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Wednesday, March 02, 2005

Ind. Decisions - One today from the Supreme Court

Brenna Guy v. State of Indiana (3/2/05 IndSCt) [Criminal Law & Procedure; Statutory Construction]
Shepard, Chief Justice

The trial court denied Brenna Guy’s 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. * * *

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. * * *

The concern over foreign substances a person’s mouth is the potential for the substances to absorb and retain alcohol in the mouth, which could falsely elevate the breath alcohol concentration. * * * A number of studies have shown, though, that a fifteen to twenty-five minute waiting period during which nothing is placed in a person’s mouth allows sufficient time for any mouth alcohol to dissipate. * * * These studies support the department of toxicology’s decision to require that nothing be “put” in a person’s 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.

IV. Conclusion. We affirm the trial court’s 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 person’s mouth.

Posted by Marcia Oddi on March 2, 2005 01:47 PM
Posted to Ind. Sup.Ct. Decisions