APPEAL FROM THE LAPORTE SUPERIOR COURT. The Honorable Jennifer L. Koethe, Judge. Cause No. 46D03-1212-CM-3759.
ATTORNEYS FOR APPELLANT: JOHN L. TOMPKINS, L. SCOTT PEJIC, Brown Tompkins Lory & Mastrian, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, JODI KATHRYN STEIN, Deputy Attorney General, Indianapolis, Indiana.
BROWN, Judge. ROBB, J., and BARNES, J., concur.
In this interlocutory appeal, Tanner Piotrowski challenges the trial court's denial of his Motion to Exclude Any Evidence or Testimony from the State Department of Toxicology. Piotrowski raises one issue, which we revise and restate as whether the court erred in denying his request to exclude evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
On December 12, 2012, the State charged Piotrowski with operating while intoxicated in a manner that endangered a person as a class A misdemeanor, operating while intoxicated with .15% or more blood alcohol content as a class A misdemeanor, and operating while intoxicated as a class C misdemeanor. On March 1, 2013, Piotrowski filed a Motion to Exclude Any Evidence or Testimony from the State Department of Toxicology (the " Motion to Exclude" ) stating that the Indiana University School of Medicine State Department of Toxicology, governed under Title 21 of the Indiana Code (the " Title 21 Department" ), was legally terminated by Pub. L. No. 158-2011, effective July 1, 2011, and codified at Ind. Code § § 10-20-2, that Ind. Code § 10-20-2-7 provided for a transition from the Title 21 Department to the new State Department of Toxicology (the " Title 10 Department" ), that the rules promulgated by the Title 21 Department did not apply to the Title 10 Department as of July 1, 2012, when the transition period codified at Ind. Code § 10-20-2-7(d) expired, and that " [i]n the absence of any rule making authority and in the absence
of any new rules adopted by the Title 10 Department, no existing regulations or laws relating to procedures for the training of officers, or for certification or adoption of breath test machines are effective under the Title 10 Department." Appellant's Appendix at 56. The Motion to Exclude concludes that " [a]s a result, any certificates of training and/or maintenance or calibration or certification of machines dated after July 1, 2012 have been issued without legal authority by the Title 10 Department and should not be considered as evidence in this cause."
The State filed its response to the Motion to Exclude on April 9, 2013, and on April 26, 2013, Piotrowski filed a Supplement to the motion. That same day, the State filed its Supplemental Response to Piotrowski's Motion to Exclude, and the court held a hearing on the motion. On May 14, 2013, the court issued an order which found as follows:
1. [Piotrowski] has moved to exclude any evidence generated by the State Department of Toxicology arguing that there are no existing regulations in effect relating to the procedures for training of officers, or for the certification or adoption of breath test machines. [He] further argues that no rules or regulations regarding these procedures have been adopted since the transition period expired on July 1, 2012 from the department of toxicology of the Indiana University School of Medicine to the State Department of Toxicology in accordance with Indiana Code 10-20-2-7 .
2. The Court DENIES [Piotrowski's] Motion to Exclude Evidence. The Court finds that the legislature changed the operating or controlling authority of the department of toxicology of the Indiana University School of Medicine to the State Department of Toxicology in accordance with Indiana Code 10-20-2 . The Court further finds that the current State Department of Toxicology is operating in accordance with the 260 IAC Rules previously adopted by the department of toxicology of the Indiana University School of Medicine in 2007. 'Where the legislature intendment requires that prior legislation remain in force until the administrative body has enacted substitute regulations, a repeal [of the old rules and regulations] takes place only at the time the [new] administrative regulations go into effect.' Van Allen v. State,
467 N.E.2d 1210, 1215 (Ind. Ct. Ap. 2nd Dist. 1984) . . . . These rules remain in full force and effect and only expire when another emergency rule or permanent rule amends, repeals or otherwise supersedes the rule. Indiana Code 9-30-6-5.5(b) .
Id. at 17. On June 12, 2013, Piotrowski filed a motion to certify interlocutory order pursuant to Indiana Trial Rule 14(B) which the court granted the same day. He filed a petition to entertain jurisdiction in this court on June 14, 2013, which this court granted on July 19, 2013. The trial court thereafter issued a stay of all proceedings pending the resolution of this interlocutory appeal.
ISSUE / STANDARD OF REVIEW
The issue is whether the trial court erred in denying Piotrowski's request to exclude evidence. Generally, when reviewing a trial court's denial of a defendant's motion to suppress or exclude evidence, as in sufficiency of evidence analysis generally, we construe conflicting evidence in the light most favorable to the ruling.
Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013). " In the particular context
of a motion to suppress, however, we will also consider any substantial and uncontested evidence favorable ...