ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SAMUEL S. SHAPIRO STEVE CARTER
Bloomington, Indiana Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
REID R. SMITH, )
vs. ) No. 07A01-0007-CR-245
STATE OF INDIANA, )
APPEAL FROM THE BROWN CIRCUIT COURT
The Honorable Judith Stewart, Judge
Cause No. 07C01-9809-DF-341
June 13, 2001
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Reid R. Smith was convicted following a jury trial of Operating a
Vehicle While Intoxicated (“OWI”), as a Class A misdemeanor. Smith
stipulated that he had a prior OWI conviction within the past five years,
and the trial court entered a judgment of conviction as a Class D felony.
He appeals, presenting the following restated issues for our review:
1. Whether the trial court abused its discretion when it admitted
evidence of field sobriety tests without a scientific
2. Whether the trial court abused its discretion when it excluded
the results of the portable breath test (“PBT”) administered by
FACTS AND PROCEDURAL HISTORY
On September 20, 1998, at approximately 4:30 a.m., Nashville Police
Officers Easterday and Griggs were dispatched to the scene of a single-car
accident on State Road 46 west of Nashville. Upon their arrival, they
observed Smith’s car sitting in a ditch approximately twenty feet from the
roadway. Although Smith had been driving toward Bloomington, his car was
facing toward Nashville. When Officer Easterday approached Smith, he
noticed a strong odor of alcohol on Smith’s breath. Smith told Officer
Easterday that he had consumed a few “shift drinks” before leaving the
Seasons Lodge where he was employed as a bartender. Record at 151. Brown
County Sheriff Deputies Suding and Hertz also arrived at the scene, and
they noticed that Smith’s breath smelled of alcohol, that his eyes were
bloodshot and glassy, and that he was unsteady in standing and walking.
Smith told Deputy Suding that he had taken a “shot” of alcohol earlier that
Deputy Suding then conducted field sobriety tests, instructing Smith
to stand on one leg, walk along a straight line, count backwards, and count
to four touching his thumb to each finger. Smith failed each of the tests.
Deputy Suding also administered a PBT at the scene, which revealed that
Smith’s blood alcohol content (“BAC”) was .09. Deputy Suding subsequently
transported Smith to the Brown County Sheriff’s Department, where Deputy
Hertz administered a certified chemical breath test. The test results
revealed that Smith had a BAC of .15.
Smith was charged with OWI, as a Class A misdemeanor. A jury found
him guilty as charged. Judgment was entered as a Class D felony. This
DISCUSSION AND DECISION
Standard of Review
The trial court has broad discretion in ruling on the admissibility of
evidence. Small v. State, 632 N.E.2d 779, 782 (Ind. Ct. App. 1994), trans.
denied. We will disturb its ruling only upon a showing of abuse of that
discretion. Id. An abuse of discretion may occur if the trial court’s
decision is clearly against the logic and effect of the facts and
circumstances before the court, or if the court has misinterpreted the law.
Baxter v. State, 734 N.E.2d 642, 645 (Ind. Ct. App. 2000).
Issue One: Field Sobriety Tests
Smith first contends that the trial court abused its discretion when
it admitted into evidence Deputy Suding’s testimony regarding the field
sobriety tests. Specifically, Smith maintains that the State failed to
demonstrate a scientific basis for the proposition that field sobriety
tests are reliable indicators of intoxication.
Before the results of scientific tests are admissible, the proponent
of the evidence must lay a proper foundation establishing the reliability
of the procedure used. Marlatt v. State, 715 N.E.2d 1001, 1002 (Ind. Ct.
App. 1999). “Inherent in any reliability analysis is the understanding
that, as the scientific principles become more advanced and complex, the
foundation required to establish reliability will necessarily become more
advanced and complex as well.” McGrew v. State, 682 N.E.2d 1289, 1292
(Ind. 1997). The converse of that rule is also true. See id.
Indiana appellate courts have not previously considered the extent to
which field sobriety test results are subject to foundational requirements
for admission as evidence. Our counterparts on the Illinois Appellate
Court have commented on this very issue and held that “the ‘walk the line,’
‘one leg stand,’ and ‘finger to nose,’ [tests] are not so abstruse as to
require a foundation other than the experience of the officer administering
them.” People v. Sides, 556 N.E.2d 778, 779 (Ill. App. 1990). We agree
that the investigating officer’s training and experience is the only
evidentiary foundation required for the admission of field sobriety tests.
In Charley v. State, 651 N.E.2d 300 (Ind. Ct. App. 1995), we addressed
an analogous issue, namely, whether a scientific foundation was required to
admit a police officer’s testimony regarding a distance measurement. We
determined that such testimony was “less scientific” than testimony
regarding a breathalyzer test and concluded that:
Because there are no statutory requirements regarding the method of
measurement or the operation of a measurement device, and because
there is no complex scientific process necessary to obtain a
measurement of distance . . . , we reject Charley’s contention that
the State was required to offer expert testimony regarding the
operation or accuracy of the measuring device used in this case.
Moreover, we determine that the State is only required to show that
the measuring device was accurate and was operated correctly in order
to allow the admission of the distance as evidence.
Id. at 303 (citations omitted); see also McGrew, 682 N.E.2d at 1292 (noting
that comparison of hair follicles based upon “a person’s observations under
a microscope” was not a matter of “scientific principles” under Indiana
Evidence Rule 702(b)).
Here, likewise, the field sobriety tests at issue do not involve any
complex scientific process or principles. The test results are reported as
an officer’s observations about a defendant’s ability to perform simple
tasks. And there are no statutory requirements for conducting field
sobriety tests. Accordingly, we conclude that the only evidentiary
foundation required for the admission of field sobriety test results is
that the officer through whom the evidence is offered establish his
training and experience in administering such tests. See, e.g., Sides,
556 N.E.2d at 779. Thus, the trial court did not err when it denied
Smith’s motion to exclude testimony about the field sobriety tests and the
State did not demonstrate a scientific foundation for the tests as reliable
indicators of intoxication.
Issue Two: Admissibility of Breath Test Results
Smith next argues that the trial court abused its discretion when it
excluded the results of the PBT administered by police at the scene. We
Machine breath test results are hearsay. Mullins v. State, 646 N.E.2d
40, 48 (Ind. 1995). For the results of a breath test to be admissible, the
test operator, test equipment, chemicals used in the test, and the
techniques used in the test must have been approved by the Department of
Toxicology. Ind. Code § 9-30-6-5(d); Thurman v. State, 661 N.E.2d 900, 902
(Ind. Ct. App. 1996). As the party offering the PBT results, Smith bore
the burden of laying the foundation for admitting those results into
evidence. See Thurman, 661 N.E.2d at 902. Because Smith offered no
evidence to demonstrate that the PBT device has been approved by the
Department of Toxicology, the results of that test were inadmissible at
trial. See State v. Johnson, 503 N.E.2d 431, 433 (Ind. Ct. App. 1987)
(noting that results of PBT not approved by Department of Toxicology
inadmissible at trial), trans. denied. The trial court did not abuse its
discretion when it excluded the PBT results at Smith’s trial.
DARDEN, J., and BARNES, J., concur.
 Pursuant to our partial grant of the State’s motion to dismiss
Smith’s appeal, we do not address issues concerning Smith’s vacated
conviction for Operating a Vehicle with a Blood Alcohol Content of .10 or
 We do not decide what foundation is required for testimony
regarding the horizontal gaze nystagmus (“HGN”) test, as Deputy Suding did
not administer that test to Smith.
 Here, the record shows that the State failed to elicit any
testimony from Deputy Suding regarding either his training or experience in
administering field sobriety tests. But Smith made no objection that the
State did not lay a proper foundation for Suding’s testimony or that Suding
was not competent to testify that Smith had failed the tests. As such, the
issue is waived. See Tardy v. State, 728 N.E.2d 904, 909 (Ind. Ct. App.
2000) (noting a “specific and timely objection must be made in order to
preserve a claim of error in the admission or exclusion of evidence for