« Ind. Decisions - SD Ind. decision re environmental activist now available | Main | Ind. Law - Notable entries this morning from other Indiana law blogs »

Monday, April 04, 2005

Ind.Decisions - Indiana tongue stud case cited

A story today in the North Platte Bulletin (Nebraska), complete with this not-to-be-missed photo, reports that:

A judge in Lincoln Count has ruled that wearing a tongue stud will not get a suspected drunken driver off the hook.

Judge Kent Turnbull recently rejected an argument from an attorney who argued that a Breathalyzer test should not be admitted as evidence against his client because the man wore a stud in his tongue. The stud was a foreign object, he argued, and police should have removed it before administering the test. * * *

His attorney, Russ Jones, of North Platte, noted the Indiana Court of Appeals had ruled that an officer's failure to remove a tongue stud violated state law and made a breath test inadmissible as evidence.

Turnbull said the question of whether a tongue stud could influence the result of a breath test could be argued at trial, but it cannot be ruled inadmissible.

Perhaps the Indiana decision should have been "Shepardized." The case referenced is Brenna Guy v. State of Indiana (4/2/04 IndCtApp), where the Court of Appeals held: "[A] breath test given to a woman wearing a stainless steel stud in her pierced tongue is inadmissible in court because the stud is a "foreign" object."

However, the Indiana Supreme Court vacated the Court of Appeals decision, granted a petition to transfer and, in Brenna Guy v. State of Indiana (3/2/05 IndSCt), ruled:

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 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.

Posted by Marcia Oddi on April 4, 2005 06:57 PM
Posted to Ind. App.Ct. Decisions