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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. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

  3. I always wondered why high fence deer hunting was frowned upon? I guess you need to keep the population steady. If you don't, no one can enjoy hunting! Thanks for the post! Fence

  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

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