Today's NW Indiana Times reports here: "Appellate court says breath test can be used against Lake Station man." The reference is to the case of State v. Molnar (2/13/04), briefly summarized here on 2/13/04 in the Indiana Law Blog. Some quotes:
The accused in his case, Joseph Molnar of Lake Station, was chewing tobacco when he was stopped by police Feb. 20, 2003. He argued that although he spit out the tobacco prior to 20 minutes before the breath test, particles of the tobacco remained in his mouth, thus invalidating the test results. His blood-alcohol concentration was found to be 0.12, which exceeds the 0.08 standard of intoxication in Indiana.Posted by Marcia Oddi at March 8, 2004 03:36 PMThe Indiana Court of Appeals reversed [Porter Superior Court Judge David] Chidester's ruling, saying he failed to properly interpret the breath test guidelines.
The guidelines say in part the accused "must not have put any foreign substance in his or her mouth ... within 20 minutes to the time a breath sample is taken," wrote the court.
"There is no dispute here that Molnar did not place any foreign substance in his mouth within 20 minutes of the test," said the court. "The regulation makes no provision for residue remaining from matter removed from the subject's mouth before the 20-minute period begins and does not invalidate the breath test results due to residue remaining in a subject's mouth."