ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Gregory F. Zoeller Mathew S. Sandy

Attorney General of Indiana Teri A. Cummins

Lafayette, Indiana

Cynthia L. Ploughe

Indianapolis, Indiana

In the

Indiana Supreme Court 

No. 79S05-0902-CR-00092

STATE OF INDIANA,

Appellant (Plaintiff below),

v.

JASON CIOCH,

Appellee (Defendant below).

Appeal from the Tippecanoe Superior Court, No. 79D06-0712-CM-2168

The Honorable Michael Morrissey, Judge

On Petition to Transfer from the Indiana Court of Appeals, No. 79A05-0804-CR-218

July 1, 2009

Shepard, Chief Justice.

The defendant in this drunk driving prosecution persuaded the trial court to suppress the 

results of his blood alcohol breath test on grounds that the test machine had not yet been adjusted 
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to reflect daylight saving time since it took effect a few days earlier and the police officer wrote 

the actual time of day by hand on the test results printed by the machine.

We hold the evidence should not have been suppressed. 

Facts and Procedural History

On November 10, 2007, Purdue University Police Department officers stopped Jason 

Cioch for traveling the wrong direction on a one-way street. Once they did so, they concluded 

he was operating his vehicle while intoxicated and transported him for an alcohol concentration 

equivalency breath test. Eric Chin, a certified breath test operator, administered the breath test 

using a B.A.C. Datamaster. Before administering the test, Chin noticed that the time on the 

Datamaster had not been adjusted since the change to Daylight Savings Time the previous 

Sunday and therefore was off by one hour. Because Officer Chin did not have the ability to 

change the time on the Datamaster, he contacted several other local law enforcement agencies in 

an unsuccessful attempt to locate a breath test instrument with the correct time. Chin then 

administered the test, and Officer Neal noted in his Incident/Investigation Report the actual time 

of the breath test as well as the difference between the actual time and the ticket printed by the 

Datamaster. The time noted on the evidence ticket and the actual time of the breath test were 

both within three hours after the officers stopped Cioch.

Because the breath test showed Cioch had a breath alcohol concentration equivalent to 

.08 grams of alcohol per 210 liters of breath, the State charged him with operating while 

intoxicated in a manner that endangers a person, a class A misdemeanor, operating while 

intoxicated with an alcohol concentration equivalent to at least .08 grams of alcohol but less than 

.15 grams of alcohol per 210 liters of breath, a class C misdemeanor, and a traffic infraction for 

traveling the wrong direction on a one-way street. Cioch moved to suppress the evidence of the 

breath test, citing the Daylight Savings problem. The trial court granted the motion, concluding
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that the State failed to meet its burden of establishing an adequate foundation for admitting the 

evidence. 

The State appealed, and the Court of Appeals affirmed. State v. Cioch, No. 79A05-0804-

CR-218, slip op. at 6 (Ind. Ct. App. Dec. 11, 2008). We grant transfer, 899 N.E.2d 757 (Ind. 

2009) (Table). 

Admissibility of Evidence

The State asserts the trial court erred in suppressing the breath test results merely because 

of an inaccurate timestamp on the breath test print out. We agree. 

Breath test results are admissible in operating while intoxicated cases only if the 

techniques employed were those prescribed by the director of the department of toxicology at the 

Indiana University School of Medicine. Ind. Code § 9-30-6-5(a), (d) (2008); see also, Guy v. 

State, 823 N.E.2d 274 (Ind. 2005). 

The department’s approved techniques for conducting the test in question appear within 

Indiana’s Administrative Code. See 260 Ind. Admin. Code 1.1-4-8(6) (2007). Our caselaw 

commonly says that breath test results may be admitted only when the test was conducted in 

“strict compliance” with these regulations. See, e.g., Bowman v. State, 564 N.E.2d 309, 311-12 

(Ind. Ct. App. 1981) (“the detailed procedures to be followed reflect a determination that the test 

should be as accurate and free from uncertainty as possible”), modified on other grounds, 577

N.E.2d 569 (Ind. 1991).

The aspect of the breath test procedure challenged here is the timestamp on the evidence 

ticket. (Appellant’s Br. at 4.) The relevant section reads: “When the printer stops, remove the 
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EVIDENCE TICKET from the instrument and check the EVIDENCE TICKET for the numerical 

alcohol SUBJECT SAMPLE and correct date and time.” 260 I.A.C. 1.1-4-8(6) (2004).

1

 

The State argues that Officer Chin followed each of the required steps for administering 

the test and that the procedures require only that the operator to check the evidence ticket for the 

correct date and time and are silent as to what course of action the operator should take if an 

anomaly occur.

While Indiana courts have yet to discuss whether the accuracy of the time stamp has 

anything to do with the reliability of the test results, the Missouri Court of Appeals has discussed 

the issue. In Bradford v. Dir. of Revenue, 735 S.W.2d 208 (Mo. Ct. App. 1987), the print-out

from the breath machine showed an incorrect date, rather than the date the test was actually 

administered. The court determined: “The incorrect date on the print-out does not evidence a 

malfunction of the machine. It means either that someone forgot to reset the date . . . or, in the 

alternative, that the test in question was not given to Bradford.” Id. at 210. “The fact that 

someone forgot to reset the date is irrelevant to the issue of whether the machine functioned 

properly.” Id.

Two years later, the Missouri court decided Stuhr v. State, 766 S.W.2d 446 (Mo. Ct. App. 

1989), a case in which both the time and the date stamped on the evidence ticket were incorrect. 

Relying on Bradford, the court determined the wrong date on the print-out is not evidence of 

malfunction. Id. at 449. The court further declared that the “time and date component of the 

machine is a separate component from that of the sample collection portion of the unit” and the 

“machine will still function properly even if the time and date are incorrect.” Id. 

We find these decisions instructive. Here, Officer Chin followed each of the required 

steps of the procedure. The record does not indicate that he did anything that calls into question 

the reliability of the instrument or the evidence ticket when he noticed the erroneous timestamp

and wrote the actual time of day on it.

 

1 The language of this rule has subsequently changed. See 260 I.A.C. 1.1-4-8(6) (West 2009) for current language. 
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The best authority Cioch offers in support of his position is State v. Johanson, 695 N.E.2d 

965 (Ind. Ct. App. 1998). In Johanson, the Court of Appeals affirmed a trial court’s suppression 

of test results where the machine printed a blank ticket and the operator wrote in all the test 

information by hand from what he saw on the screen. Without reflecting on whether that was 

adequate ground for suppression, we think the officer’s action in this instance, noting a Daylight 

Savings difference, raises only a de minimus concern about the accuracy of the test results. We 

hold that this evidence is admissible. 

Conclusion 

We reverse the order of suppression.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.