Robert D. Mills v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
May 14 2018, 10:08 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John R. Watkins Curtis T. Hill, Jr.
Arata Law Firm Attorney General of Indiana
Fort Wayne, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert D. Mills, May 14, 2018
Appellant-Defendant, Court of Appeals Case No.
17A03-1709-CR-2251
v. Appeal from the DeKalb Superior
Court.
The Honorable Kevin P. Wallace,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
17D01-1703-CM-237
Friedlander, Senior Judge
[1] In this interlocutory appeal, Robert Mills challenges the trial court’s denial of
his motion to suppress. We affirm.
[2] The sole issue on appeal is whether the trial court erred by denying Mills’
motion to suppress the results of his breath test.
Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018 Page 1 of 6
[3] On March 28, 2017, Mills was arrested for operating a motor vehicle while
intoxicated and was transported to the Dekalb County Jail. The officer checked
Mills’ mouth for any foreign substances and did not find any. At the jail, the
arresting officer and the jail staff removed everything from Mills’ pockets and
performed another mouth check. Subsequently, the officer escorted Mills
through a locked door and down a secure hallway to a room where breath tests
are administered. Mills was not in handcuffs. Although there is video
surveillance of the breath test room, there is no surveillance of the hallway that
leads to the room. A breath test was then administered to Mills.
1
[4] Mills was charged with operating a vehicle while intoxicated and operating a
2
vehicle with an unlawful alcohol concentration in blood or breath, both Class
C misdemeanors. Mills then filed a motion to suppress the results of the breath
test. Following a hearing, the trial court denied Mills’ motion. Mills now
brings this interlocutory appeal.
[5] Mills contends the trial court erred by denying his motion to suppress the results
of his breath test because the State failed to lay a sufficient foundation for their
admission. Particularly, Mills argues that because he was not handcuffed and
was very briefly behind the officer when entering the hallway that had no video
1
Ind. Code § 9-30-5-2(a) (2001).
2
Ind. Code § 9-30-5-1(a) (2001).
Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018 Page 2 of 6
surveillance, the State could not show that he had not put anything into his
mouth during the requisite fifteen-minute period.
[6] As the party offering the breath test results, the State has the burden of
establishing the foundation for their admission. Wolpert v. State, 47 N.E.3d
1246 (Ind. Ct. App. 2015), trans. denied. In order for the results of a chemical
breath test to be admissible, the test operator, test equipment, chemicals used in
the test, and techniques used in the test must have been approved in accordance
with the rules adopted by the Department of Toxicology. Ind. Code § 9-30-6-
5(d) (2011). Thus, the State must set forth the proper procedure for
administering a chemical breath test and show that the operator followed that
procedure. State v. Molnar, 803 N.E.2d 261 (Ind. Ct. App. 2004).
[7] The sufficiency of a foundation for admitting the results of a breath test is a
matter within the sound discretion of the trial court. Stewart v. State, 754
N.E.2d 608 (Ind. Ct. App. 2001). Thus, we will reverse a trial court’s decision
on the matter only if it is clearly against the logic and effect of the facts and
circumstances before the court or if the court has misinterpreted the law. Nivens
v. State, 832 N.E.2d 1134 (Ind. Ct. App. 2005).
[8] The procedure promulgated by the Department of Toxicology for administering
a breathalyzer test and set forth in the administrative code states, in relevant
part, “The person to be tested must not have put any foreign substance into his
or her mouth or respiratory tract … within fifteen (15) minutes before the time
the first breath sample is taken.” 260 Ind. Admin. Code 2-4-2 (2014).
Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018 Page 3 of 6
[9] Here, the officer testified that he performed a “mouth check” on Mills and
explained that this includes looking “inside the mouth of the individual” and
having “him lift his tongue to verify that there’s no foreign objects inside their
mouth.” Tr. p. 6. In addition, the officer and the jail staff removed everything
from Mills’ pockets when he arrived at the jail and performed another mouth
3
check. Further, during viewing of the jail’s surveillance video, the officer
testified as follows:
Q: Where were you going at this point? You’re going
through a door and the Defendant is behind you. Where are you
going?
A: I was going to the intox [breath test] room.
Q: Ok. Now how long was the Defendant behind you?
A: Typically I just open the door for them right here and then
I shut the door and walk, follow them down to the intox room.
*******
Q: Ok. So do you hold the door open for him and then he
gets in front of you?
A: Right and because it’s a secured site, that door’s always
locked until a jailer in another room opens it. So I make sure
that door locks behind after he goes through.
Q: Alright, ok. So that’s how you would do this basically any
time?
A: Yes.
3
Although the jail’s surveillance video was viewed and discussed during the suppression hearing, it was not
admitted as an exhibit and was not included in the documents on appeal. The video showed Mills and the
officer as they were entering the hallway to the breath test room and then when they were arriving at and
while they were in the breath test room. The hallway itself had no video surveillance.
Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018 Page 4 of 6
*****
Q: But he walks in front of you from that point forward?
A: Yes, I believe so.
Id. at 9-10.
Q: I’m gonna ask you officer, was there any time you made
any observation or any type of observation at all where you
thought that he had a foreign, a foreign object in his mouth at
any time?
A: No.
Q: And is it, you, did you follow the standard approved
methods checklist?
A: I did follow the approved method.
Id. at 12.
[10] Mills attempts to make much of the fact that the surveillance video shows the
officer walking in front of him to open the door to the hallway leading to the
breath test room. He suggests that the officer remained in front of him through
the doorway and down the hallway and, therefore, claims the officer was
unable to observe if he put a foreign object in his mouth. In his reply brief,
Mills further proposes that the State did not negate the possibility that he put his
finger and/or his fingernail in his mouth in the hallway during this time. Yet,
these arguments ignore the officer’s testimony. The officer testified that, as he
entered the hallway to go to the breath test room, Mills was behind him. He
held the door open for Mills to enter the hallway, made sure the door was
securely shut, and then followed Mills down the hallway. See id. at 9-10. The
officer further testified that at no time did he observe a foreign object in Mills’
Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018 Page 5 of 6
mouth. Id. at 12. The State met its burden of establishing the requisite
procedure for admission of chemical breath test results. Thus, the trial court did
not abuse its discretion in denying Mills’ motion to suppress the results.
[11] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 17A03-1709-CR-2251 | May 14, 2018 Page 6 of 6