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First impression case on mouthpieces as 'foreign substance'

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In a matter of first impression, a portable breath test mouthpiece isn’t a foreign substance that will act to invalidate the results of a blood alcohol content Datamaster chemical breath test, the Indiana Court of Appeals ruled today.

In State of Indiana v. James G. Lucas, No. 91A05-1003-CR-247, James Lucas argued his Datamaster results were invalid because he was given two portable breath tests within less than 20 minutes after being pulled over on suspicion of drunk driving. He argued that the mouthpiece used to administer the portable breath test was a “foreign substance” for purposes of chemical breath test regulations. The trial court granted his motion to suppress.

The procedures for administering a breath test using a B.A.C. Datamaster say a person must not have had any foreign substance in his mouth or respiratory tract within 20 minutes before the time a breath sample is given.

The appellate judges rejected that argument and reversed the motion to suppress. They relied on neighboring provisions within the Datamaster regulations that state if the test displays certain errors after giving a breath sample, the test should be repeated once the green LED light on the instrument is glowing. The 20-minute delay isn’t required, and under these circumstances, the test subject would have had an initial mouthpiece placed in his mouth in less than 20 minutes. This doesn’t invalidate the final result, wrote Judge Nancy Vaidik.

If the Datamaster mouthpiece isn’t considered a foreign substance, then the mouthpiece of the PBT shouldn’t be either.

“We acknowledge that PBTs and Datamasters are separate and distinct devices. Moreover, PBTs are less sophisticated than Datamasters and are not subject to certification by the State toxicology department. But PBTs are still recognized as standard breath testing instruments. The Indiana Code expressly sanctions their use by law enforcement and mandates their use in certain circumstances — even in tandem with chemical breath tests. Officer Stinson’s testimony further indicates that customary measures are observed to ensure that PBT mouthpieces are legitimate and uncontaminated,” she wrote.

The case was remanded for further proceedings.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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