Keyes v. State, 08A02-8911-CR-00577
| Decision Date | 27 September 1990 |
| Docket Number | No. 08A02-8911-CR-00577,08A02-8911-CR-00577 |
| Parties | James R. KEYES, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff). |
| Court | Indiana Appellate Court |
Charles R. Deets, III, Heide Sandy Deets Kennedy Scrader & Antalis, Lafayette, for appellant.
Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Appellant-defendant James R. Keyes (Keyes) appeals his conviction for operating a motor vehicle with a blood alcohol content greater than .10 percent, 1 claiming the presumption created by IC 9-11-4-15(b) (1988) is unconstitutional because it relieves the State from proving blood alcohol content at the time of the offense (and shifts the burden of proof to the defendant) and that the evidence was insufficient.
We affirm.
The facts most favorable to the judgment reveal that on December 4, 1988, Carroll County Deputy Sheriff Tony Burns (Burns) was on routine patrol travelling northbound on State Road 29. He observed Keyes driving southbound and clocked him at sixty-eight miles per hour in a fifty-five mile per hour zone.
Burns stopped Keyes' vehicle and observed him walk unsteadily toward the patrol car. He then noticed that Keyes smelled of alcohol. Keyes failed a field sobriety test and was then taken to jail and given a breath test which revealed a blood alcohol content of .13 percent. Both tests were administered within three hours of the offense.
Following a jury trial on July 25, 1989, Keyes was found guilty of operating a motor vehicle with a blood alcohol content greater than .10 percent.
Keyes presents the following issues for our review:
1. Whether the presumption in IC 9-11-4-15(b), that a subsequent blood alcohol content existed at the time of an alleged offense, is constitutional?
2. Whether the evidence was sufficient to support the conviction?
ISSUE ONE--Is the presumption in IC 9-11-4-15(b) constitutional?
PARTIES' CONTENTIONS--Keyes argues that IC 9-11-4-15(b) is unconstitutional because that statute relieves the State from proving the defendant's blood alcohol content at the time of the offense, and the burden of proving his blood alcohol content was less than .10 percent when he operated the vehicle was improperly shifted to him.
The State responds that the burden of proof is not shifted to the defendant inasmuch as the presumption in IC 9-11-4-15(b) is rebuttable and the defendant may produce evidence to overcome that presumption.
CONCLUSION--The presumption created by IC 9-11-4-15(b) is constitutional.
The presumption in IC 9-11-4-15(b) that a subsequent blood alcohol content existed at the time of an alleged offense is constitutional. IC 9-11-4-15 reads as follows:
"(a) At any proceeding concerning an offense under I.C. 9-11-2, evidence of the amount by weight of alcohol that was in the blood of the person charged with the offense:
(1) at the time of the alleged violation; or
(2) within the period of time allowed for testing under Section 2 of this chapter; as shown by the analysis of the person's breath, blood, urine, or other bodily substance is admissible.
(b) If, in a prosecution for an offense under IC 9-11-2, evidence established that:
(1) a chemical test was performed on a test sample taken from the person charged with the offense within the period of time allowed for testing under Section 2 of this chapter; and
(2) the person charged with the offense had at least ten hundredth percent (0.10%) by weight of alcohol in the person's blood at the time the test sample was taken; the trier of fact shall presume that the person charged with the offense had at least ten-hundredths percent (0.10%) by weight of alcohol in the person's blood at the time the person operated the vehicle. However, this presumption is rebuttable."
(Emphasis supplied).
This issue was addressed in Chilcutt v. State (1989), Ind.App., 544 N.E.2d 856. In upholding the constitutionality of the presumption spelled out in IC 9-11-4-15(b), this court concluded:
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