Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Jane Ann Noblitt

Columbus, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela N. Sanchez

Supervising Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Anastacia Sanchez-Franco,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 28, 2017

Court of Appeals Case No.

03A04-1610-CR-2279

Appeal from the Bartholomew

Superior Court

The Honorable Kathleen Tighe 

Coriden, Judge

Trial Court Cause No.

03D02-1507-CM-3281

Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017 Page 2 of 10

[1] Anastacia Sanchez-Franco appeals her conviction for operating with a blood 

alcohol content of .08 as a class C misdemeanor. Sanchez-Franco raises one 

issue which we revise and restate as whether the trial court abused its discretion 

in admitting into evidence the results of a breath test. We affirm. 

Facts and Procedural History

[2] On June 14, 2015, Columbus Police Officer Maren Crabtree observed SanchezFranco drive left of center over a double yellow line and initiated a traffic stop. 

Officer Crabtree noticed the smell of an alcoholic beverage on Sanchez-Franco

and asked her if she had anything to drink. Sanchez-Franco replied that she 

had had two drinks, Officer Crabtree administered three field sobriety tests 

which Sanchez-Franco failed, and Sanchez-Franco agreed to take a breath test

and was transported to the police station. At the station, Officer Charles 

Bernard Sims administered a certified breath test, and the results indicated that 

Sanchez-Franco’s blood alcohol content was 0.099. 

[3] On July 1, 2015, the State charged Sanchez-Franco with: Count I, operating 

while intoxicated endangering a person as a class A misdemeanor; and Count 

II, operating with an alcohol concentration equivalent of at least 0.08 as a class 

C misdemeanor. The court held a suppression hearing on February 24, 2016. 

Sanchez-Franco filed a memorandum in support of motion to suppress on 
Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017 Page 3 of 10

March 7, 2016, the State filed a response on March 11, 2016, and the court 

denied Sanchez-Franco’s motion to suppress on March 22, 2016.

1

 

[4] On May 25, 2016, the trial court held a bench trial at which the State presented 

the testimony of Officers Crabtree and Sims. Officer Sims testified that he 

administered a certified breath test, that at the time he was certified to do so, 

and that he followed the standard procedures for that test. When asked the test 

results, Sanchez-Franco’s counsel objected and argued: “I don’t think that the 

foundation has been laid to be able to get any results in of this test. Specifically

they have to lay the foundation that he has been certified to (garbled) specific 

instrument and I don’t know what instrument.” Transcript at 42. The 

prosecutor presented State’s Exhibit 2, which contains a memorandum from the 

State Department of Toxicology stating that the officers named in the document 

are certified and recertified to administer evidentiary breath tests between 

November 2013 and November 30, 2015, and Officer Sims’s name is included 

in the list. The prosecutor also presented State’s Exhibit 3, which contains a 

Certificate of Inspection and Compliance of Breath Test Instrument stating that 

inspection of the instrument listed was performed, it was certified that the 

instrument was in compliance with the standards of 260 IAC 2-3-2, the 

inspection date was June 9, 2015, the instrument serial number was 010903, 

 

1 The record does not contain a written motion to suppress. The transcript of the suppression hearing and 

Sanchez-Franco’s memorandum reveal that she moved to suppress the evidence based on the Fourth 

Amendment and Article 1, Section 11 of the Indiana Constitution and argued that Officer Crabtree 

mistakenly believed that she committed a traffic violation. 
Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017 Page 4 of 10

and that the agency was the Columbus Police Department. At the prosecutor’s 

request, the court admitted State’s Exhibit 1 containing the instrument printout 

showing the results of the breath test. The instrument printout provides: 

Intox EC/IR-II: Subject Test

* * * * *

Serial Number: 010903 Test Number: 211

Test Date: 06/14/2015 Test Time: 04:11 EDT

Operator Name: Sims, Charles B

Operator Certification Number: B115686

Agency Name: COLUMBUS POLICE DEPT

Observation Began: 06/14/2015 at 03:50

Observer Name: Sims, Charles B

Driver License Number: 0000000000

Subject Name: Sanchez, Anastacia F

Subject D.O.B.: 04/28/1976

* * * * *

System Check: Passed 

Test g/210L Time 

BLK 0.000 4:12

CHK 0.079 4:13 

BLK 0.000 4:14 

SUBJ 0.103 4:16 

BLK 0.000 4:18 

SUBJ 0.099 4:19 

BLK 0.000 4:21 

CHK 0.078 4:21 

BLK 0.000 4:23

Test Status Sample Complete 

RESULT: 0.099 g/210L

4:19 EDT,
Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017 Page 5 of 10

6/14/2015

State’s Exhibit 1. 

[5] Officer Sims testified that Sanchez-Franco removed gum from her mouth prior 

to the start of the fifteen-minute observation period. He further testified that the 

test takes two different samples from the subject, that it records the lower of the 

two samples, and that in this case that result was 0.099. The court found 

Sanchez-Franco not guilty on Count I and guilty on Count II and sentenced her 

to sixty days, all suspended to probation. 

Discussion

[6] The issue is whether the trial court abused its discretion in admitting into 

evidence the results of the breath test. Generally, we review the trial court’s

ruling on the admission or exclusion of evidence for an abuse of discretion. 

Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only 

when the decision is clearly against the logic and effect of the facts and 

circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied.

We may affirm a trial court’s decision regarding the admission of evidence if it 

is sustainable on any basis in the record. Barker v. State, 695 N.E.2d 925, 930 

(Ind. 1998), reh’g denied. Even if the trial court’s decision was an abuse of 

discretion, we will not reverse if the admission constituted harmless error. Fox 

v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.

[7] Sanchez-Franco asserts that the State failed to establish the proper procedure 

for administering the breath test set forth at 260 IAC 2-4-2 and failed to show
Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017 Page 6 of 10

that the test operator followed that procedure. She argues that the State gave 

only cursory attention to Step One of the procedure and there was no testimony 

regarding whether she had had anything to eat or drink or had smoked. The 

State responds that Sanchez-Franco waived review of any deficiency in the 

foundation that she did not raise in the trial court and that it provided an 

adequate basis for the trial court to conclude that the standard procedure was 

applied in this case. 

[8] The Indiana Administrative Code, at 260 IAC 2-4-2, provides the approved 

method for a breath analysis using the Intox EC/IR II breath test instrument. 

We first note that Sanchez-Franco states in his appellant’s brief that he does not 

challenge Officer Sims’s certification to operate the machine or the certification 

of the instrument. With respect to her argument that the State failed to 

establish the procedure for administering the breath test, we observe that she did 

not raise that argument before the trial court and thus that argument is waived.2

 

See Mullins v. State, 646 N.E.2d 40, 44 (Ind. 1995) (noting that the defendant 

argued on appeal that the State offered no evidence of the approved procedure 

for administering the breath test, that while the defendant objected to the 

admission of the test results on other bases, he did not object on that basis at 

 

2 When the prosecutor asked Officer Sims the result of the breath test, Sanchez-Franco’s counsel objected, 

stating he did not think a foundation had been laid for the admission of the test results and asserting: 

“Specifically they have to lay the foundation that he has been certified to (garbled) specific instrument and I 

don’t know what instrument.” Transcript at 42. Sanchez-Franco did not specifically object on the ground

that the State did not establish the proper procedure for administering breath tests. 
Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017 Page 7 of 10

trial, and that failure to state the specific basis for objection waives the issue on 

appeal). 

[9] Waiver notwithstanding, the Indiana Supreme Court has held that “the State 

need not present any evidence of what the approved procedures for 

administering a breath test are because regulations in the Administrative Code 

prescribe those procedures and because those regulations are to be judicially 

noticed.” Mullins, 646 N.E.2d at 46. See also Baran v. State, 639 N.E.2d 642, 

647-648 (Ind. 1994) (holding that, “[b]ecause this was a bench trial and the 

court was commanded by statute to take judicial notice that the breath testing

machines must measure blood alcohol content as a percentage of alcohol by 

weight in the blood, the absence of notice was not reversible error”). We 

conclude that the approved procedure for administering a breath test was 

properly before the trial court and that, because this was a bench trial and the 

court was required to take judicial notice of the regulation concerning breath 

testing, the fact the court did not notify the parties it would take judicial notice 

of the applicable procedure does not require reversal. See Mullins, 646 N.E.2d at 

46 (holding that the regulation prescribing the proper procedure for 

administering a breath test was properly before the court). 

[10] Finally, with respect to whether Officer Sims followed the steps found at 260 

IAC 2-4-2, we note that a verbatim recitation of the procedure in the regulation

is not required. See Baran, 639 N.E.2d at 646. The record establishes that the 

State elicited testimony from Officer Sims that he administered the breath test 

and that he followed the standard procedure for that test. When asked if he 
Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017 Page 8 of 10

recalled the procedure or how he knew he followed it, Officer Sims answered “I 

used the form that is provided there. I go down the list, follow the form using 

standard operating procedures as called for.” Transcript at 46. 

[11] As to Step One in particular, 260 IAC 2-4-2 provides in part: 

STEP ONE: The person to be tested must:

(A) have had nothing to eat or drink;

(B) not have put any foreign substance into his or her 

mouth or respiratory tract; and

(C) not smoke;

within fifteen (15) minutes before the time the first breath sample 

is taken or at any time from the taking of the first breath sample 

until after the taking of the final breath sample.

[12] Officer Sims indicated that part of the procedure is to check for any foreign 

substances in the person’s mouth, and when asked if there were any, he testified 

“I believe she had taken out some chewing gum prior to that and then we 

waited the required fifteen minute waiting period.” Id. at 42. He later testified 

that the procedure involved “basically observing the subject, making sure there 

is nothing foreign in the mouth, checking physically,” “there’s a fifteen minute 

waiting period after that, make sure nothing else goes in the mouth after that,”

and “[t]he time is logged when the test is started.” Id. at 46. When asked if the 

gum was removed from Sanchez-Franco’s mouth “[r]ight before the exam,” 

Officer Sims testified “(garbled) to ensure there is nothing in her mouth before 

the test starts. So once her mouth is clear” and “[a]fter her mouth is cleared, 
Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017 Page 9 of 10

the fifteen minute observation period will start.” Id. at 47. The instrument 

printout showing the breath test results indicates that observation of SanchezFranco began at 3:50, the first sample was taken over fifteen minutes later at 

4:16, and the second sample was taken at 4:19. 

[13] Further, Sanchez-Franco does not specifically identify which step or steps 

following Step One that she believes Officer Sims did not perform. We note 

that a number of the steps beyond Step One in 260 IAC 2-4-2 are primarily 

administrative in nature, such as entering information into the test instrument,

3

and the fields contained in the instrument printout for Sanchez-Franco are 

completed with the information referenced in those steps, indicating the 

instrument operator entered the information as requested. Officer Sims testified 

he followed the procedure, and the instrument printout identifies the instrument 

used, states that a system check passed, indicates the name of Officer Sims and 

his certification number as the operator, provides that the observation began at 

3:50 on June 14, 2015, indicates that Officer Sims was the test observer, 

identifies Sanchez-Franco as the subject and states her date of birth, and 

provides that the result of the second breath test sample was 0.099 grams of 

 

3 Steps Two and Three involve verifying the instrument is in ready mode and pressing enter to start the test; 

Step Four is inserting an identification card and entering the information of the breath test operator; Step 

Five is entering the beginning date and time of the fifteen-minute observation period; Steps Six and Seven 

involve entering the information of the officer with control of the subject during the fifteen-minute period; 

Step Eight is to enter incident information requested by the instrument display; Step Nine is entering subject 

information by inserting the subject’s driver or identification card or entering information requested by the 

instrument display; Step Ten is placing a new mouthpiece in the breath tube, instructing the subject to deliver 

a breath sample, and removing the mouthpiece when prompted; Step Eleven is again having the subject 

deliver a breath sample; and Step Twelve is printing the instrument report and removing it from the printer. 

See 260 IAC 2-4-2. 
Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2279 | February 28, 2017 Page 10 of 10

alcohol per 210 liters of breath at 4:19 on June 14, 2015. The record does not 

reveal that Officer Sims did not follow the required steps of the procedure or 

indicate anything that calls into question the reliability of the instrument or the 

instrument printout. There was sufficient evidence from which the trial court 

could have concluded that Officer Sims properly performed each step of the 

procedure. See Baran, 639 N.E.2d at 646 (concluding there was sufficient 

evidence from which the trial court could have concluded that the trooper 

properly performed each step of the procedure). 

[14] Based upon the record, we cannot say that the State did not establish that 

Officer Sims followed the applicable procedure in administering the breath test 

or that the trial court abused its discretion in admitting the breath test results. 

Conclusion

[15] For the foregoing reasons, we affirm Sanchez-Franco’s conviction for operating 

with a blood alcohol content of .08 as a Class C misdemeanor. 

[16] Affirmed. 

Vaidik, C.J., and Bradford, J., concur.