COA: Breath test properly admitted

A man convicted of drunken-driving failed to convince the Indiana Court of Appeals that the state did not prove that the chemicals used in his breath test equipment were certified under Indiana administrative rules.

Edward Wolpert was pulled over by police and smelled of alcohol. He consented to a chemical test, which was administered at the Adams County Sheriff’s Office using the Intox EC/IR II. His samples tested at 0.151 and 0.153 grams per 210 liters of breath, so the state charged him with Class A misdemeanor operating a vehicle with an alcohol concentration equivalent to 0.15 or more.

He objected during his bench trial to the admission of the test results, claiming the state did not lay proper foundation because it had not proven that the certification of the dry gas used to calibrate the machine that tested him. The court denied his objection and he was convicted as charged.

The state does not need to admit evidence to demonstrate the certification of the chemicals alone, Judge Melissa May wrote, because proof of that certification is provided by the certificate that proves the breath test equipment passed the required inspection. The state in this case entered into evidence the signed “certificate of inspection and compliance of breath test instrument,” which showed the Intox EC/IR II was in compliance with the standards of 260 IAC 2-3-2.

Therefore, the state provided a proper foundation for its admission of the results of the breath test, the COA held in Edward Wolpert v. State of Indiana, 01A02-1506-CR-561.