Boothe v. State

• Decision Date: 13 September 1982
• Docket Number: No. 4-182A22,4-182A22
• Citation: 439 N.E.2d 708
• Parties: James BOOTHE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 708

439 N.E.2d 708

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

No. 4-182A22.

Court of Appeals of Indiana,

Fourth District.

Sept. 13, 1982.

Michael E. Hunt, Public Defender, Ruth M. Acheson, Bloomington, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

CONOVER, Judge.

James Boothe (Boothe) appeals his jury conviction for Operating a Vehicle While Intoxicated, a class D felony due to a prior conviction for the same offense. We affirm.

ISSUES ¹

1. Is the State required to place into evidence the approved techniques for the operation of a breathalyzer before the test results are admissible?

2. Must the operation of a vehicle while intoxicated occur on a public highway in order to constitute a violation of Ind.Code 9-4-1-54 (Supp.1981)?

3. Was there sufficient evidence to sustain the verdict?

4. Did the trial court err by admitting into evidence the breathalyzer operator's opinion as to the amount of alcohol necessary to bring a 150 pound person to .20% blood alcohol content?

5. Did the trial court err by admitting into evidence exhibits which included references to prior irrelevant criminal convictions and sentences?

6. In the second stage of the bifurcated proceeding, regarding the existence of a prior conviction, did the trial court err in instructing the jury that it could consider any evidence presented in the first stage, regarding the latest offense?

7. In the second stage of the bifurcated proceeding, did the trial court err by refusing to reinstruct the jury concerning the judging of the law, the credibility of witnesses and weighing of evidence, and the requirement that the verdict be unanimous?

FACTS

The evidence most favorable to the verdict is that on January 9, 1981, at approximately 12:30 a. m., Boothe was seen operating a motor vehicle in a city parking lot in Bloomington. When Officer James Haverstock blocked the lot's exit with his squad car, Boothe and his passenger got out of their vehicle. Boothe's eyes were bloodshot and watery, his response to Haverstock's directions slow and his breath smelled strongly of alcohol. He swayed back and forth when asked to stand upright, had difficulty touching his nose with his forefinger, and was unable to walk a straight line.

Officer Haverstock took Boothe to the Bloomington Police Station and administered a breathalyzer test. The test resulted in a reading of .20% blood alcohol. Boothe was charged with Operating a Vehicle while Intoxicated, a class D felony because he had a prior conviction for the same offense.

At trial, Officer Haverstock testified he was a certified breathalyzer operator, had over 48 hours of training in the operation of the breathalyzer and had performed between 75 and 100 tests. He testified the breathalyzer and chemicals used in Boothe's test were certified by the Department of Toxicology of Indiana University School of Medicine and that he performed the test in accordance with the techniques required by that Department. Copies of documents from the Department of Toxicology certifying Officer Haverstock as a qualified breathalyzer operator and the chemicals and equipment used were admitted into evidence.

The jury found Boothe guilty of Operating a Vehicle While Intoxicated. In the second stage of the bifurcated proceeding, the jury found Boothe had been previously convicted of Operating a Vehicle While Intoxicated. Boothe was sentenced to 2 years in prison, with all but 6 months suspended, a $2,000 fine, and a suspension of all driving privileges for 2 years. ²

Boothe appeals his conviction.

DISCUSSION AND DECISION

I. ADMISSION OF APPROVED TECHNIQUES

Boothe argues there was an insufficient foundation to admit the results of the breathalyzer test and the video tape recording made of the test because no certified copy of the document outlining the required procedures for a breathalyzer test as approved by the Department of Toxicology at Indiana University School of Medicine was offered as evidence by the State. We agree.

In order for the results of a breathalyzer test to be admissible, three foundational elements must be proven:

"1. The test was administered by an operator certified by the department of toxicology;

2. The equipment used in the test was inspected and approved by the department of toxicology, and

3. The operator used techniques approved by the department of toxicology." ³

Klebs v. State, (1974) 159 Ind.App. 180, 183, 305 N.E.2d 781, 783, cert. denied, (1974) 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107. See also Denman v. State, (1982) Ind.App., 432 N.E.2d 426; Hartman v. State, (1980) Ind.App., 401 N.E.2d 723.

At trial, the officer testified:

Mr. Morrison: Officer Haverstock, is the routine procedure that you use in administering the test the same ones that were given you by the Department of Toxicology in their instructions and (indiscernible)?

....

Officer Haverstock: Yes, Those were the procedures that I followed.

Boothe argues this evidence is an insufficient foundation upon which to base admission of the breathalyzer results. The State must offer a copy of the document setting out the approved procedures for it to be sufficient. Officer Haverstock's statement was a mere assertion he believed the approved procedures were followed. Such statement was insufficient to prove what the approved procedures were, Boothe opines. We agree.

In Klebs v. State, (1974) 159 Ind.App. 180, 305 N.E.2d 781, cert. denied, (1974) 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107, the court of appeals held there had been an insufficient foundation laid for the admission of the breathalyzer test results at trial. In discussing the evidence on the three elements of foundation, Robertson, P. J., speaking for the court said:

We cannot conclude, as a matter of law, that the State sustained its burden in establishing a foundation for admission of the results of the breathalyzer test. There was a fatal evidentiary absence germane to each of the three requirements. There was no evidence to show the operator was certified within the two years prior to administering the test in the instant case as required by the rules prescribed by the department of toxicology. The operator's testimony said by the State to establish the machine's inspection and approval was as follows:

"Q. Did you know of your own knowledge of its inspection and operating efficiency?

A. Yes.

Q. Would you state to the Court the degree of operating efficiency of the machine that you used and of which you are testifying about. Or perhaps instead of efficiency I should say accurancy (sic).

A. Plus or minus. I can't answer that."

We are of the opinion that this testimony falls short of establishing that the machine used to test Klebs had been properly inspected by the department of toxicology. Lieutenant Awe described the technique used to administer the test in response to a preliminary voir dire by Klebs' counsel, however, the record is devoid of any evidence to establish that the procedure described resembled the procedure approved by the department of toxicology.

Id. at 184, 305 N.E.2d at 783-84. This holding is supported by the decision in Hartman v. State, (1980) Ind.App., 401 N.E.2d 723 where the court per Hoffman, J. held:

"Having reviewed the entire record it must be concluded that the State failed to satisfy the third requirement. While the video tape portrays the technique utilized by Collins to administer the test, the record is devoid of any evidence establishing that the procedure utilized resembled the procedure approved by the Department. Hence, the test results were inadmissible."

Id. at 725. We also note the case at bar is distinguishable from Denman v. State, (1982) Ind.App., 432 N.E.2d 426. There the document outlining the approved procedures was admitted into evidence.

Based on the rationales of these cases, we hold in the case at bar there was an insufficient foundation laid by the State to admit the breathalyzer test results and the video tape of the test. The State failed to show the operator used approved methods because there was no evidence as to what the approved methods were. ⁴ Without this evidence, the court cannot make a proper judgment as to the admissibility of the breathalyzer test results.

The State argues the approved techniques question is one of weight of the evidence, not admissibility, citing the cases of Collins v. State, (1981) Ind.App., 422 N.E.2d 1250, and Sutton v. State, (1981) Ind.App., 422 N.E.2d 430. These cases are distinguishable. They deal with the necessity of connecting the evidence with the defendant.

The appropriate authorities here are the Klebs, (1974) 159 Ind.App. 180, 305 N.E.2d 781, and Hartman, (1980) Ind.App., 401 N.E.2d 723, cases which deal specifically with the required foundation for admission of breathalyzer test results. In those cases, the court held the insufficiency of the foundation went to the admissibility of the test results not weight.

Even though the test results were improperly admitted, there was substantial evidence of probative value to support the verdict. Officer Haverstock testified he noticed from ten feet away that Boothe had bloodshot, watery eyes, and Boothe's breath smelled strongly of alcohol. Boothe responded very slowly to orders or instructions, was unable to stand upright without swaying back and forth, had difficulty in touching his nose, and was unable to walk a reasonably straight line. This is sufficient evidence of intoxication.

II. OPERATION ON PUBLIC HIGHWAY NOT REQUIRED

Boothe argues the trial court erred in refusing to give his tendered instructions setting out the requirement that a person must operate a vehicle on a public highway while intoxicated in order to be found guilty of violating IC 9-4-1-54. ⁵ We disagree.

The issue of whether the operation of the vehicle while intoxicated must be on a public highway was discussed and...