Klebs v. State
| Citation | 159 Ind.App. 180,305 N.E.2d 781 |
| Decision Date | 15 January 1974 |
| Docket Number | No. 3--873A103,3--873A103 |
| Parties | Richard Murray KLEBS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Court of Appeals of Indiana |
Foster, Stanish & Kouris, Hammond, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., J. David Hollingsworth, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
The defendant-appellant (Klebs) was convicted in a bench trial of causing death while driving under the influence of liquor, IC 9--4--1--54, Ind.Ann.Stat. § 47--2001 (Burns 1973). Klebs was sentenced from one to two years and fined $500. The three issues in his overruled motion to correct errors are:
1. What the proper foundation laid for admission of the breathalyzer test results;
2. Was it error to admit a copy of the test results rather than the original document; and
3. Was the evidence sufficient to support the verdict?
When viewed most favorably to the State, the evidence discloses that during the late afternoon and early evening hours of May 5, 1972, Klebs visited the House of Stewart's Restaurant and Lounge in Hammond, Indiana. While there he consumed a steak dinner and between eight to ten bourbon and waters over a three and a half hour period. After Klebs departed he was involved in a head-on collision with another automobile a short distance from the restaurant. The driver of the other car died as a result of the accident. Eyewitnesses testified that Klebs' auto had weaved across the center line of the road several times and that he had difficulty in negotiating a turn on to another street before the fatal collision. Following the accident police officers took Klebs to the Hammond Police Station where Lieutenant Awe administered the breathalyzer test pursuant to IC 9--4--4.5--1 and 9--4--4.5--3, Ind.Ann.Stat. § 47--2003c and § 47--2003e (Burns 1973). The test results indicated .19% by weight of alcohol in Klebs' blood.
The Indiana legislature has provided that evidence of the alcohol content of a defendant's blood, as shown by a chemical analysis of his breath, is admissible as evidence. Evidence of .10% or more, by weight of alcohol in the defendant's blood, is prima facie evidence that he was under the influence of intoxicating liquor sufficiently to lessen his driving ability to such an extent as to endanger other persons using the public highways. IC 9--4--1--56, Ind.Ann.Stat. § 47--2003 (Burns 1973). Another statute sets forth certain requirements that must be met prior to the test results being accepted as evidence. That statute reads:
(Emphasis added.) IC 9--4--4.5--6, Ind.Ann.Stat. § 47--2003h (Burns Code ed. 1973) 1
The department of toxicology's rules and regulations filed pursuant to the foregoing statute provide in pertinent part:
'C. Certification and recertification of chemical test operators.
1. All persons who have successfully completed an approved course in the theory and operation of chemical test devices shall be certified as chemical test operators by the director of the department of toxicology.
2. Certification shall be valid for two (2) years from the date of certification. A certification card shall be issued to the certified operator and such card shall bear an expiration date.
3. Recertification procedure shall be determined by the director of the department of toxicology.
4. Those seeking recertification must attain a score of 70% or more on a written examination similar in content to the final examination given at the completion of the school for training chemical test operators and successfully completing actual breath tests using a chemical test device and a known water-alcohol solution in a breath test simulator . . ..' Ind.Admin.Rules and Regulations Rule (47--2003h)--1 (Burns 1973).
The final statutory provision of concern to the instant case reads:
'(d) The term 'chemical test' for the purposes of this chapter means an analysis by such persons using such techniques and equipment as shall have been approved by the department of toxicology of the Indiana University school of medicine of the breath, blood, urine or other bodily substance for the determination of the presence of alcohol or drugs, or a combination of alcohol and drugs in such quantities as to constitute intoxication or 'under the influence' as that term may be defined by statute.' (Emphasis added.) IC 9--4--4.5--2, Ind.Ann.Stat. § 47--2003d (Burns Code ed. 1973).
From the foregoing statutes Klebs has extracted three requirements for a proper foundation for the admission of the test results. Those three requirements are:
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.
It is the State's contention that these requirements were fulfilled.
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...
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