FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

J.J. PAUL         STEVE CARTER
Voyles, Zahn, Paul, Hogan & Merriman     Attorney General of Indiana
Indianapolis, Indiana
CHRISTOPHER C.T. STEPHEN
Deputy Attorney General
Indianapolis, Indiana

STEVEN A. FIELDS,       )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 73A01-0306-CR-230
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

Steven Fields appeals his conviction after a bench trial for operating a vehicle with a blood alcohol content greater than .08%, a Class C misdemeanor. We affirm. See footnote

Albright, 632 N.E.2d at 725 (emphasis added).
    In Guy v. State, 805 N.E.2d 835 (Ind. Ct. App. 2004), an officer administered a chemical breath test to the defendant, who had a metal stud (“tongue ring”) in her tongue at the time of the test. The defendant’s test results indicated a .11% blood alcohol concentration, and the officer placed the defendant under arrest for operating while intoxicated. After the trial court denied the defendant’s motion to suppress evidence of the test results, a panel of this court reversed the trial court’s denial because the defendant had a foreign substance (the tongue ring) in her mouth during the breath test. Id. at 837. Relying on Albright, the panel concluded that “the word ‘put’ as it appears in 260 IAC 1.1-4-8(1) means ‘present’ and that a person to be tested must not have had any foreign substance present in his or her mouth within twenty minutes prior to the time a breath sample is taken.” Id. at 838-39.
    In State v. Molnar, 803 N.E.2d 261 (Ind. Ct. App. 2004), an officer stopped a driver for speeding in his vehicle. The officer smelled alcohol and administered sobriety tests. The driver had chewing tobacco (which was finely ground) in his mouth at the time. The officer asked the driver to spit out his chewing tobacco. The driver complied, using his finger to “rake” out the tobacco. The officer then looked inside the driver’s mouth and did not see any tobacco residue. After the twenty-minute observation period, the driver submitted to a chemical breath test, which reported his blood alcohol content as .12%. Id. at 262-63.
The Molnar court agreed with the State’s argument in that case that 260 IAC 1.1-4-8 does not require that a person’s mouth be free from foreign substances; rather, the regulation only requires that a person not place a foreign substance in his mouth up to twenty minutes prior to taking a breath test. Molnar, 803 N.E.2d at 265-66. The Molnar court also stated, however, that the twenty-minute rule “clearly contemplates that a substance ‘put’ in the mouth will be removed more than twenty minutes before the test is administered; what we do not conclude is that the rule requires all possible residue from the substance to be removed as well.” Id. at 266 n.1 (emphasis added). The Molnar court additionally stated the following: “This is not to say that a defendant would be precluded from presenting evidence at trial that a test result was actually skewed by residue remaining in his or her mouth. Here, no such evidence was presented.” Id. at 266 n.2. Because the defendant had removed the chewing tobacco from his mouth at least twenty minutes prior to taking the chemical breath test, the panel reversed the trial court’s decision to suppress evidence of the test results. Id. at 267.
We respectfully disagree with Molnar’s interpretation of 260 IAC 1.1-4-8(1) that the regulation only requires that a person not place any foreign substance in his mouth within the twenty-minute deprivation period. In light of our supreme court’s holding in Albright, we conclude that 260 IAC 1.1-4-8(1) requires that a person must not have had any foreign substance in his mouth within twenty minutes prior to submitting to a chemical breath test. See footnote Nevertheless, we do accept Molnar’s reasoning as to why the twenty-minute deprivation period is important.
[T]he obvious reason for the twenty-minute rule is to prevent a foreign substance from affecting the breath test results. The Department of Toxicology determined that twenty minutes is a long enough period to sufficiently mitigate the contaminating effect of anything contained in a subject’s mouth once the matter is removed, including any residue remaining in the mouth. Thus, we must rely on the expertise of the Department and trust that it decided twenty minutes is a sufficient waiting period to protect the integrity and accuracy of the test results. To hold otherwise would be to read a new meaning into the regulation and to essentially mandate that all subjects who have something in their mouths and are asked to remove the matter in preparation for a breath test to be administered rinse their mouths to remove any residue that might remain. This is not contemplated by the regulation and must not be imposed by judicial construction.

Molnar, 803 N.E.2d at 266-67 (footnotes omitted).

The State presented sufficient evidence to support Fields’s conviction. The evidence most favorable to the judgment showed that Deputy Lacy observed Fields traveling in excess of the posted speed limit. When Deputy Lacy pulled Fields over, Fields smelled of alcohol and had bloodshot eyes. Fields failed three sobriety tests and a PBT that Deputy Lacy administered at the scene. At the station, Deputy Lacy, a certified breath test operator, administered a chemical breath test to Fields on a DataMaster machine that had been inspected and certified by the Department of Toxicology within 180 days of the test. The results of the chemical test indicated that Fields had a blood-alcohol content at .12%. Therefore, the State presented sufficient evidence to show that Fields operated a vehicle with a blood alcohol content greater than .08%.

    Ind. Code § 9-30-6-5(c).