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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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