Indiana BAC Machine Information

Indiana’s BAC Machine

One of the most common charges we see as criminal defense attorneys is the crime of operating a vehicle while intoxicated.  This many times comes with the charges of Operating a vehicle with a BAC of .08 to .14 or Operating a vehicle with a BAC of .15 or more.  But, where do those BAC results come from?  In Indiana the primary source is a breath test machine.  In today’s blog we take a closer look at the breath test machine history and use in Indiana.

There is an Indiana Administrative Code that regulates and addresses how breathalyzers are operated. This Indiana Code covers who can administer these devices and how to properly do so. If the administrative code is not followed, the results could be dismissed. Understanding Indiana Code 260 IAC 2-1

The only people able to administer such tests are persons employed by a law enforcement academy. They are required to take a training course that includes: (1) Pharmacology and toxicology of ethanol, (2) legal aspects of breath testing for ethanol, (3) the operation, theory and maintenance of breath test equipment, and (4) how to use chemical instruments using known ethanol-water or ethanol-gas industry standards.

Employees seeking to administer these tests must complete the training by passing an exam with competency

Each department that has a breath test machine must certify that machine every 180 days to ensure it is up to date. This is to be done in writing and must be available to any who requests it.

The company who manufactured the BAC DataMaster(the old machine Indiana relied upon for years), National Patent Analytical Systems, INC, has been acquired by Intoximeters, INC, which designs the new and improved machine called the Intox EC/IR II. The Intox EC/IR II is becoming more universal.

The Intox EC/IR is now the primary instrument used in Indiana.  This machine was introduced to the Indiana State Department of Toxicology in March of 2014 and sent over 4,370 officers to train on the new machines. During this same time period ISDT began replacing the DataMaster Breath Test instrument with the new Intox EC/IR II instrument).

According to 260 IAC 2-4-2 the proper way to administer the Intox EC/IR II breath analysis is:

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

The features of the Intox EC II are as follows:

  • Bench top instrument featuring fuel cell integration analysis combined with real time analytical advantages of infrared technology
  • Utilizes advantages of electrochemical sensor and infrared sensor technology. The IR system is capable of monitoring in real time, both alcohol and CO2 in the breath. The electrochemical sensor is utilized to quantify the alcohol concentration in a breath sample.
  • Instrument contains advanced radio frequency interference immunity and detection, automatic accuracy checks and calibrations using internal gas tank or external simulator, self-diagnostic capabilities, a 256 x 32 pixel graphic vacuum fluorescent display
  • Capable of remote diagnostics and centralized data collection using IntoxNet Software
  • Measurement range 0.000 to 0.440 g/210L
  • Intoximeters fuel cell based instruments set the industry standard for accuracy and precision. These precise and linear devices offer consistent output that results in evidentiary grade analysis.
  • Auto sampling of subjects deep lung breath samples.
  • Manual sampling option for subjects who cannot meet the minimum flow and volume requirements of the instrument.
  • The accuracy of any breath alcohol testing instrument should be checked periodically.
  • For the Intoximeters Intox EC/IR II instrument, this is accomplished by running a standard with a known alcohol concentration through the instrument’s sampling system and verifying that the result is within an acceptable tolerance range of the expected value of the standard
  • The margin of acceptability for the Intox EC/IR II is an alcohol standard result within

10% of the target value of the alcohol standard. For example, if the target value for an

alcohol standard is 100 mg%, the margin of acceptability is 90 mg% to 110 mg%

(inclusive). If the target value for an alcohol standard is 82 mg%, the margin of

acceptability is 74 mg% to 90 mg% (inclusive).

While the newer instrument is widely considered more reliable it does still have some shortcomings that may be able to be attacked in an DUI case.  Additionally, many times this instrument is utilized by producing two test results which may help determine whether the subjects BAC was on the way up or on the way down.  This can be important in a DUI investigation as it is required that the State show what your BAC was at the time of operating you vehicle.  If you were still on your way up at the time of the breath test, that may be a good indicator that your BAC at the time of operating the vehicle was significantly lower.

The attorneys at Banks & Brower have handled thousands of drunk driving cases.  If you have been arrested and have questions about your case or your BAC result give us a call 24/7 at 317-870-0019.

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Attorneys Brad Banks and Adam Brower are Indianapolis area litigators that focus their practice in Criminal Defense, Family Law, and Personal Injury.
(317) 870-0019