Edward Wolpert v. State of Indiana
2015 Ind. App. LEXIS 762
| Ind. Ct. App. | 2015Background
- On December 19, 2014, police stopped Edward Wolpert; officer detected alcohol and Wolpert consented to chemical breath testing.
- Officer Derek Loshe administered an Intox EC/IR II breath test at the sheriff’s office; results were .151 and .153 g/210 L.
- State charged Wolpert with a Class A misdemeanor for operating with an alcohol concentration equivalent to .15 or more.
- At bench trial Wolpert objected to admission of the EC/IR II results, arguing the State failed to prove the certification of the dry gas (the chemicals) used to calibrate the device.
- The State introduced a signed Certificate of Inspection and Compliance for the breath instrument, issued under 260 IAC 2-3-2, which the trial court admitted; Wolpert was convicted.
- The Court of Appeals reviewed whether the State laid a proper foundation under Ind. Code § 9-30-6-5(d) and related administrative rules for admitting breath test results.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State established a proper foundation to admit EC/IR II breath-test results by proving certification of the chemicals used in testing | Certificate of inspection of the breath instrument under 260 IAC 2-3-2 is prima facie evidence that the instrument and the chemicals (controls) were inspected and approved, satisfying the foundation requirement | State failed to prove the certification of the dry gas (chemicals) separately as required by Ind. Admin. Rule 2-3-5, so test results should be excluded | The certificate of inspection for the device necessarily includes inspection/tests using certified ethanol standards per 260 IAC 2-3-2; the State met its foundation burden and admission was within the trial court’s discretion |
Key Cases Cited
- Fields v. State, 807 N.E.2d 106 (Ind. Ct. App.) (certificate of inspection is prima facie evidence that equipment and chemicals were inspected and approved)
- Nivens v. State, 832 N.E.2d 1134 (Ind. Ct. App.) (abuse-of-discretion standard for evidentiary rulings)
- Rush v. State, 881 N.E.2d 46 (Ind. Ct. App.) (appellate court will uphold trial ruling if sustainable on any legal theory in the record)
- State v. Rumple, 723 N.E.2d 941 (Ind. Ct. App.) (previously addressed breath-test certification issues; court here explains Rumple relied on a now-repealed administrative scheme and is inapplicable)