concurring.
I concur but write separately to put forth some concerns or observations with respect to possible ramifications of our decision.
In this respect Judge Staton's dissent raises a very real question creating a quandary for enunciation of a workable requirement. Judge Staton validly observes that the factor of paramount importance is the effect, if any, of a substance, whether foreign or not, upon the accuracy and reliability of the breath test. In this context, whether the substance is readily removable or not is not critical.
Yet, in considering substances like dental fillings, orthodontic braces, implants, ete. which are not removable and certainly not readily removable, one may question whether those materials are any less likely to skew the results of a breath test than a metal tongue stud. Even so, I join with Judge Najam in his observation that the issue of dental appliances "is a question left for another day." Op. at 841.
Furthermore, placement of the burden upon the State to demonstrate the foundation for admitting the results of the test is sound. Not only as noted by Judge Na-jam, is it the State which is proffering the test result, it is more practical to place the burden upon the State. The State utilizes the testing device in its law enforcement function. Because its use is subject to the protocol set forth by the Indiana Department of Toxicology, it is not unreasonable, when the validity of a test result has been challenged, to place the onus upon the State to demonstrate, by testimony of its own experts or otherwise, that any substance in the mouth did not distort the test results.
Conversely, if it wished to do so our General Assembly could legislate that it is an affirmative defense available to a defendant to demonstrate the test result was likely to have been adversely and prejudi-cially affected by the substance. But of course even without an affirmative defense provision, a defendant need not sit quietly when breathalyzer test results are offered into evidence. Objections upon relevancy or other grounds are available. Furthermore, even if the results are admitted a defendant is free through cross-examination or his own witnesses to cast negative reflections upon the results. See Tyner v. State, 503 N.E.2d 444, 449 (Ind.Ct.App.1987), superseded on other grounds by statute as recognized by Allman v. State, 728 N.E.2d 230 (Ind.Ct.App.2000).
Subject to these comments, which if placed within a majority opinion would constitute pure dicta, I concur in the reversal of the denial of Guy's motion to suppress.