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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.