concurring in part and dissenting in part.
I fully concur in Issue One which addresses the ramification of the State’s appeal. I also fully concur in the majority’s determination of the Checklist aspect of Issue Two. However, I dissent on the majority’s determination of the Observation Period aspect of Issue Two. In my opinion, the trial court erred to the extent it may have granted Albright’s motion to suppress on the grounds that Jones did not follow Step One of the the approved procedure in administering the third Intoxilyzer 5000 test. This step of the approved procedure requires a 20 minute time period prior to the test, during which the subject may not have had any foreign substance in his mouth. In my opinion, the undisputed evidence adduced at the suppression hearing compels the conclusion that the 20 minute period was observed.
The undisputed evidence is that Officer Jones gave Albright an initial Intoxilyzer test following which he “saw some fragments of what appeared to [Jones] to be possible to be a hull off of some peanuts which [Albright] must have had hidden in his mouth.” Record at 54. Jones explained:
A. So if he had it in there he must have had them in there and been eating them and then concealed something in his mouth during the time that I took him from the scene to the jail during that twenty minutes and I did not know that he had anything in his mouth until after he’d taken the first test. So I finally determined that he did have something in his mouth and I told him that I could charge him with refusal and if he rinsed his mouth out and take another test I would wait at least twenty minutes then to take another test and he agreed, finally, to do that but before we did that I immediately give him another test so that I would have two tests showing what the results were with the article that he had in his mouth and then I waited at least, I think it was twenty-four or twenty-five minutes after having him rinse his mouth, still handcuffed and I checked his mouth again and went back and took the third test which he tested one percent lower than he had on the two prior tests.
Q. One percent of one-one-hundred of a percent?
A. One-hundredith [sic] of a precent [sic] lower than he did prior to that and I used the lower of the three tests and the one after he had rinsed his mouth and waited an additional twenty-four minutes to use to charge him with driving while intoxicated.
:}s sfc sK jjs
Q. The result ... I mean why was he tested the second time?
A. I tested him the second time immediately, I had never had this happen to me in ten years, the purpose for me testing him the second time, right then, was so that if they were to argue that something he had in his mouth had influenced the instrument or caused it to be a higher or lower reading, I would have two tests exactly the same, showing that the instrument, that there is nothing wrong with the instrument and also that whatever he had in his mouth had not effected [sic] the test and then I waited the additional amount of time after having cleaned his mouth out and the next test had now gone down any more than the normal blood alcohol would decrease in that amount of time. It was just to show the court if it needed to be so, that there was nothing wrong with the instrument.
Record at 55-57 (emphasis added).
In my opinion, the foregoing evidence is susceptible of only one conclusion — that *1002the third Intoxilyzer test was given more than twenty minutes after Jones discovered the substance in Albright’s mouth and after Albright had rinsed his mouth.
Furthermore, this evidence is uncontra-dicted. The majority opinion recites that an initial test was administered at 3:14 a.m., a second test was administered a few minutes later, and a third test was administered at 3:38 a.m. However, my perusal of the transcript of the evidence of the suppression hearing reveals that the only times that appear in the evidence are 2:48 and 2:58 a.m., the times which Jones testified he gave Albright the traffic ticket and observed him “to make sure that he didn’t have anything in his mouth,” respectively. The figures “3:14,” “3:18,” and “3:38” appear only once, during the cross-examination of Officer Jones, as follows:
Q. You did not [check the department time and compare it to the display time] on the first test, second test or the third test?
A. No.
Q. The one at 3:14, 3:18 or 3:38?
A. No, I compared it with my watch, not the department time.
Record at 84-85. Albright’s counsel’s question, to which Jones responded in the negative, is not evidence that the second Intoxilyzer test occurred at 3:18 a.m. nor is it evidence that the third test occurred at 3:38 a.m. Therefore, as I stated earlier, the uncontradicted evidence is that Jones waited for more than twenty minutes between the second and third Intoxilyzer tests. Consequently, the trial court erred to the extent it may have suppressed the Intoxilyzer test results based upon a foundational deficit.
Hence, I must consider the alternative basis upon which the trial court could have suppressed the test results — its determination that probable cause did not exist to arrest Albright and to administer the breath test. Probable cause did exist, in my opinion, and therefore, the trial court erred if it granted Albright’s motion to suppress on this basis. The evidence reveals that Jones had a reasonable suspicion to justify a brief investigatory stop of Al-bright which, in turn, revealed sufficient evidence to establish probable cause for Albright’s arrest. Platt v. State (1992), Ind., 589 N.E.2d 222, 225.
Jones observed Albright speeding down an alley, in excess of the speed limit, in the early morning hours and when Albright tried to stop at the intersection of the alley and a city street, he slid and nearly collided with Jones who had the right-of-way. Upon sighting Jones, in his police uniform, exiting a marked police car, Albright backed up hurriedly and almost struck some railroad ties before he stopped his car again. As Jones talked to Albright he observed that Albright had the odor of alcoholic beverages upon himself and in his car; that his eyes were watery and bloodshot; and that Albright was unsteady when he exited his car. Albright also failed several sobriety field tests and an alcosensor field test indicated Albright had a blood-alcohol content of .20%. Based upon this uncontra-dicted evidence the trial court erred if it determined that probable cause did not exist for Albright’s arrest; probable cause existed as a matter of law.
I vote to reverse the decision of the trial court suppressing the evidence surrounding the Intoxilyzer test results.