Bailey, J.
Bryan Priest (“Priest”) was charged with operating a commercial motor vehicle with an alcohol concentration equivalent (“ACE”) of 0.04 but less than 0.08, a Class C infraction. Pursuant to Indiana Appellate Rule 14(B), Priest brings this discretionary interlocutory appeal of the trial court’s order denying his motion to suppress evidence of his ACE. The only issue he raises on appeal is whether the trial court’s decision to admit the evidence was erroneous. We hold that it was, and we reverse.
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Priest alleged in his motion to suppress evidence that the “breath-test results” were inadmissible hearsay…Our Supreme Court stated in Mullins v. State that “[b]reath-test results as shown by a printout are hearsay” and therefore inadmissible unless they fall within one of the statutory or judicial exceptions to the hearsay rule. 646 N.E.2d 40, 48 (Ind. 1995). When the defense objects to the admission of breath-test results on the ground of hearsay, the burden shifts to the State “to fit the breath-test results into a judicially or statutorily created exception to the general prohibition against the admission of hearsay.” Id. at 48. The Mullins Court held that the “BAC Datamaster” printout of an “evidence ticket” that was at issue in that case, while hearsay, was nevertheless admissible because it fell within a statutory exception to the hearsay rule. Id. at 42.
Here, the State admits that none of the statutory exceptions to the hearsay rule apply. However, the State argues that no such exception is required because the challenged evidence is non-testimonial, non-hearsay. In support, the State points to Cranston v. State in which a panel of this Court held that a mechanically generated or computerized breath-test result is hearsay only if it incorporates “a certain degree of human input and/or interpretation.” 936 N.E.2d 342, 344 (Ind. Ct. App. 2010). Cranston involved a “Datamaster printed ticket” showing the results of a breath analysis that was very similar in form to the “evidence ticket” at issue in Mullins. However, the Cranston Court held that the “Datamaster evidence ticket” was non-testimonial, non-hearsay because, “while [it] require[ed] administrative input from the test operator and a breath sample from the test subject, [it] calculates and prints a subject’s blood alcohol concentration through a mechanical process involving no material human intervention.” Id.
On appeal, Priest contends that Cranston is not good law because it conflicts with the specific holding of our Supreme Court in Mullins that the Datamaster evidence ticket is hearsay. The State, on the other hand, asserts that Mullins is no longer good law because the Evidence Rules regarding hearsay have been amended since the date of that decision.
However, we need not resolve the alleged conflict between Mullins and Cranston because the case before us does not involve the same evidence that was at issue in those cases. Both of those cases related to evidence in the form of a printout from a “B.A.C. Datamaster” breath test, which Mullins found admissible under a statutory exception to hearsay, 646 N.E.2d at 42, and Cranston found admissible as non-hearsay, 936 N.E.2d at 342. But here, although the trial court and parties’ counsel seemed to assume a breath-test result was in the record, the record actually contains no evidence of any breath test at all. The only evidence in the record related to Priest’s ACE or B.A.C. is the traffic citation itself, and that document does not state who was tested, what test was used, who did the testing, and what the test results were, all of which were in evidence in both Mullins and Cranston. Id. Rather, the traffic ticket issued to Priest—which was completed and signed by an Indiana State Police Officer who did not appear at the suppression hearing or otherwise testify—stated only: “B.A.C. 0.042.” App. at 42. That statement, alone, is clearly hearsay; it is an out-of-court statement offered to prove the truth of the matter asserted. See Evid. R. 801.
At the start of the February 10, 2021, hearing on the motion to suppress, the trial judge stated, “This is a hearing only on argument as to whether the breath test ticket is admissible, or breath test, I don’t even know if there’s a ticket; so I don’t know what type of breath test it is.” Tr. at 4. Yet, the State presented no evidence that would prove what type of breath test was at issue. While the prosecutor referred in his argument at the February 10 hearing to “the Intoxilyzer ticket,” the “BAC Datamaster,” a “certification,” and the “Intoxilyzer ECIR2 instrument,” Tr. at 5, no such evidence was offered or admitted into evidence, 5 and the prosecutor’s statements themselves are, obviously, not evidence.
Thus, the trial court’s denial of Priest’s motion to suppress the evidence of his ACE was not supported by substantial evidence of probative value; rather, the only evidence the State presented—the bald statement in the traffic citation that Priest’s “B.A.C.” was “0.042”—was inadmissible hearsay. App. at 42.
Reversed.
Mathias, J., and Altice, J., concur.