If after the second test, “No. 0.020 Agreement” is displayed,
4
The State relies on Hurley v. State, 75 N.E.3d 1074, 1080 (Ind. 2017), to support its assertion that “[o]ur
Supreme Court has interpreted [260 Indiana Administrative Code 2-4-2] to ‘presumptively require[]’ a second
test to be administered if the first attempt at administration should fail, provided that the suspect is not
refusing the test.” Appellee’s Br. at 17. But the State’s reliance on Hurley is misplaced. Hurley specifically
states that 260 Indiana Administrative Code 2-4-2 “requires an officer to administer a second test after the
first test returns an insufficient sample unless the subject clearly manifests an unwillingness to take the test.”
Hurley, 75 N.E.3d at 1077 (emphasis added). Thus, our Supreme Court in that case did not interpret the
entire regulation as requiring an officer to administer a second test if the first test should fail for any reason.
Rather, that court’s holding was limited to the procedure an officer should follow if the instrument displays
one particular error message, which is not at issue here.
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the operator must perform an additional breath test beginning with step two and
proceeding through step twelve. Id. Similarly, if “RFI Detected”; “Insufficient
Sample”; or “Time Out” is displayed, the operator should administer an
additional breath test beginning at step two and proceeding through step twelve.
See 260 I.A.C. 2-4-2(b)(3) and (5).
[20] However, for both the “Interfering Substance” and “Mouth Alcohol” messages,
the operator is to administer a second breath test beginning at step one. See 260
I.A.C. 2-4-2(b)(2) and (4). For those errors that require the test operator to
begin at step one, the test operator must wait fifteen minutes before
administering the second test. See 260 I.A.C. 2-4-2(a). But for those errors that
require the test operator to begin at step two, there is no set amount of time that
a test operator must wait before administering the second test. See id.
[21] In other words, contrary to the State’s assertion, there is no single protocol for a
test operator to follow when administering an additional breath test after having
received an error message. Rather, there is a significant difference in the
procedure to be followed depending on the error message. Without direction
from the Department of Toxicology on how to properly proceed following the
“maximum flow exceeded” error message, we cannot say that Captain
Weilhamer’s decision to simply wait three minutes before administering a
second test using the same machine was correct. We cannot determine whether
Captain Weilhamer should have re-administered the test beginning at step one,
which requires a fifteen-minute wait before the second test, or whether he
should have re-administered the test beginning at step two, which does not
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require the test operator to wait before administering the second test, or whether
the Department of Toxicology would prescribe an entirely different protocol for
the second test.5
[22] In sum, the evidence does not show that the technique Captain Weilhamer used
to administer the second breath test to Connor was an authorized technique
that produced an accurate test result. When Captain Weilhamer received an
error message for which there was no corresponding protocol in the
administrative code, he improvised. Because the technique he used had not
been approved in accordance with a rule promulgated by the Department of
Toxicology, as a matter of law the results of the breath test were not admissible.
I.C. § 9-30-6-5(d)(4). The trial court therefore abused its discretion when it
admitted that evidence. And we cannot say that the error in the admission of
the breath test results was harmless, as the State did not present any other
evidence to establish that Connor had operated a motor vehicle with an alcohol
concentration equivalent to more than 0.08 gram per 210 liters of breath.6
5
Until the Department of Toxicology provides a technique for a test operator to follow when the “maximum
flow exceeded” error appears on the machine, the test operator can either obtain an alternate chemical test,
such as a blood test, or perform a breath test on another breath test machine. Indeed, for each of the listed
error messages, a test operator has the option of obtaining an alternate chemical test for ethanol or
performing an additional breath test on another instrument instead of performing a second test on the
machine in question. See, e.g., 260 I.A.C. 2-4-2(b)(1)(B) and (C).
6
The State did present as evidence Captain Weilhamer’s testimony that Connor smelled of alcohol, that he
had bloodshot and glassy eyes, and that he had failed two field sobriety tests. However, that evidence does
not support his conviction for operating a motor vehicle with a specific alcohol concentration between 0.08
and 0.15 gram of alcohol per 210 liters of breath.
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[23] Thus, we hold that the trial court erred when it admitted the results of the
breath test as evidence because Captain Weilhamer had administered the test
using a procedure that had not been approved by the Department of
Toxicology. And we hold that the admission of the breath test was not
harmless error, as it was the only evidence that the State presented to support
his conviction. We therefore reverse Connor’s conviction for operating a motor
vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol
but less than 0.15 gram of alcohol per 210 liters of the person’s breath.7
[24] Reversed.
Bailey, J., and May, J., concur.
7
Connor also contends that the trial court erred under Article 1, Section 11 of the Indiana Constitution
when it admitted evidence that officers had obtained pursuant to a sobriety checkpoint that he alleges was
unconstitutional as conducted. But, as discussed above, the only evidence the State presented to support
Connor’s conviction was the result of the breath test. Because we hold that the only evidence to support his
conviction was inadmissible, we need not address Connor’s contention that the sobriety checkpoint was
unconstitutional.
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