Baran v. State

• Decision Date: 08 November 1993
• Docket Number: No. 49A05-9209-CR-311,49A05-9209-CR-311
• Parties: James S. BARAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1326

622 N.E.2d 1326

James S. BARAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9209-CR-311.

Court of Appeals of Indiana Fifth District.

Nov. 8, 1993.

J.J. Paul, III, Ober Symmes Cardwell Voyles & Zahn, Indianapolis, for appellant-defendant.

Pamela Carter, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Office Of Atty. Gen., Indianapolis, for appellee-plaintiff.

BARTEAU, Judge.

James Baran appeals his conviction of operating a vehicle with ten-hundredths percent (.10%) or more of alcohol by weight in the blood. Because we reverse, we address only the issue whether the evidence was sufficient to support the conviction.

On February 20, 1991, State Trooper David Henson observed the truck being driven by Baran weave from lane to lane. Henson pulled Baran over and subsequently took Baran to the police station for a BAC breath test. The result of the test was recorded as ".11." Baran was then charged with two counts: 1. operating a vehicle while intoxicated, and 2. operating a vehicle with ten-hundredths percent (.10%) or more of alcohol by weight in the blood.

After a bench trial, the trial court found Baran not guilty of Count I and entered a judgment of conviction on Count II. The only evidence introduced at trial to prove that Baran's blood alcohol content by weight was .10% or more was the printout from the Intoxilyzer 5000 machine used to give Baran the breath test. That form reported a "BAC Value" of ".11."

Baran argues that this evidence is not sufficient to support the conviction because there is no evidence that ".11" represented the blood alcohol content as a percentage by weight as required by Ind.Code 9-11-2-1 (recodified as I.C. 9-30-5-1; P.L.2-1991, Sec. 18). That statute provided: "A person who operates a vehicle with ten hundredths percent (.10%), or more by weight of alcohol in his blood commits a Class C misdemeanor." Only evidence of the amount of alcohol by weight in the person's blood can support a conviction of I.C. 9-11-2-1 (now I.C. 9-30-5-1). Melton v. State (1992), Ind.App., 597 N.E.2d 359, 361. Further, the statute provides that the evidence must show that the amount by weight is at least .10 percent. Thus, evidence of the amount of alcohol must be expressed as a percentage by weight. The State failed to produce such evidence here.

As stated above, the only evidence offered to prove Baran had a blood alcohol content of at least .10 percent by weight is the printout from the intoxilyzer machine showing that the BAC result was ".11." This does not state that the measurement is a percentage, nor does it state that it is a measurement by weight. The State did not offer testimony explaining whether the machine printout recorded the blood alcohol content test result as a percentage by weight. While the State urges, given the Intoxilyzer 5000's common usage among law enforcement officers, that it be judicially noticed that the machine printout gives the result as a percentage by weight, we are not persuaded. In fact, the State's own witness, the State Trooper who administered the test to Baran, did not know whether the result was recorded as a volume measurement or a weight measurement:

Q. Trooper Henson is that a volume measurement or a weight measurement?

A. It's not listed. It's listed as .11 Q. I'm asking you, is that a measurement of .11 by volume or by weight?

A. I do not know. You'd have to refer to somebody from the Department of Toxicology.

R. 131-132. When the person who administered the test cannot say that the result is given in terms of a percentage by weight, we cannot say that the same information can be judicially noticed. Without this critical evidence, the State did not present sufficient evidence that Baran was operating a vehicle with ten hundredths percent (.10%) or more by weight of alcohol in his blood. ¹ Because the evidence does not support the conviction, we reverse the judgment of the trial court.

REVERSED.

SULLIVAN, J., concurs in result.

RUCKER, J., dissents with opinion.

RUCKER, Judge, dissenting.

I respectfully dissent. In reviewing a claim of sufficiency of the evidence, our standard of review is well settled. We will neither reweigh the evidence nor judge the credibility of witnesses. We examine only the evidence most favorable to the State along with all reasonable inferences to be drawn therefrom and if there is substantial evidence of probative value to support the conviction, it will not be set aside. Litel v. State (1988), Ind., 527 N.E.2d 1114. Where a case is tried to the bench without the intervention of a jury, the trial judge's determination of a factual issue will be set aside only if the nonconflicting evidence supports a result contrary to the judge's determination. Taylor v. State (1988), Ind., 530 N.E.2d 1185.

In this case, the judge determined that the result of the Intoxilyzer 5000 was sufficient to sustain Baran's conviction. The nonconflicting evidence does not support a contrary result and thus Baran's conviction should not be reversed on the grounds relied upon by the majority.

For years law enforcement officers throughout this State have...