A Look at Indiana Code 260 IAC 2-1 – Breath Test Machines

Indiana Administrative Code 260 IAC 2-1 – Breath Test Operators & Instruments

Everyone on earth, it seems, has heard of a “breathalyzer” test in every single run of the mill Driving Under the Influence (hereafter “DUI”) and/or Operating a Vehicle While Intoxicated (hereinafter “OVWI”) case. But, did you know there is an entire administrative code section drafted by the Indiana legislature to address how breathalyzers are to be certified, who can administer them, and how they are to be administered? And, did you know that if the administrative code isn’t followed, the results of the breathalyzer may actually be thrown out at trial, and thus the entire case brought by the state might be in jeopardy? As such, it’s important that we take a quick look at the Indiana Code 260 IAC 2-1.
Who can Administer Certified Breath Tests?

260 IAC 2-2-1 – only persons employed by a law enforced academy may be certified to perform a chemical test!

How are Administrators of Breath Tests Trained?

260 IAC 2-2-2 – the training course must include training for the following topics: (1) pharmacology and toxicology of ethanol, (2) legal aspects of breath testing for ethanol, (3) the operation, theory, and maintenance of breath test equipment, (4) how to use chemical instruments using known ethanol-water or ethanol-gas industry standards

In order to administer a test, they must complete the training, pass the exam, and show “competence” in the administration of chemical tests.

How does Certification of Operators Work?

260 IAC 2-2-3 – administrators of chemical tests must maintain employment at a law enforcement agency, complete the training, and be certified every two (2) years (with some exception) – if they fail, they have within 30 days of their two year expiration to pass. The certification must be in writing and contain the names of those officers in compliance.

Once certified, the operator can administer tests and make “replacements and adjustments to breath test instruments not related to calibration.”

How does the Inspection of the Machine Work?

260 IAC 2-3-3 – each department which houses a breath test machine must certify that machine, insuring it is within industry standards, at least once every 180 days. That inspection must be in writing, and must be made available to all those that request it.

What is the Approved Method for BAC DataMaster Breath Test?

260 IAC -2-4-1:

STEP ONE: The person to be tested must: (A) have had nothing to eat or drink; (B) not have put any foreign substance into his or her mouth or respiratory tract; and (C) not smoke; within fifteen (15) minutes before the time a breath sample is taken.

STEP TWO: The green LED on the instrument display must be glowing.

STEP THREE: Depress the run button, enter the password, and insert the evidence ticket.

STEP FOUR: Follow the displayed request for information, and enter the information by the keyboard.

STEP FIVE: When “please blow” appears on the display, place a new mouthpiece in the breath tube. Instruct the subject to deliver a breath sample.

STEP SIX: When the printer stops, remove the instrument report from the printer, and check it for the numerical value for the subject’s breath ethanol concentration and correct date and time. (b) If any of the following messages are printed on the instrument report, proceed as follows: (1) If “subject sample interferent” is printed on the instrument report, perform an additional breath test beginning with STEP ONE and proceeding through STEP SIX. If “subjects ample interferent” is printed on the instrument report of this additional breath test:

(A) obtain an alternate chemical test for ethanol; or

(B) perform a breath test on another breath test instrument.

(2) If “subject sample invalid” is printed on the instrument report, perform an additional breath test beginning with STEP ONE and proceeding through STEP SIX. If “subject sample invalid” is printed on the instrument report of this additional breath test:

(A) obtain an alternate chemical test for ethanol; or

(B) perform a breath test on another breath test instrument.

(3) If “radio interference” is printed on the instrument report, locate and remove the source of the radio interference and perform an additional breath test beginning with STEP TWO and proceeding through STEP SIX. If “radio interference” is printed on the instrument report of this additional breath test:

(A) obtain an alternate chemical test for ethanol; or Indiana Administrative Code Page 4 BREATH TEST OPERATORS AND INSTRUMENTS

(B) perform a breath test on another breath test instrument.

(4) If “subject sample incomplete” is printed on the instrument report, perform an additional breath test beginning with STEP TWO and proceeding through STEP SIX. If “subject sample incomplete” is printed on the instrument report of this additional breath test:

(A) obtain an alternate chemical test for ethanol; or

(B) perform a breath test on another breath test instrument. If the “subject sample incomplete” was caused by the lack of cooperation of the subject, the breath test operator should record that the test was refused

What is the Approved Method for Intox EC/IR II breath analysis?

260 IAC 2-4-2

STEP ONE: The person to be tested must: (A) have had nothing to eat or drink; (B) not have put any foreign substance into his or her mouth or respiratory tract; and (C) not smoke; within fifteen (15) minutes before the time the first breath sample is taken or at any time from the taking of the first breath sample until after the taking of the final breath sample.

STEP TWO: Verify that the instrument is in ready mode, as indicated by the instrument display.

STEP THREE: Press “Enter” key to start subject test.

STEP FOUR: Insert identification card into the barcode reader, or press the “Enter” key and use the keyboard to enter the breath test operator information requested by the instrument display.

STEP FIVE: When requested by the instrument display, enter the beginning date and time of the fifteen (15) minute period described in STEP ONE.

STEP SIX: When requested by the instrument display, select “Y” or “N” to indicate whether the breath test operator is the officer with control of the subject during the fifteen (15) minute period described in STEP ONE.

STEP SEVEN: If “N” is selected in STEP SIX, when requested by the instrument display, enter the information of the officer with control of the subject during the fifteen (15) minute period described in STEP ONE.

STEP EIGHT: Enter incident information requested by the instrument display.

STEP NINE: Enter subject information by: (A) inserting the subject’s driver/operator license or identification card into the barcode reader; or (B) pressing the “Enter” key and using the keyboard to enter the available subject information requested by the instrument display.

STEP TEN: When “Please blow” appears on the instrument display, place a new mouthpiece in the breath tube. Instruct the subject to deliver a breath sample. Remove mouthpiece when prompted by the instrument display and discard.

STEP ELEVEN: When “Please blow” appears again on the instrument display, place a new mouthpiece in the breath tube. Instruct the subject to deliver a breath sample. Remove mouthpiece when prompted by the instrument display and discard.

STEP TWELVE: Print the instrument report and remove it from the printer; check the instrument report for the numerical value of the subject’s breath ethanol concentration and the correct date and time and sign the instrument report where indicated. (b) If any of the following messages appear on the instrument display or report, proceed as follows: (1) If “Please blow” appears on the instrument display after completion of STEPS ONE through ELEVEN, perform an additional breath test, beginning with STEP ELEVEN. If “No 0.020 Agreement” is printed on the instrument report after this additional breath test:

(A) perform an additional breath test, beginning with STEP TWO and proceeding through STEP TWELVE; Indiana Administrative Code Page 5 BREATH TEST OPERATORS AND INSTRUMENTS

(B) obtain an alternate chemical test for ethanol; or

(C) perform a breath test on another breath test instrument.

(2) If “Interfering Substance” is printed on the instrument report, perform an additional breath test, beginning with STEP ONE and proceeding through STEP TWELVE. If “Interfering Substance” is printed on the instrument report after this additional breath test:

(A) obtain an alternate chemical test for ethanol;

(B) perform a breath test on another breath test instrument; or

(C) if a numerical value for the subject’s breath ethanol concentration is printed on any instrument report, check the instrument report for the correct date and time and sign the instrument report where indicated.

(3) If “RFI Detected” is printed on the instrument report, locate and remove the source of the interference and perform an additional breath test, beginning with STEP TWO and proceeding through STEP TWELVE. If “RFI Detected” is printed on the instrument report after this additional breath test:

(A) obtain an alternate chemical test for ethanol;

(B) perform a breath test on another breath test instrument; or

(C) if a numerical value for the subject’s breath ethanol concentration is printed on any instrument report, check the instrument report for the correct date and time and sign the instrument report where indicated.

(4) If “Mouth Alcohol” is printed on the instrument report, perform an additional breath test, beginning with STEP ONE and proceeding through STEP TWELVE. If “Mouth Alcohol” is printed on the instrument report after this additional breath test:

(A) obtain an alternate chemical test for ethanol;

(B) perform a breath test on another breath test instrument; or

(C) if a numerical value for the subject’s breath ethanol concentration is printed on any instrument report, check the instrument report for the correct date and time and sign the instrument report where indicated.

(5) If “Insufficient Sample” or “Time Out” is printed on the instrument report, perform an additional breath test, beginning with STEP TWO and proceeding through STEP TWELVE. If “Insufficient Sample” or “Time Out” is printed on the instrument report after this additional breath test:

(A) obtain an alternate chemical test for ethanol;

(B) perform a breath test on another breath test instrument; or

(C) if a numerical value for the subject’s breath ethanol concentration is printed on any instrument report, check the instrument report for the correct date and time and sign the instrument report where indicated. If an “Insufficient Sample” or “Time Out” message is caused by the lack of cooperation of the subject, the breath test operator should record that the test was refused and, if a numerical value for the subject’s breath ethanol concentration is printed on any instrument report, check the instrument report for the correct date and time and sign the instrument report where indicated

As anyone can see, the procedure for administering a breath test is a very detailed procedure, and, the statute is incredibly clear as to who can administer them and how often the operator and the machine must be certified. So, if you or a loved one are facing a DUI or OVWI, make sure you hire an attorney who has experience making sure that breath test results are accurate and admissible as evidence in a court of law. Both Adam Brower and Brad Banks both were prosecutors in the DUI/OVWI litigation unit at the Marion County Prosecutor’s Office. Having tried hundreds of DUI/OVWI’s, they have the experience to help you through your criminal case. Give us a call 24/7/365 at 317.870.0019 or email us at info@banksbrower.com.