A TTORNEYS FOR A PPELLANT A TTORNEYS FOR A PPELLEE

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

- 000 92

S TATE OF I NDIANA , Appellant (Plaintiff below),

v.

J ASON C IOCH , 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 te st machine had not yet been adjusted2

to reflect d aylight s aving t ime 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. Data m aster. Before administering t he test, Chin noticed that the time on the
Data m aster had not been adjusted since the change to D aylight S aving s T ime the previous Sunday and therefore was off by one hour. Because Officer Chin did not have the ability to change the time on the Data m aster , 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

o f the breath test as well as the difference between the actual time and the ticket printed by the
Data m aster

. T he time noted on the evidence ticket and the actual time of the breath test were
both within three hours after the officers stopped Cioch.

Bec ause the breath test showed Cioch had a breath alcohol concentration equivalent to .08 gram s of alcohol per 210 liters of breath, the State charged him with operating while intoxicated in a manner that endangers a person, a c lass A misdemeanor, operating w hile intoxicated with an alcohol concentration equivalent to at least .08 gram s of alcohol but less than .15 gram s of alcohol per 210 liters of breath, a c lass 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 D aylight S aving s problem. T he trial court granted the motion, concluding3

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) ( T able)

.

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 case s only if the techniques employ ed 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 con ducting 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 re gulations. 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”), mod ified 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 the4

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 administeri ng 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 m achine showed an incorrect date, rather than the date the test was actually
administered

. T he court determined: “T he incorrect date on the print

- ou t 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. “T he 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 cour t 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 f ro m 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 call s into question the reliability of the instrument or the evidence ticket w hen 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.5

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 D aylight
S aving s difference, raises only a d e 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.