chemical breath test in Indiana

2015The 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 ap *1249 proved by the Department of Toxicology and was in proper working condition ,on the date of the chemical breath test if the approval was giv

2004The procedure for administering a chemical breath test, as promulgated by the Department of Toxicology, is described in relevant part as, "[the 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 *1060 must not smoke within twenty (20) minutes prior to the time a breath sample is taken." Fields, 807 N.E.2d at 109 ; Ind. Admin.

2017See Schmidt v. State , 816 N.E.2d 925 , 944 (Ind. Ct. App. 2004), reh'g denied, trans. denied ; Ackerman , 774 N.E.2d at 982 .

2010Subsequent decisions have held the Pir-tle requirement inapplicable in cases where the search consisted of field sobriety tests (Ackerman v. State, 774 N.E.2d 970, 981-82 (Ind.Ct.App.2002), trans. denied ), a chemical breath test (Schmidt v. State, 816 N.E.2d 925, 944 (Ind.Ct.App.2004), trams. denied ), or a chemical blood test (Datzek v. State, 838 N.E.2d 1149, 1159 (Ind.Ct. *894 App.2005), trans. denied ).

2018State v. Lloyd , 800 N.E.2d 196 , 199 (Ind. Ct. App. 2003).

2010State v. Lloyd, 800 N.E.2d 196, 199 (Ind.Ct.App.2003).

2004We also noted that the particular instruction "confuses and misleads the jury by permitting it to infer that the refusal is sufficient to establish all the elements of the offense of operating a vehicle while intoxicated, when, at best, it establishes only that he refused to take the test." Id. at 280 ; but see Luckhart v. State, 780 N.E.2d 1165, 1168 (Ind.Ct.App.2008) (holding that because there was no dispute that the defendant had been driving when he refused to take the test, and it is not likely that the jury was confused about the proper element of the offense to which the evidence perta

2004We also noted that the particular instruction "confuses and misleads the jury by permitting it to infer that the refusal is sufficient to establish all the elements of the offense of operating a vehicle while intoxicated, when, at best, it establishes only that he refused to take the test." Id. at 280 ; but see Luckhart v. State, 780 N.E.2d 1165, 1168 (Ind.Ct.App.2003) (holding that because there was no dispute that the defendant had been driving when he refused to take the test, and it is not likely that the jury was confused about the proper element of the offense to which the evidence perta

2018Further, " '[b]ecause the 5th [A]mendment right against self-incrimination does not apply to the obtaining of noncommunicative physical evidence,' such rights cannot be violated when the State acquires a chemical breath test from a suspect without first giving that suspect the assistance of counsel." Cohee v. State , 945 N.E.2d 748 , 752 (Ind. Ct. App. 2011) (quoting Davis v. State , 174 Ind.App. 433 , 367 N.E.2d 1163 , 1166-1167 (1977) ), trans. denied .

2018Further, " '[b]ecause the 5th [A]mendment right against self-incrimination does not apply to the obtaining of noncommunicative physical evidence,' such rights cannot be violated when the State acquires a chemical breath test from a suspect without first giving that suspect the assistance of counsel." Cohee v. State , 945 N.E.2d 748 , 752 (Ind. Ct. App. 2011) (quoting Davis v. State , 174 Ind.App. 433 , 367 N.E.2d 1163 , 1166-1167 (1977) ), trans. denied .

2017See Schmidt v. State , 816 N.E.2d 925 , 944 (Ind. Ct. App. 2004), reh'g denied, trans. denied ; Ackerman , 774 N.E.2d at 982 .

2010Subsequent decisions have held the Pir-tle requirement inapplicable in cases where the search consisted of field sobriety tests (Ackerman v. State, 774 N.E.2d 970, 981-82 (Ind.Ct.App.2002), trans. denied ), a chemical breath test (Schmidt v. State, 816 N.E.2d 925, 944 (Ind.Ct.App.2004), trams. denied ), or a chemical blood test (Datzek v. State, 838 N.E.2d 1149, 1159 (Ind.Ct. *894 App.2005), trans. denied ).

2023“Therefore, the State must set forth the proper procedure for administering a chemical breath test and show that the operator followed that procedure.” Id.

2018Ind. Code § 9-30-6-5 (d)(4) ; see also Short v. State , 962 N.E.2d 146 , 149 (Ind. Ct. App. 2012).

2018Ramirez v. State , 928 N.E.2d 214 (Ind. Ct. App. 2010), trans. denied . [20] Accordingly, for the results of a chemical breath test to be admissible, three foundational requirements must be satisfied: (1) the person who administered the test must be certified by the Department of Toxicology, (2) the equipment used in the test must have been inspected and approved by the Department of Toxicology, and (3) the operator must have followed the procedures approved by the Department of Toxicology.

2018Ramirez v. State , 928 N.E.2d 214 (Ind. Ct. App. 2010), trans. denied . [20] Accordingly, for the results of a chemical breath test to be admissible, three foundational requirements must be satisfied: (1) the person who administered the test must be certified by the Department of Toxicology, (2) the equipment used in the test must have been inspected and approved by the Department of Toxicology, and (3) the operator must have followed the procedures approved by the Department of Toxicology.

2023Connor v. State, 114 N.E.3d 901, 904 (Ind. Ct. App. 2018).

2018See also State v. McCaa , 963 N.E.2d 24 , 30 (Ind. Ct. App. 2012) ("In ... a case [where] the officer [has a reasonable suspicion that criminal activity may be afoot, he] may briefly detain [a suspect] to conduct a limited 'non-invasive' search such as a 'pat down' for weapons, a license and registration check, or field sobriety tests .") (emphasis added) (quoting Snyder v. State , 538 N.E.2d 961 , 963 (Ind. Ct. App. 1989), trans. denied ), trans. denied . [19] The trigger to require Miranda rights advisement is custodial interrogation.

2018See also State v. McCaa , 963 N.E.2d 24 , 30 (Ind. Ct. App. 2012) ("In ... a case [where] the officer [has a reasonable suspicion that criminal activity may be afoot, he] may briefly detain [a suspect] to conduct a limited 'non-invasive' search such as a 'pat down' for weapons, a license and registration check, or field sobriety tests .") (emphasis added) (quoting Snyder v. State , 538 N.E.2d 961 , 963 (Ind. Ct. App. 1989), trans. denied ), trans. denied . [19] The trigger to require Miranda rights advisement is custodial interrogation.

2017See Brown v. State , 653 N.E.2d 77 , 80 (Ind. 1995). [25] We have previously held that the purpose of the Pirtle doctrine would not be served by extending that doctrine to apply to field sobriety tests or chemical breath *1224 tests and that, therefore, a police officer is not required to advise a person in custody that he may consult with an attorney before administering field sobriety tests or a chemical breath test.

2017See, e.g., Upchurch v. State, 839 N.E.2d 1218, 1221-22 (Ind. Ct. App. 2005) (concluding Upchurch did not refuse test for alcoholic intoxication because officer did not follow approved method for administering test).

2016See, e.g., Reynolds v. State, 698 N.E.2d 390, 395 (Ind.Ct.App.1998) (finding a refusal to submit to a chemical breath test where defendant failed on four different occasions to give an adequate breath sample), trans, denied; Thacker v. State, 441 N.E.2d 708, 709 (Ind.Ct.App.1982) (noting that although defendant verbally consented to submit to a chemical test, his conduct; which included becoming “violent, kicking the officers and resisting their attempts to remove him from the patrol car,”- constituted a refusal); Jaremczuk v. State, 177 Ind.App. 628 , 380 N.E.2d 615, 618 (1978) (finding a ref

2016See, e.g., Reynolds v. State, 698 N.E.2d 390, 395 (Ind.Ct.App.1998) (finding a refusal to submit to a chemical breath test where defendant failed on four different occasions to give an adequate breath sample), trans, denied; Thacker v. State, 441 N.E.2d 708, 709 (Ind.Ct.App.1982) (noting that although defendant verbally consented to submit to a chemical test, his conduct; which included becoming “violent, kicking the officers and resisting their attempts to remove him from the patrol car,”- constituted a refusal); Jaremczuk v. State, 177 Ind.App. 628 , 380 N.E.2d 615, 618 (1978) (finding a ref

2016See, e.g., Reynolds v. State, 698 N.E.2d 390, 395 (Ind.Ct.App.1998) (finding a refusal to submit to a chemical breath test where defendant failed on four different occasions to give an adequate breath sample), trans, denied; Thacker v. State, 441 N.E.2d 708, 709 (Ind.Ct.App.1982) (noting that although defendant verbally consented to submit to a chemical test, his conduct; which included becoming “violent, kicking the officers and resisting their attempts to remove him from the patrol car,”- constituted a refusal); Jaremczuk v. State, 177 Ind.App. 628 , 380 N.E.2d 615, 618 (1978) (finding a ref

2016See, e.g., Reynolds v. State, 698 N.E.2d 390, 395 (Ind.Ct.App.1998) (finding a refusal to submit to a chemical breath test where defendant failed on four different occasions to give an adequate breath sample), trans, denied; Thacker v. State, 441 N.E.2d 708, 709 (Ind.Ct.App.1982) (noting that although defendant verbally consented to submit to a chemical test, his conduct; which included becoming “violent, kicking the officers and resisting their attempts to remove him from the patrol car,”- constituted a refusal); Jaremczuk v. State, 177 Ind.App. 628 , 380 N.E.2d 615, 618 (1978) (finding a ref

2015Abney v. State; 821 N.E.2d 375, 379 (Ind.2005). .[10] A trial .court’s denial of a petition for judicial review of a chemical breath test refusal is a final appealable judgment.

2015Abney v. State, 821 N.E.2d 375, 379 (Ind. 2005). [10] A trial court’s denial of a petition for judicial review of a chemical breath test refusal is a final appealable judgment.

2014See id. (concluding that evidence that a witness saw the defendant driving erratically and hit her mailbox and that the defendant’s blood alcohol content was high three hours later was sufficient evidence to allow the jury to deduce that the defendant was intoxicated when he struck the mailbox.); see also Stephens, 992 N.E.2d at 938 (holding that evidence that defendant had unsteady balance, watery, bloodshot eyes, the odor of alcohol on his breath, failed three field sobriety tests, along with a chemical breath test result of .10% was sufficient to support conviction for operating while intox

2014See id. (concluding that evidence that a witness saw the defendant driving erratically and hit her mailbox and that the defendant’s blood alcohol content was high three hours later was sufficient evidence to allow the jury to deduce that the defendant was intoxicated when he struck the mailbox.); see also Stephens, 992 N.E.2d at 938 (holding that evidence that defendant had unsteady balance, watery, bloodshot eyes, the odor of alcohol on his breath, failed three field sobriety tests, along with a chemical breath test result of .10% was sufficient to support conviction for operating while intox

2013The Indiana Supreme Court has likewise emphasized that a leading question is one “which, embodying a material fact, admits of a conclusive answer in the form of a simple ‘yes’ or ‘no.’” Doerner v. State, 500 N.E.2d 1178, 1182 (Ind. 1986).

2013The State asked Trooper Madison a few more yes/no questions related to administering the chemical breath test to Jones. 24 As noted above, the policy behind Ind. Evidence Rule 611(c) is to prevent an attorney from substituting his or her own language “for the thoughts of the witness as to material facts in dispute.” Williams, 733 N.E.2d at 922 (emphasis added).

2013As noted above, the policy behind Ind. Evidence Rule 611(c) is to prevent an attorney from substituting his or her own language “for the thoughts of the witness as to material facts in dispute.” Williams, 733 N.E.2d at 922 (emphasis added).

2013Nivens v. State, 832 N.E.2d 1134, 1138 (Ind. Ct. App. 2005).