Najam, J.
Brian Harold Connor appeals his conviction for operating a vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol but less than 0.15 gram of alcohol per 210 liters of breath, as a Class C misdemeanor, following a bench trial. …
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On March 17, 2017, the Indianapolis Metropolitan Police Department (“IMPD”) conducted a sobriety checkpoint near the intersection of Delaware Street and Michigan Street. At approximately 7:25 p.m., Connor arrived at the sobriety checkpoint, and IMPD Captain Don Weilhamer stopped Connor. …
… Captain Weilhamer then administered a series of field sobriety tests to Connor. Connor passed the test that required him to stand on one leg, but he failed the horizontal gaze nystagmus test and the walk and turn test. Captain Weilhamer then read Connor the implied consent advisement, and Connor agreed to take a chemical breath test.
Captain Weilhamer escorted Connor to a local police station and administered a breath test using the Intox EC/IR II machine. When Connor blew into the mouthpiece for the test, he blew so hard that the instrument registered a “maximum flow exceeded” message. Captain Weilhamer then waited approximately three minutes, replaced the mouthpiece, and administered another test using the same machine. The results of the second breath test showed that Connor had an alcohol concentration equivalent to 0.097 gram of alcohol per 210 liters of breath. …
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The trial court held a bench trial on November 13, 2017. … The trial court bifurcated the trial and allowed the parties to submit briefs on the constitutionality of the checkpoint. Thereafter, the trial court denied Connor’s motion to suppress.
The trial court continued the trial on February 5, 2018. During the second phase of the trial, the State presented the testimony of Captain Weilhamer as evidence. … Captain Weilhamer then testified about the procedure he had followed when he administered the breath test. …
During the State’s direct examination of Captain Weilhamer, Connor moved to suppress the results of the chemical breath test. In his motion, Connor asserted that the results of that test were inadmissible because the procedures Captain Weilhamer had followed when he administered the test had “not been approved in accordance with the rules” adopted by the Department of Toxicology. The trial court denied Connor’s motion. The State then moved to admit the results of the chemical breath test as evidence, which the trial court admitted over Connor’s objection.
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Connor asserts that the trial court abused its discretion when it admitted into evidence the results of the chemical breath test. …
“‘The admission of chemical breath test results is left to the sound discretion of the trial court and will be reviewed for an abuse of discretion.’” Wolpert v. State, 47 N.E.3d 1246, 1247 (Ind. Ct. App. 2015) …
Indiana Code Section 9-30-6-5(a) (2018) provides that “[t]he director of the state department of toxicology shall adopt rules under IC 4-22-2 concerning . . . [t]he certification of the proper technique for administering a breath test.” The results of a chemical breath test “are not admissible” if the techniques used in the test “have not been approved in accordance with the rules adopted” by the Department of Toxicology. Ind. Code § 9-30-6-5(d)(4); see also Short v. State, 962 N.E.2d 146, 149 (Ind. Ct. App. 2012). …
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Here, when Captain Weilhamer initially administered the breath test to Connor, the machine displayed an error message that read “maximum flow exceeded.” There is no dispute that the Department of Toxicology’s rules neither identify that error message as a possible initial breath test result nor prescribe the technique that a test operator must follow when the instrument displays that message. As such, Connor contends that that error message was an “unanticipated problem” for which there is no direction in the administrative code and, therefore, Captain Weilhamer’s resolution “has neither been approved . . . by the Department of Toxicology nor codified in the Indiana Administrative Code.” … We must agree.
The “[i]ntroduction of a breath test lends the aura of scientific certainty to a prosecution for driving while intoxicated, often sealing the fate of the offender in the mind of the trier of fact.” Bowman v. State, 564 N.E.2d 309, 311 (Ind. Ct. App. 1990) … “Thus, the detailed procedures to be followed,” as adopted by the Department of Toxicology, “reflect a determination that the test should be as accurate and free from uncertainty as possible.”
… Because courts lack the necessary expertise that the Department of Toxicology possesses, our Supreme Court has made clear that “breath test results may be admitted only when the test was conducted in ‘strict compliance’ with” the regulations adopted by the Department of Toxicology. State v. Cioch, 908 N.E.2d 1154, 1156 (Ind. 2009).
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While the State is correct that a test operator must perform an additional breath test if the operator receives any of the listed six error messages, the actual steps that a test operator must take when administering the second test vary based on the specific message received. …
In other words, contrary to the State’s assertion, there is no single protocol for a test operator to follow when administering an additional breath test after having received an error message. …
In sum, the evidence does not show that the technique Captain Weilhamer used to administer the second breath test to Connor was an authorized technique that produced an accurate test result. … Because the technique he used had not been approved in accordance with a rule promulgated by the Department of Toxicology, as a matter of law the results of the breath test were not admissible. …
Thus, we hold that the trial court erred when it admitted the results of the breath test as evidence because Captain Weilhamer had administered the test using a procedure that had not been approved by the Department of Toxicology. And we hold that the admission of the breath test was not harmless error, as it was the only evidence that the State presented to support his conviction. We therefore reverse Connor’s conviction for operating a motor vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol but less than 0.15 gram of alcohol per 210 liters of the person’s breath.
Reversed.
Bailey, J., and May, J., concur.