Kopas v. State
| Decision Date | 02 October 1998 |
| Docket Number | No. 56A04-9802-CR-106,56A04-9802-CR-106 |
| Parties | Patrick KOPAS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Defendant-Appellant Patrick Kopas ("Kopas") appeals following his convictions for operating a vehicle with a blood alcohol content of .10% or above, a Class C misdemeanor, and operating a vehicle with a blood alcohol content of .10% or above while having a prior conviction of operating while intoxicated in the last five years, a Class D felony.
We affirm in part, reverse in part and remand.
Two issues are raised for our review, which we restate as:
1. Whether the State presented sufficient evidence to support Kopas' conviction for operating a vehicle with a BAC of .10% or above.
2. Whether the trial court erred in ordering Kopas to pay $1,000.00 to the Newton County Prosecuting Attorney Council ("NCPAC"). 1
On July 19, 1996, Indiana State Police Trooper Mark Day observed a vehicle, driven by Kopas, weaving, going into another lane without signaling, and veering off the right side of the road. Trooper Day stopped the vehicle for unsafe movement. When he approached Kopas, Trooper Day smelled an odor of alcohol and noticed that Kopas' speech was slurred. Day also observed two open beer cans wedged in the front seat of the car, and a six pack ring with only one beer remaining on it. Kopas told Day that he had had three or four beers while at a racing event and "a few more" on the way home. Day also noticed that Kopas was walking unsteadily. Believing from these observations that Kopas was intoxicated, Day drove Kopas to the Newton County Jail. There Day, a certified breath test operator, used a BAC Datamaster to administer a breath test, which showed that Kopas had a blood alcohol content of .11%.
Following these events, Kopas was convicted of operating a vehicle with a blood alcohol content of .10% or above, and of operating a vehicle with a blood alcohol content of .10% or above while having a prior conviction of operating while intoxicated in the last five years. The sentencing order included in part costs of $1,000.00, payable by Kopas to the NCPAC. Kopas now challenges both the sufficiency of evidence on the issue of his blood alcohol content and the imposition of fees payable to the NCPAC.
Kopas first contends that the State failed to present sufficient evidence to support his conviction for operating a vehicle with a blood alcohol content of .10% or above. Specifically, Kopas argues that the State failed to present substantial, probative evidence that his blood alcohol content was .10% or above. We disagree.
When reviewing a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of the witnesses, and we consider only the evidence most favorable to the verdict along with all reasonable inferences to be drawn therefrom. Davenport v. State, 689 N.E.2d 1226, 1230 (Ind.1997). If substantial evidence of probative value exists from which the trier of fact could find guilt beyond a reasonable doubt, we will affirm. Newman v. State, 677 N.E.2d 590, 593 (Ind.Ct.App.1997).
Indiana Code § 9-30-5-1(a) provides that any person who "operates a vehicle with at least ten-hundredths percent (0.10%) by weight of alcohol in the person's blood commits a Class C misdemeanor." In the case before us, Trooper Day testified that he stopped Kopas' vehicle after Day had observed Kopas weaving, going into another lane without signaling, and driving off the right side of the road. Day further testified that he smelled alcohol on Kopas' breath, saw in Kopas' car two open beer cans and a six pack ring with only one beer left on it, and observed that Kopas' speech was slurred and his balance was unsteady. In addition, Day testified that Kopas stated that he had had three or four beers at the races and that he had had a few more on the way home. Day testified that he transported Kopas to the Newton County Jail and used a BAC Datamaster to administer a breath test, following prescribed procedures. Less than an hour after Kopas had been stopped by Day, the test results showed that his blood alcohol content was .11%. We conclude that this evidence supports Kopas' conviction for operating a vehicle with a blood alcohol content of .10% or above. 2
Kopas argues, however, that testimony regarding "partition ratios", including the State's failure to present evidence establishing Kopas' individual partition ratio, as well as testimony regarding ascending and descending levels of alcohol in the blood renders the above considerations insufficient. Kopas provides no authority for this argument, but rather invites us to reweigh the evidence. This we are unwilling to do. It is the function of the trier of fact to resolve conflicts in the testimony and to determine the weight of the evidence and the credibility of the witnesses, McLean v. State, 638 N.E.2d 1344, 1348 (Ind.Ct.App.1994), and we will not usurp their authority here.
Kopas also challenges as improper the portion of the trial court's sentencing order which requires him to pay $1,000.00 to the NCPAC. We agree.
IND.CODE §...
To continue reading
Request your trial
-
Mathis v. State
...fees that may be collected from a defendant in a criminal action resulting in a felony or misdemeanor conviction. Kopas v. State, 699 N.E.2d 1193, 1195 (Ind.Ct.App.1998). Specifically, subsection (b) of that statute In addition to the criminal costs fee collected under this section, the cle......
-
Green v. State
...to restitution under Indiana Code Section 35-50-5-3(a). This is a question of law that we review de novo. See Kopas v. State, 699 N.E.2d 1193, 1195 (Ind.Ct.App.1998) (applying de novo review where trial courts order of costs payable to Newton County Prosecuting Attorneys Council was not aut......
-
Allman v. State, 17A04-9908-CR-381.
...a challenge to the sufficiency of the evidence, we consider only the evidence most favorable to the verdict. Kopas v. State, 699 N.E.2d 1193, 1194 (Ind. Ct.App.1998). We neither reweigh the evidence nor judge the credibility of the witnesses. Id. If there is substantial evidence of probativ......