Grogan v. State

• Decision Date: 29 August 1985
• Docket Number: No. 1-585A120,1-585A120
• Citation: 482 N.E.2d 300
• Parties: Robert L. GROGAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 300

482 N.E.2d 300

Robert L. GROGAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-585A120.

Court of Appeals of Indiana First District.

Aug. 29, 1985.

Ray Warren Robison, Bedford, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Robert Grogan appeals his convictions of driving while license suspended ¹ and driving while intoxicated. ² We affirm in part and reverse in part.

FACTS

On February 3, 1984, Grogan was seen, by a state trooper, driving a 1973 Ford automobile north of Bedford, Indiana. The trooper followed Grogan on Old State Road 37 and observed that Grogan was having trouble keeping his car on the road. The state policeman, Officer Summers, testified that Grogan's car crossed the center of the road and drove onto the shoulder a couple of times. The trooper turned his red lights Grogan was unable to produce a driver's license and the trooper noticed a smell of alcohol on Grogan's breath. The trooper testified that Grogan's speech was slurred, his walk was slow and difficult, his eyes and face were red and his balance was unsteady. The defendant was arrested and transported to the Bedford police station where he was given a breathalyzer test. The test revealed a blood alcohol level of .21.

on and shortly thereafter Grogan stopped his vehicle.

At trial, the trooper's testimony and results of the breathalyzer were admitted into evidence. Also, a certified driving abstract was admitted to support the amendment of the driving while license was suspended from 9-8-80 to 9-8-82 and until proof of financial responsibility is filed for three years. The abstract further reflected that his current status was "suspended". Grogan's aunt testified in his defense that Grogan had been in a car accident in 1979. She stated that since the accident Grogan's speech has not been good. Also, the defendant's eyes have been bloodshot and his walk slow and unsteady. However, the jury convicted Grogan on both counts.

The court then proceeded with a bifurcated trial to determine whether the defendant had been convicted of driving while intoxicated previously. The jury again rendered a verdict against Grogan. The trial judge sentenced the defendant to 180 days on the driving while suspended count. The driving while intoxicated conviction resulted in a two year sentence with all but 15 days suspended conditioned on satisfactory completion of supervised probation. The 15 day and 180 day sentences were ordered to be served consecutively. The defendant now appeals.

ISSUES

1. Whether State's Tendered Instruction Number 1, given as Preliminary Instruction 9-B, and as Final Instruction 7-B, was confusing to the jury and was based upon an unconstitutional statute which purports to shift the burden of proof.

2. Whether the trial court erred in admitting the results of the breathalyzer examination over defendant's objection because of the improper foundation for the admission of this evidence.

DISCUSSION AND DECISION

Issue One

The offense of driving with a suspended license is codified in Indiana Code section 9-1-4-52 as follows:

"(a) A person shall not operate a motor vehicle upon the public highways while his license or permit is suspended or revoked. A person who violates this subsection commits a Class A misdemeanor.

(b) Notwithstanding subsection (a), if:

(1) a person operates a motor vehicle upon the public highways while his license or permit is suspended or revoked; and

(2) the person's suspension or revocation

was a result of his conviction under IC 9-11-2; the person commits a Class A misdemeanor. However, notwithstanding IC 35-50-3-2, a person who violates this subsection shall be imprisoned for a fixed term of not less than sixty (60) days and not more than one (1) year. Notwithstanding IC 35-50-3-1, the court may not suspend any part of the sentence, except that part of the sentence exceeding sixty (60) days ..."

In 1983, the legislature added a provision dealing with the burden of proof when a defendant is charged with a violation of Ind.Code Sec. 9-1-4-52. This new provision requires the defendant to show that he possessed a valid driver's license at the time he was stopped. Indiana Code section 9-1-4-52.5 states: "In a prosecution, under section 52 of this chapter, the burden is on the defendant to prove by a preponderance of the evidence that he had been issued a driving license or permit that was valid at the time of the alleged crime." The court's instruction to the jury concerning the burden of proof tracked the precise language of Ind.Code Sec. 9-1-4-52.5. The jury was instructed as follows: "In the prosecution for driving while suspended, which is Count II in this case, the burden is on the defendant to prove by a preponderance of the evidence that he had been issued a driving license or permit that was valid at the time of the alleged crime." The court gave no other instruction concerning the burden of proof on a charge of driving with a suspended license. Grogan argues that the instruction given therefore shifted the burden of proof away from the state effectively requiring the defendant to prove his innocence. We agree.

The fourteenth amendment requires the state to prove every fact necessary to constitute the crime beyond a reasonable doubt. In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. "It has long been the fundamental law in Indiana that the burden of proof in a trial never shifts to the defendant. The state must establish beyond a reasonable doubt all necessary elements of the crime." Smith v. State (1969), 252 Ind. 425, 438, 249 N.E.2d 493, 500; see also, Dillon v. State (1971), 257 Ind. 412, 275 N.E.2d 312; Thompson v. State (1980), Ind.App., 400 N.E.2d 1151. However, while the state must establish all the elements it does not have the burden of negating all affirmative defenses which excuse or exempt the defendant's conduct. Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281; Ward v. State (1982), Ind., 438 N.E.2d 750; Davis v. State (1985) Ind.App., 481 N.E.2d 434; Burgin v. State (1982), Ind.App., 431 N.E.2d 864, trans. denied. Our courts consistently have held that it is permissible to place the burden on the defendant to establish facts which would mitigate his culpability for a crime. Reighard v. State (1984), Ind., 457 N.E.2d 557 (burden of proving insanity on defendant); Graham v. State (1982), Ind., 441 N.E.2d 1348 (burden of proving affirmative defense of intoxication is on defendant); cf. Bennett v. State (1981), Ind., 423 N.E.2d 588 (burden on state to prove defendant was not entrapped). We must therefore determine whether lack of a valid driver's license is an element of the crime for which Grogan was charged.

There are only two elements to the crime of driving with a suspended license. Neither criminal intent to violate the law nor knowledge by the defendant of the suspension of his license is an element of the crime. Sewell v. State (1983), Ind.App., 452 N.E.2d 1018; Roberts v. State (1979), 182 Ind.App. 430, 395 N.E.2d 802. In Sewell the court held that the state had carried its burden of proof because the evidence was sufficient to show that the defendant was driving an automobile at a time when his license had been suspended by the Bureau of Motor Vehicles. Sewell, 452 N.E.2d at 1021. We must conclude that whether the defendant's driver's license is suspended is an essential element of the offense which must be proved by the state beyond a reasonable doubt. Because the jury was not instructed concerning the state's burden but rather told only that the defendant had the burden of proving he holds a valid license by a preponderance of the evidence the court unconstitutionally shifted the burden of proof to the defendant to prove his innocence.

However, our holding does not necessarily require the conclusion that Ind.Code Sec. 9-1-4-52.5 is itself unconstitutional. We are bound to uphold a statute as constitutional if it can possibly be done without doing violence to the constitution, and every reasonable presumption must be indulged in favor of the legality of the statute. Lawrence v. State (1972), 259 Ind. 306, 286 N.E.2d 830. Statutes are presumed to be constitutional. Miller v. State (1983), Ind.App., 449 N.E.2d 1119. If the language of a statute supports a construction that is constitutional, then that construction must be adopted. Miller, 449 N.E.2d at 1121; Wallman v. State (1981), Ind.App., 419 N.E.2d 1346. We believe Ind.Code Sec. 9-1-4-52.5 can be interpreted to meet constitutional requirements.

Although the state had the burden of proving that Grogan's license had been suspended, we believe the legislature could cast the burden upon Grogan to rebut such evidence by showing he did in fact have a valid driver's license at the time. In Burgin, we upheld a statute placing the burden on the defendant in a drug prosecution to prove he had a valid prescription for the drug in question. We held that burden to be that of a preponderance of the evidence. Burgin, 431 N.E.2d 864.

The words of Judge Shields in Burgin, are particularly enlightening here:

"Our supreme court has held there is no constitutional impediment to a statute imposing the burden of proof upon a defendant on an issue if the issue is not an element of the crime. Price v. State, (1980) Ind , 412 N.E.2d 783. However, we stress that each element of the offense proscribed by I.C. 35-48-4-7 must be proved by the state beyond a reasonable doubt and that this obligation of the state remains throughout the trial. [Citations omitted. Original emphasis.]"

431 N.E.2d at 867.

In all criminal cases, the burden of proof is upon the state to establish beyond a reasonable doubt every element of the offense charged, and this burden never shifts. However, this means only that the burden never shifts with...