Court of Appeals of Indiana | Opinion 01A02-1506-CR-561 | December 21, 2015 Page 1 of 6

ATTORNEY FOR APPELLANT

John R. Watkins

Arata Law Firm

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Edward Wolpert,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 21, 2015

Court of Appeals Case No.

01A02-1506-CR-561

Appeal from the Adams Superior 

Court

The Honorable Patrick R. Miller, 

Judge

Trial Court Cause No.

01D01-1412-CM-339

May, Judge.
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[1] Edward Wolpert appeals his conviction of Class A misdemeanor operating a 

vehicle with an alcohol concentration equivalent of .15 or more.1

 Wolpert 

argues the trial court abused its discretion when it admitted his EC/IR II test2

results because the State did not lay a proper foundation for the admission of 

that evidence. We affirm.

Facts and Procedural History

[2] On December 19, 2014, police stopped Wolpert’s vehicle. The officer noticed 

the smell of alcohol on Wolpert’s breath and asked Wolpert if he would submit 

to a chemical test to determine his blood alcohol content. Wolpert agreed and 

was transported to the Adams County Sheriff’s Office where Officer Derek 

Loshe administered a breath test using the Intox EC/IR II. Wolpert’s breath 

samples tested at .151 and .153 grams per 210 liters of breath.

[3] The State charged Wolpert with Class A misdemeanor operating a vehicle with 

an alcohol concentration equivalent to .15 or more. During Wolpert’s bench 

trial, he objected to the admission of the test results from the Intox EC/IR II, 

arguing the State did not lay a proper foundation because it had not proved the 

certification of the dry gas used to calibrate the Intox EC/IR II that tested 

Wolpert. The trial court denied Wolpert’s objection and convicted him of Class 

 

1 Ind. Code § 9-30-5-1(b).

2 The EC/IR test is a chemical test that uses two breath samples to determine the alcohol content in a 

person’s body.
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A misdemeanor operating a vehicle with an alcohol concentration equivalent to 

.15 or more.

Discussion and Decision

[4] “The admission of chemical breath test results is left to the sound discretion of 

the trial court and will be reviewed for an abuse of discretion.” Fields v. State, 

807 N.E.2d 106, 109 (Ind. Ct. App. 2001), trans. denied. An abuse of discretion 

occurs when the trial court’s decision is clearly against the logic and effect of 

the facts and circumstances before the court, or if the trial court has 

misinterpreted the law. Nivens v. State, 832 N.E.2d 1134, 1136 (Ind. Ct. App. 

2005), reh’g denied. The State has the burden of establishing the foundation for 

admitting the results. Fields, 807 N.E.2d at 109. A trial court ruling will be 

upheld if it is sustainable on any legal theory supported by the record, even if 

the trial court did not use that theory. Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct.

App. 2008).

[5] The results of a chemical test involving the analysis of a person’s breath are not 

admissible in a proceeding concerning driving while intoxicated, Ind. Code § 9-

30-5-1(b), if “(1) the test operator; (2) the test equipment; (3) the chemicals used 

in the test, if any; or (4) the techniques used in the test; have not been approved 

in accordance with the rules adopted under subsection (a).” Ind. Code § 9-30-6-

5(d). Under subsection (a), the director of the state department of toxicology is 

required to adopt rules regarding, in relevant part: “(2) Standards and 
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regulations for the: (A) selection; and (B) certification; of breath test equipment 

and chemicals.” Ind. Code § 9-30-6-5(a).

[6] Wolpert argues the State did not prove the “chemicals used in the test” were 

certified under Ind. Admin. Rule 2-3-5, which states:

The property values of chemicals used in the inspections 

described in section 2 of this rule and used as controls in the 

performance of evidentiary breath tests shall be certified by a 

procedure that establishes traceability to an accurate realization 

of the unit in which the property values are expressed, and for 

which each certified value is accompanied by an uncertainty at a 

stated level of confidence.

[7] However, the State need not admit evidence that demonstrates the certification 

of the chemicals alone because proof of that certification is provided by the 

certificate that proves the breath test equipment passed the required inspection. 

It is included in the administrative rule regarding certification and inspection of 

the breath test equipment, which states in relevant part:

(a) A person authorized by the department shall inspect each 

breath test instrument at the instrument’s established location at 

least once every one hundred eighty (180) days. If the location of 

a breath test instrument is changed, the instrument must be 

inspected and certified under this rule prior to use.

(b) The inspection shall include at least one (1) test 

demonstrating that the breath test instrument:

(1) is in good operating condition; and
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(2) satisfies the accuracy requirements in subsection . . . (f).

(c) The inspection shall include tests using ethanol-water or ethanol-gas 

standards selected and certified under section 5 of this rule to simulate 

breath samples.

(d) The analytical results of inspection tests shall be expressed to 

the third decimal place.

* * *

(f) The analytical results of Intox EC/IR II breath test 

instruments shall not deviate more than five percent (5%) or 

0.005, whichever is greater, from the certified value of the 

ethanol-water standard or the value adjusted for the ambient 

barometric pressure of the certified ethanol-gas standard.

260 Ind. Admin. Rule 2-3-2 (2014) (emphasis added). 

[8] The 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 

approved by the Department of Toxicology and was in proper working 

condition on the date of the chemical breath test if the approval was given not 

more than 180 days before the chemical breath test.” Fields, 807 N.E.2d at 111. 

Ind. Admin. Rule 2-3-2 requires that the inspector examine not only the device 
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but also the chemicals used within. The State provided evidence such 

certification existed. We therefore cannot say the trial court abused its 

discretion when it admitted the results of Wolpert’s breath test.3

Conclusion

[9] The trial court did not abuse its discretion when it admitted the results of 

Wolpert’s breath test because the State provided a proper foundation for its 

admission by submitting the inspection certification as required by Ind. Code § 

9-30-6-5(d). Accordingly, we affirm.

[10] Affirmed.

Crone, J., and Bradford, J., concur.

 

3 Both parties cite State v. Rumple, 723 N.E.2d 941 (Ind. Ct. App. 2000), in support of their respective 

arguments. However, our decision in Rumple was based on a now-repealed version of the Indiana 

Administrative Code regarding the certification of devices used to measure a person’s BAC and thus is not 

applicable to this case.