Attorneys for Appellant Attorneys for Appellee
Robert W. Hammerle Steve Carter
Joseph M. Cleary Attorney General of Indiana
Indianapolis, IN
Justin F. Roebel
Deputy Attorney General
Indianapolis, IN
Attorneys for Amicus Curiae
Micah J. Cox
Indiana Criminal Justice Institute
Indianapolis, IN
In the
Indiana Supreme Court
_________________________________
No. 49S04-0407-CR-00301
Brenna Guy,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Interlocutory Appeal from the Marion Superior Court, No. 49F08-0108-CM-
173167
The Honorable Barbara Collins, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0206-
CR-00267
_________________________________
March 2, 2005
Shepard, Chief Justice.
The trial court denied Brenna Guy’s motion to suppress the results of
her breath test, administered to assess intoxication. This interlocutory
appeal presents the question whether a tongue stud inserted in her mouth
more than twenty minutes before the test renders the results of the test
inadmissible. We conclude that it does not, and affirm.
Facts and Procedural History
Indianapolis Police Officer Corey Shaffer observed Brenna Guy driving
on the wrong side of the street in downtown Indianapolis during the early
morning hours of August 24, 2001. He pulled Guy over and conducted three
field sobriety tests, all of which Guy failed. Shaffer decided to
administer a breath test. He observed Guy at least twenty minutes before
the test to make sure that she did not eat, drink, smoke, or place anything
in her mouth during that period. He inspected Guy’s mouth before the test
and noticed her tongue stud piercing but did not ask her to remove it. Guy
submitted to the test, which returned an alcohol concentration reading of
.11 grams of alcohol per 210 liters of breath. Shaffer arrested Guy, and
the State charged her with operating while intoxicated and operating with a
blood alcohol content between .08 and .15.
Guy moved to suppress the breath test results. Concluding that the
tongue stud was not a foreign substance under Ind. Admin. Code tit. 260, r.
1.1-4-8(1) (2004), the trial court denied her motion. The Court of Appeals
reversed, holding that under the regulation a person to be tested must not
have had any foreign substance in his or her mouth and that a tongue stud
is a foreign substance. Guy v. State, 805 N.E.2d 835, 840-42 (Ind. Ct.
App. 2004) vacated.
I. Results Admissible Only if Techniques Followed
Guy correctly observes that breath test results are admissible in an
operating while intoxicated case only if the techniques employed have been
approved by the director of the department of toxicology at the Indiana
University School of Medicine. Ind. Code Ann. § 9-30-6-5(a), (d) (West
2004). The department’s approved techniques for conducting the test in
question here (a B.A.C. Datamaster with keyboard) appear at Ind. Admin.
Code tit. 260, r. 1.1-4-8(1) (2004). The regulation specifies, “[t]he
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 the breath
sample is taken.” Id. (emphasis added).
Guy acknowledges that the tongue stud was not put in her mouth during
the twenty minute waiting period, but contends that a correct
interpretation of the regulation is that the person must not have had any
foreign substance in his or her mouth during the waiting period. (Br. in
Opposition to Pet. to Trans. at 3-5).
II. The Regulation Says “Put”
The primary rule in statutory construction is to determine and give
effect to the intent of the legislature. Hendrix v. State, 759 N.E.2d 1045
(Ind. 2001). The best evidence of legislative intent is the language of
the statute itself, and all words must be given their plain and ordinary
meaning unless otherwise indicated by statute. Chambliss v. State, 746
N.E.2d 73 (Ind. 2001). These principles apply equally to administrative
regulations. Indiana Port Comm'n v. Consolidated Grain and Barge Co., 701
N.E.2d 882, 890 (Ind. Ct. App. 1998).
The instant regulation, of course, uses the word “put” when referring
to foreign substances. The ordinary meaning of “put” is “to place or cause
to be placed in a specified position or relationship.” Webster’s Third New
International Dictionary 1849 (1993).
The legislative history of the rule suggests that the department of
toxicology chose the language purposefully. The proposed version of the
rule read, “The person to be tested . . . must not have any foreign
substance in his/her mouth or respiratory tract . . .” 6 Ind. Reg. 2440
(1983). In adopting the final regulation, the department inserted “put”
after “have.” 7 Ind. Reg. 340, 389 (1984). Guy’s interpretation of the
regulation (namely that no foreign substance can be in the mouth for twenty
minutes prior to the test) is contrary to the apparently conscious decision
of the department’s experts.
We come to this conclusion despite our decision in State v. Albright,
632 N.E.2d 725 (Ind. 1994). We noted in Albright that the regulation
requires a twenty-minute waiting period, and said that “the subject may not
have had any foreign substance in his mouth” during this time. Id. at 725.
The main issue in Albright was whether the police officer actually waited
the required twenty minutes. Id. at 725-26. There was no discussion about
the meaning of “put.” Albright’s precedential value on the point at issue
in this case is zero.
III. Guy’s Arguments Are Presented Without Science
The logical conclusion to draw from the department of toxicology’s use
of the word “put” is that any foreign substance placed in a person’s mouth
more than twenty minutes prior to a breath test poses no problem for the
reliability of the results. Guy argues that if “put” means “put,” the
regulation produces an absurdity in that it would allow admission of breath
test results despite a person putting anything in her mouth more than
twenty minutes prior to the test. (Appellant’s Br. in Opp. to Transfer at
3).[1]
While one could imagine a Brandeis brief on this topic, Guy neither
submitted to the trial court nor referred us to any scientific evidence in
support of her contention about absurd results.[2]
In fact, the science available in the public domain points in the
opposite direction. The concern over foreign substances in a person’s
mouth is the potential for the substances to absorb and retain alcohol in
the mouth, which could falsely elevate the breath alcohol concentration.
See Patrick M. Harding et al., The Effect of Dentures and Denture Adhesives
on Mouth Alcohol Retention, 37 J. Forensic Sci. 999, 999-1000 (1992). A
number of studies have shown, though, that a fifteen to twenty-five minute
waiting period during which nothing is placed in a person’s mouth allows
sufficient time for any mouth alcohol to dissipate. See, e.g., Id. at 999;
Barry K. Logan & Rodney G. Gullberg, Lack of Effect of Tongue Piercing on
an Evidential Breath Alcohol Test, 43 J. Forensic Sci. 239, 239-40 (1998);
Ronald L. Moore & J. Guillen, The Effect of Breath Freshener Strips on Two
Types of Breath Alcohol Testing Instruments, 49 J. Forensic Sci. 1, 1-3
(2004). These studies support the department of toxicology’s decision to
require that nothing be “put” in a person’s mouth within twenty minutes of
a breath test.
To be sure, the department and the State could be obliged to defend
the validity of the regulations should a defendant submit admissible
scientific studies or expert testimony to a trial court in support of a
motion to suppress. That has not occurred here.
IV. Conclusion
We affirm the trial court’s denial of the motion to suppress.
Dickson, Sullivan, and Rucker, JJ., concur.
Boehm, J., concurs in result, concluding that some substances could retain
alcohol even if “put” in the mouth more than twenty minutes before testing,
but studs, dentures, etc. are not “foreign” if ordinarily found in the
person’s mouth.
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[1] Our holding renders moot the question of whether a tongue stud is a
foreign substance. Suffice it to say that distinctions between tongue
studs and other substances that can be inserted into a person’s mouth, i.e.
dental devices, pennies, etc., based on removability or volume are
unavailing by themselves. The key consideration is what affect that
substance has on the accuracy of the test.
[2] Named after former U.S. Supreme Court Justice Louis D. Brandeis, a
“Brandeis brief” is one that uses social and economic studies to support
legal arguments. Black’s Law Dictionary 200 (8th ed. 2004). The term
became popular after Justice Brandeis, as an advocate, persuaded the U.S.
Supreme Court to uphold a statute capping the length of a woman’s workday
with a brief citing such studies in Muller v. Oregon, 208 U.S. 412 (1908).
Id.