Attorneys for Appellant Attorneys for Appellee
Robert W. Hammerle Steve Carter
Joseph M. Cleary Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Attorneys for Amicus Curiae
Micah J. Cox
Indiana Criminal Justice Institute
Indiana Supreme Court
Appellant (Defendant below),
State of Indiana,
Appellee (Plaintiff below).
Interlocutory Appeal from the Marion Superior Court, No. 49F08-0108-CM-173167
The Honorable Barbara Collins, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0206-CR-00267
March 2, 2005
Shepard, Chief Justice.
The trial court denied Brenna Guys motion to suppress the results of her
breath test, administered to assess intoxication. This interlocutory appeal presents the question
whether a tongue stud inserted in her mouth more than twenty minutes before
the test renders the results of the test inadmissible. We conclude that
it does not, and affirm.
Facts and Procedural History
Indianapolis Police Officer Corey Shaffer observed Brenna Guy driving on the wrong side
of the street in downtown Indianapolis during the early morning hours of August
24, 2001. He pulled Guy over and conducted three field sobriety tests,
all of which Guy failed. Shaffer decided to administer a breath test.
He observed Guy at least twenty minutes before the test to make
sure that she did not eat, drink, smoke, or place anything in her
mouth during that period. He inspected Guys mouth before the test
and noticed her tongue stud piercing but did not ask her to remove
it. Guy submitted to the test, which returned an alcohol concentration reading
of .11 grams of alcohol per 210 liters of breath. Shaffer arrested
Guy, and the State charged her with operating while intoxicated and operating with
a blood alcohol content between .08 and .15.
Guy moved to suppress the breath test results. Concluding that the tongue
stud was not a foreign substance under
Ind. Admin. Code tit. 260, r.
1.1-4-8(1) (2004), the trial court denied her motion. The Court of Appeals
reversed, holding that under the regulation a person to be tested must not
have had any foreign substance in his or her mouth and that a
tongue stud is a foreign substance. Guy v. State, 805 N.E.2d 835,
840-42 (Ind. Ct. App. 2004) vacated.
I. Results Admissible Only if Techniques Followed
Guy correctly observes that breath test results are admissible in an operating while
intoxicated case only if the techniques employed have been approved by the director
of the department of toxicology at the Indiana University School of Medicine.
Ind. Code Ann. § 9-30-6-5(a), (d) (West 2004). The departments approved techniques
for conducting the test in question here (a B.A.C. Datamaster with keyboard) appear
at Ind. Admin. Code tit. 260, r. 1.1-4-8(1) (2004). The regulation specifies,
[t]he person to be tested must have had nothing to eat or drink,
must not have put any foreign substance in his or her mouth or
respiratory tract, and must not smoke within twenty (20) minutes prior to the
time the breath sample is taken. Id. (emphasis added).
Guy acknowledges that the tongue stud was not
put in her mouth during
the twenty minute waiting period, but contends that a correct interpretation of the
regulation is that the person must not have had any foreign substance in
his or her mouth during the waiting period. (Br. in Opposition to
Pet. to Trans. at 3-5).
II. The Regulation Says Put
The primary rule in statutory construction is to determine and give effect to
the intent of the legislature. Hendrix v. State, 759 N.E.2d 1045 (Ind.
2001). The best evidence of legislative intent is the language of the
statute itself, and all words must be given their plain and ordinary meaning
unless otherwise indicated by statute. Chambliss v. State, 746 N.E.2d 73 (Ind.
2001). These principles apply equally to administrative regulations.
Indiana Port Comm'n
v. Consolidated Grain and Barge Co., 701 N.E.2d 882, 890 (Ind. Ct. App.
The instant regulation, of course, uses the word put when referring to foreign
substances. The ordinary meaning of put is to place or cause to
be placed in a specified position or relationship.
Websters Third New International
Dictionary 1849 (1993).
The legislative history of the rule suggests that the department of toxicology chose
the language purposefully. The proposed version of the rule read, The person
to be tested . . . must not have any foreign substance in
his/her mouth or respiratory tract . . . 6 Ind. Reg. 2440
(1983). In adopting the final regulation, the department inserted put after have.
7 Ind. Reg. 340, 389 (1984). Guys interpretation of the regulation
(namely that no foreign substance can be in the mouth for twenty minutes
prior to the test) is contrary to the apparently conscious decision of the
We come to this conclusion despite our decision in
State v. Albright, 632
N.E.2d 725 (Ind. 1994). We noted in Albright that the regulation requires
a twenty-minute waiting period, and said that the subject may not have had
any foreign substance in his mouth during this time. Id. at 725.
The main issue in Albright was whether the police officer actually waited
the required twenty minutes. Id. at 725-26. There was no discussion
about the meaning of put. Albrights precedential value on the point at
issue in this case is zero.
III. Guys Arguments Are Presented Without Science
The logical conclusion to draw from the department of toxicologys use of the
word put is that any foreign substance placed in a persons mouth more
than twenty minutes prior to a breath test poses no problem for the
reliability of the results. Guy argues that if put means put, the
regulation produces an absurdity in that it would allow admission of breath test
results despite a person putting anything in her mouth more than twenty minutes
prior to the test. (Appellants Br. in Opp. to Transfer at 3).
While one could imagine a Brandeis brief on this topic, Guy neither submitted
to the trial court nor referred us to any scientific evidence in support
of her contention about absurd results.
In fact, the science available in the public domain points in the opposite
direction. The concern over foreign substances in a persons mouth is the
potential for the substances to absorb and retain alcohol in the mouth, which
could falsely elevate the breath alcohol concentration.
See Patrick M. Harding et
al., The Effect of Dentures and Denture Adhesives on Mouth Alcohol Retention, 37
J. Forensic Sci. 999, 999-1000 (1992). A number of studies have shown,
though, that a fifteen to twenty-five minute waiting period during which nothing is
placed in a persons mouth allows sufficient time for any mouth alcohol to
dissipate. See, e.g., Id. at 999; Barry K. Logan & Rodney G.
Gullberg, Lack of Effect of Tongue Piercing on an Evidential Breath Alcohol Test,
43 J. Forensic Sci. 239, 239-40 (1998); Ronald L. Moore & J. Guillen,
The Effect of Breath Freshener Strips on Two Types of Breath Alcohol Testing
Instruments, 49 J. Forensic Sci. 1, 1-3 (2004). These studies support the
department of toxicologys decision to require that nothing be put in a persons
mouth within twenty minutes of a breath test.
To be sure, the department and the State could be obliged to defend
the validity of the regulations should a defendant submit admissible scientific studies or
expert testimony to a trial court in support of a motion to suppress.
That has not occurred here.
We affirm the trial courts denial of the motion to suppress.
Dickson, Sullivan, and Rucker, JJ., concur.
Boehm, J., concurs in result, concluding that some substances could retain alcohol even
if put in the mouth more than twenty minutes before testing, but studs,
dentures, etc. are not foreign if ordinarily found in the persons mouth.
Our holding renders moot the question of whether a tongue stud is
a foreign substance. Suffice it to say that distinctions between tongue studs
and other substances that can be inserted into a persons mouth, i.e. dental
devices, pennies, etc., based on removability or volume are unavailing by themselves.
The key consideration is what affect that substance has on the accuracy of
Named after former U.S. Supreme Court Justice Louis D. Brandeis, a Brandeis
brief is one that uses social and economic studies to support legal arguments.
Blacks Law Dictionary 200 (8th ed. 2004). The term became popular
after Justice Brandeis, as an advocate, persuaded the U.S. Supreme Court to uphold
a statute capping the length of a womans workday with a brief citing
such studies in Muller v. Oregon, 208 U.S. 412 (1908). Id.