Certified Breath Tests and the Indiana Administrative Code
If you’ve read our blog on Indiana’s statutory presumption, you’re already aware of the concept of a certified chemical test. Portable breath test results are inadmissible at a DUI / OVWI trial, so if the State wants to use science to convict you, it must obtain a certified chemical test.
This blog will cover certified breath tests, the administration of which is covered in Title 260 of the Indiana Administrative Code.
This particular part of the code is a deliberately-worded and comprehensive set of instructions. In the context of Indiana DUI / OVWI law, it’s the alpha and the omega of certified breath test administration.
Where Does the Procedure Come From?
State agencies—from the Election Board to the Lottery Commission to the Department of Natural Resources—all operate according to rules. These rules are collected in one place, and that place is known as the Indiana Administrative Code. Each separate agency is covered under a distinct title, and Title 260 pertains to the State Department of Toxicology. The content makes for pretty dry reading, but it’s important nonetheless.
The authority for the director of the State Department of Toxicology to adopt rules concerning the administration and certification of a breath test comes directly from the Indiana Criminal Code, which refers directly to Title 260 of the Administrative Code. Title 260, in turn, contains the totality of approved breath test procedures in Indiana—there is literally nowhere else to look for reference.
What Is the Officer Obligated to Do?
An Indiana officer who’s administering a certified breath test has one obligation: To read and comply with every step of the procedure laid out in section 2-4-2 of Title 260 of the Indiana Administrative Code. These aren’t suggestions—they’re requirements. There’s no wiggle room, and there’s no credit for getting the official procedure approximately right. The only way for an officer to obtain a certified breath sample in Indiana is to transport the DUI / OVWI suspect to an Intoximeters EC/IR II machine and perform the following instructions:
- STEP ONE: The officer must make sure the test subject hasn’t put anything into his or her mouth in 15 minutes. This includes food, drink and smoke—the mouth should remain absolutely clear for a quarter of an hour.
- STEP TWO: The officer must make sure the testing machine is ready.
- STEP THREE: The officer must press a specific button.
- STEP FOUR: The officer must sign in to the testing machine.
- STEP FIVE: The officer must note the start time of the 15-minute waiting period from STEP ONE.
- STEP SIX: The officer must affirm that he’s been in control of the test subject since the time noted in STEP FIVE.
- STEP SEVEN: If a different officer was in control of the test subject for the 15-minute period noted in STEP ONE, that officer’s information must be entered into the machine.
- STEP EIGHT: The officer must enter the incident information associated with the arrest report.
- STEP NINE: The officer must enter the test subject’s identifying information.
- STEP TEN: The officer must: (1) instruct the test subject to blow; and (2) remove and discard the used mouthpiece.
- STEP ELEVEN: The officer must: (1) attach a new mouthpiece; (2) instruct the test subject to blow; and (3) remove and discard the used mouthpiece.
- STEP TWELVE: The officer must print the test report and check its results. Results include not just whatever measurements the EC/IR II might have produced, but also any reported error messages and their corresponding remedies.
What Is the Officer Not Allowed to Do?
To correctly administer the certified breath test, an officer must perform at least 11 (STEP SEVEN may not apply) of the 12 explicit steps—but that’s not the end of the story. Even if the officer faithfully performs all 12 steps, there’s still the matter of error messages and the procedures attached to them. There are five such messages contemplated by Title 260:
- please blow
- interfering substance
- RFI (radio frequency interference) detected
- mouth alcohol
- insufficient sample
In the event that the EC/IR II machine returns one of these messages, the test administrator is obigated to follow a particularized alternate procedure in order to comply with the requirements of the Administrative Code.
There’s no room for deviation or improvisation, and the machine’s error protocols are just as strict and as formal as the testing procedures themselves. Whenever an error message is returned, the officer must continue following the instructions laid out in Title 260.
For example, if the machine produces a message that reads interfering substance, the officer must repeat the process beginning with STEP ONE. If, on the other hand, the machine produces a message that reads RFI detected, the officer must repeat the process beginning with STEP TWO. If any error message is repeated after a re-test, the officer has three options:
- obtain an alternate test for ethanol,
- administer a certified breath test using a different EC/IR II machine, or
- affirm whatever measurement the machine made by signing off on the report
In the event that an unrecognized error message appears—say, max flow exceeded—the officer always has the first two of these options available. Where machine error appears to be interfering with a police investigation, the State can either use a different machine or pursue a blood draw. For testing to be uniform, the approved methods must be applied to all tests—not simply to those that yield predictable results.
The Indiana Court of Appeals has held that 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.” As a result, the Court reasoned, “the detailed procedures to be followed reflect a determination that the test should be as accurate and free from uncertainty as possible.”
This is exactly why the procedure for obtaining a certified breath test is so strict and unforgiving. A “scientific” report is viewed with a certain deferential reverence that’s hard to overcome, which is why it’s critical to examine the certified chemical test results before it’s time for trial.
If you’re facing a DUI / OVWI charge, and your lawyer doesn’t know anything about the Indiana Administrative Code, it might be time to look for a better criminal defense attorney. Call the Marc Lopez Law Firm at 317-632-3642, and remember—always plead the 5th!