Mehidal v. State

Decision Date09 November 1993
Docket NumberNo. 71A05-9212-CR-431,71A05-9212-CR-431
Citation623 N.E.2d 428
PartiesAmarree H. MEHIDAL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Anthony V. Luber, South Bend, for appellant-defendant.

Pamela Carter, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

RUCKER, Judge.

Amarree H. Mehidal appeals his convictions and sentences for Operating a Vehicle while Intoxicated Resulting in Serious Bodily Injury to Another ("OWI Bodily Injury") 1, and Operating a Vehicle while Intoxicated with a Prior Conviction of Operating a Vehicle while Intoxicated ("OWI with a Prior") 2, both Class D felonies. He raises the following rephrased issues:

1. Did the trial court err in admitting into evidence opinion testimony as to whether Mehidal was intoxicated?

2. Did the trial court err in admitting into evidence testimony concerning the method used in gathering and testing Mehidal's blood sample?

3. Did the trial court err in admitting into evidence the blood serum test results?

4. Did the trial court err in its instructions to the jury?

5. Did the trial court err in sentencing Mehidal for both OWI Bodily Injury and OWI with a Prior?

6. Was Mehidal's sentence manifestly unreasonable?

We affirm in part, reverse in part, and remand.

The evidence most favorable to the trial court's judgment reveals that on February 22, 1993, at approximately 6:45 p.m., Mehidal drove his car through a red light at the intersection of Grape and Edison Roads in Mishawaka, Indiana. Mehidal was traveling fifty-five to sixty miles per hour in a thirty-mile per hour speed zone when he crashed into four other vehicles. Norma Rector, a passenger in one of the cars struck by Mehidal, suffered a fractured pelvis and two broken bones in her right arm. Her husband, Robert, suffered a broken collar bone and a severed spinal cord. Bonnie Munneke and Vickie Cadieux, drivers of two other cars struck by Mehidal also suffered various injuries. At trial both Munneke and Cadieux testified that Mehidal smelled of alcohol and that in their opinion he was intoxicated.

After police and emergency medical personnel arrived on the scene, Mehidal was transported to the St. Joseph's Medical Center. While enroute, Mehidal was belligerent and shouted profanities to a paramedic attempting to help him. When questioned by the medics as to whether he had consumed any alcohol, Mehidal replied that he had been drinking since 2:00 o'clock that afternoon. After his arrival at the medical center, Mehidal was treated by Dr. George Knowles. At trial Dr. Knowles testified that Mehidal was abusive, belligerent, grossly intoxicated and seriously impaired.

At the request of an investigating officer, Dr. Knowles ordered that a blood alcohol test be performed on a sample of Mehidal's blood. Kathleen Passwater, a laboratory technician, drew a blood sample from Mehidal and analyzed it through the use of an instrument identified as an "A.C.A. Machine." The test revealed a blood serum alcohol content of 310 mg/dl (.310%). Dr. Knowles testified that serum blood alcohol is fifteen to twenty percent higher than whole blood alcohol.

Mehidal was charged with two counts of Operating a Vehicle while Intoxicated Resulting in Serious Bodily Injury to Another (Counts I and II), Operating a Vehicle while Intoxicated (Count III), and Operating a Vehicle while Intoxicated with a Prior Conviction of Operating a Vehicle while Intoxicated (Count IV). In a bifurcated trial, the jury found Mehidal guilty on all counts.

Although the trial court entered judgment on each Count, the court sentenced Mehidal only on Counts I and IV. Mehidal was sentenced to three years for OWI Bodily Injury (Count I), and a consecutive three years for OWI with a Prior (Count IV). This appeal ensued in due course.

I.

Mehidal first contends the trial court erred in admitting into evidence lay witness testimony as to whether he was intoxicated. Mehidal acknowledges that non-expert witnesses are permitted to give their opinion of another's intoxication, Hicks v. State (1975), 164 Ind.App. 235, 328 N.E.2d 219, and that the admission of lay opinion rests with the sound discretion of the trial court. Hedrick v. State (1982), Ind., 430 N.E.2d 1150, 1155-46. Nonetheless, Mehidal argues that the degree to which a person is under the influence of alcohol so as to constitute intoxication, as the term is used in the traffic codes, is a legal question and not subject to opinion evidence. Brief of Appellant at 14. Mehidal's argument is simply another way of saying a non-expert should not be able to testify as to another's intoxication. The law in this area is well settled and Mehidal's argument lacks merit. We find no error here.

II.

Mehidal next complains the trial court erred in admitting into evidence testimony concerning the method used in gathering and testing his blood sample. He alleges the State failed to show compliance with Ind.Code Sec. 9-30-6-6 which provides in relevant part:

(g) A physician or a person trained in obtaining bodily substance samples and acting under the direction of, or under a protocol prepared by, a physician shall obtain a blood, urine, or other bodily substance sample if the following exist:

(1) A law enforcement officer requests that the sample be obtained.

(2) The law enforcement officer has certified in writing the following:

(A) That the officer has probable cause to believe the person from whom the sample is to be obtained has violated IC 9-30-5.

(B) That the person from whom the sample is to be obtained has been transported to a hospital or other medical facility for treatment.

(C) That the person from whom the sample is to be obtained has been involved in a motor vehicle accident that resulted in the serious bodily injury or death of another.

(D) That the accident that caused the serious bodily injury or death of another occurred not more than three (3) hours before the time the sample is requested.

Mehidal contends there was no evidence that a law enforcement officer requested the blood test, no evidence a law enforcement officer made the statutorily proscribed written certifications, no evidence showing Mehidal consented to the blood draw, and no evidence that the technician had the authority to draw blood or administer a blood test. According to Mehidal, the State failed to establish an adequate foundation for any testimony concerning the procedure used in gathering and testing his blood sample. Therefore, Mehidal concludes, the trial court erred in allowing the testimony into evidence.

Mehidal is mistaken. He apparently misperceives the distinction between testimony concerning the gathering and testing of evidence versus the foundational requirement for introducing test results into evidence. In this case Mehidal never objected to the introduction of the test results. Rather, he objected to the testimony of the laboratory technician concerning the procedure she used in gathering and testing the blood sample and converting alcohol content in blood serum to whole blood.

There is no question that results of a scientific test may not be properly introduced into evidence absent an adequate foundation. Smith v. State (1986), Ind.App., 502 N.E.2d 122, trans. denied. However, we are aware of no such foundational requirement for a witness describing the steps taken in gathering and testing the evidence in the first instance. Rather, a witness may testify on any relevant matter about which the witness has personal knowledge. Buck v. State (1983), Ind., 453 N.E.2d 993.

In this case the State presented testimony from Kathleen Passwater, a laboratory technician employed by the St. Joseph Medical Center. Passwater testified that she is trained in obtaining bodily substance samples and that she drew a sample of Mehidal's blood. She also testified that she is trained to analyze fluids on the "A.C.A. Machine" and that physicians routinely rely on the test results. Clearly, Passwater was competent to testify to those matters of which she possessed personal and firsthand knowledge. We find no error here.

III.

Mehidal next argues the trial court erred by permitting the serum blood test results into evidence because "[T]here was no accurate or concise method by which the evidence could be converted to blood alcohol content by weight." Brief of Appellant at 20. There are several problems with Mehidal's argument.

First, for a conviction under Ind.Code Sec. 9-30-5-1 the State must prove that the defendant operated a vehicle with at least ten-hundredths percent (0.10%) by weight of alcohol in the defendant's blood. Where a serum blood test has been taken of the defendant's blood, the State must present expert testimony concerning conversion of the serum test results into whole blood percentage by weight. Melton v. State (1992), Ind.App., 597 N.E.2d 359. trans. denied. In the absence of evidence establishing that the defendant was operating a vehicle with .10%, or more, by weight of alcohol in his blood, a conviction under I.C. Sec. 9-30-5-1 cannot be sustained. Id.

In the case before us Mehidal was neither charged with nor convicted of I.C. Sec. 9-30-5-1. Rather, he was charged with Operating a Vehicle while Intoxicated under I.C. Sec. 9-30-5-2, Operating a Vehicle while Intoxicated with a Prior Conviction of Operating a Vehicle while Intoxicated under I.C. Sec. 9-30-5-3, and Operating a Vehicle while Intoxicated Resulting in Serious Bodily Injury under I.C. Sec. 9-30-5-4. Thus, even if the test results were improperly admitted into evidence any error would be harmless. There was sufficient additional evidence presented to the jury of Mehidal's intoxication at the time he drove his car through a red light crashing into four other vehicles.

Second, Mehidal cites no authority for the proposition that serum blood test results are inadmissible absent expert testimony concerning conversion of the serum test to whole blood...

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  • Datzek v. State
    • United States
    • Indiana Supreme Court
    • December 14, 2005
    ...present expert testimony concerning conversion of the serum test results into whole blood percentage by weight." Mehidal v. State, 623 N.E.2d 428, 432 (Ind.Ct.App.1993) (citing Melton, 597 N.E.2d at Datzek argues that the State failed to present reliable evidence regarding Datzek's whole bl......
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    ...intoxicated pursuant to Indiana Code § 9-30-5-2. Pickens v. State, 751 N.E.2d 331, 335 (Ind.Ct.App.2001) (citing Mehidal v. State, 623 N.E.2d 428, 432 (Ind.Ct.App. 1993)). Because "there is no statutory requirement of proof of a particular blood-alcohol content above which a person is intox......
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    ...double jeopardy embraces prohibitions against successive prosecution and multiple punishment for the same offense. Mehidal v. State, 623 N.E.2d 428, 434 (Ind.Ct.App.1993). In other words, double jeopardy prohibits reprosecution for the same offense after an acquittal, reprosecution for the ......
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