Mordacq v. State, 09A05-9107-CR-235

• Decision Date: 21 January 1992
• Docket Number: No. 09A05-9107-CR-235,09A05-9107-CR-235
• Citation: 585 N.E.2d 22
• Parties: Celeste MORDACQ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 22

585 N.E.2d 22

Celeste MORDACQ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 09A05-9107-CR-235.

Court of Appeals of Indiana Fifth District.

Jan. 21, 1992.

Steven J. Moss, Jeffrey S. Zipes, Coots Henke & Wheeler, Carmel, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office Of Atty. Gen., Indianapolis, for appellee-plaintiff.

BARTEAU, Judge.

Celeste Mordacq was convicted in a bench trial of operating a vehicle with at least .10% blood alcohol content, a Class C misdemeanor. Her appeal argues the evidence was insufficient. We agree, and reverse.

FACTS

In the early morning of January 19, 1991 Logansport police officer Rozzi noticed a car parked in the 100 block of 7th Street with its engine running. Rozzi continued on his rounds. Approximately an hour later, at around 3:30 a.m., having returned to 7th St. and noticing the same car, still running and appearing unmoved from before, Rozzi decided to investigate further. He found Mordacq in the driver's seat, asleep. After wakening her, and smelling an odor of alcohol on her breath, Rozzi administered a portable breath test, then transported Mordacq to the county jail, where the Intoxilyzer 5000 recorded a blood alcohol content ("BAC") of .10%. The Intoxilyzer printout, admitted into evidence as State's exhibit 4, indicates a test time of 3:55 a.m., and shows a handwritten notation "3:33 a.m." entered in the blank space labeled "time first observed." Rozzi testified that when he first questioned Mordacq, she told him that she had driven to 7th St. at least two hours earlier, but she wasn't sure of the time. Rozzi issued Mordacq a summons for operating while intoxicated, Ind.Code 9-30-5-2, later amended by information to operating with at least .10% BAC, I.C. 9-30-5-1. ¹ Apart from Mordacq's admission to Rozzi, the State presented no evidence as to how or when her vehicle arrived at 7th St.

DISCUSSION

Mordacq was convicted of "operat[ing] a vehicle with at least ten-hundredths percent (0.10%) by weight of alcohol...." I.C. 9-30-5-1. Similarly, I.C. 9-30-5-2 prohibits "operat[ing] while intoxicated...." Although there is no statutory definition of the verb "operate," its meaning can be deduced by reference to the definition of "operator," that is, one who "operates." The "operator" of a motor vehicle is, in pertinent part, "a person ... who ... drives or is in actual physical control of a motor vehicle upon a highway...." I.C. 9-13-2-118(a)(1). Thus, to operate a vehicle is to drive it or be in actual physical control of it upon a highway. But see Chilcutt v. State (1989), Ind.App., 544 N.E.2d 856, trans. denied (statute prohibiting operating with BAC of .10% or more applies to both private and public property); Huey v. State (1987), Ind.App., 503 N.E.2d 623 (same, operating while intoxicated). This court has written "the State does not have to prove movement of the car." Johnson v. State (1988), Ind.App., 518 N.E.2d 1127, 1128. However, the Johnson court also opined that "the word 'operate' requires effort, the doing of something, by the operator." Id.

In reviewing claims of insufficient evidence, we will not weigh the evidence or judge the credibility of the witnesses. We look only at the evidence favorable to the verdict to determine whether the State proved the crime beyond a reasonable doubt. Chilcutt, 544 N.E.2d at 859.

In a case where a vehicle is discovered motionless with the engine running, whether a person sitting in the driver's seat "operated" the vehicle is a question of fact, answered by examining the surrounding circumstances. Thus, it has been held that the evidence was insufficient in such a case, involving .14% BAC, where the evidence showed that the defendant left a tavern, walked to a car parked in a nearby parking lot, started the engine, then fell asleep. Hiegel v. State (1989), Ind.App., 538 N.E.2d 265, trans. denied; accord Corl v. State (1989), Ind.App., 544 N.E.2d 211. The Hiegel court explained that to show "the defendant merely started the engine of the vehicle is not sufficient evidence to sustain a conviction for operating a vehicle while intoxicated. There must be some direct or circumstantial evidence to show that defendant operated the vehicle." Id. at 268. A concurring opinion in Hiegel explained further that in order to obtain a conviction for operating while intoxicated, "[t]he most crucial evidentiary bridge that the State must cross is the defendant's intent to operate ... in a state of intoxication.... If the only evidence is that he was sitting in a reclining position behind the wheel of his vehicle with the motor running perhaps to keep warm while the effects of alcohol subsided, this would not support a finding of guilty beyond a reasonable doubt." Id.

In contrast to the facts in Hiegel, defendants have been held to be operating the vehicle, when found at the wheel of a car with its engine running: on the median strip of a four lane-highway, Bowlin v. State (1975), 164 Ind.App. 693, 330 N.E.2d 353, reh'g denied (facts created probable cause that defendant had been driving); stopped at an intersection, asleep, Rose v. State (1976), 168 Ind.App. 674, 345 N.E.2d 257; stuck in a snowbank on the median of an interstate highway, Garland v. State (1983), Ind.App., 452 N.E.2d 1021; and, stopped in a lane of traffic on a county road, asleep, Traxler v. State (1989), Ind.App., 538 N.E.2d 268.

Mordacq relies on Hiegel; the State cites Rose and Bowlin. We hold that Mordacq was not operating her vehicle within the meaning of I.C. 9-30-5-1 when Rozzi wakened her. There was no evidence that Mordacq's car was stopped in the travel portion of the roadway. Rather, Rozzi consistently used the word "parked." Thus, the facts of this case, in regard to the moment Rozzi found Mordacq asleep, place it within the holding of Hiegel rather than Rose-type cases. Therefore, the evidence was insufficient to prove a violation of I.C. 9-30-5-1 occurring when Rozzi came upon the sleeping Mordacq.

We turn now to the question whether the evidence was sufficient in regard to Mordacq's admission of having driven to 7th St. some hours before Rozzi investigated her parked car. It is commonly understood that the drinker's BAC varies over time, as the physiological processes of absorption and oxidation run their course. See Tyner v. State (1987), Ind.App., 503 N.E.2d 444. At one time, this fact posed an obstacle to the State's task of proving operation of a vehicle while possessed of a BAC of at least .10% in cases where the chemical test was not administered simultaneously with operation of the vehicle. See Smith v. State (1986), Ind.App., 502 N.E.2d 122, 127 n. 5, reh'g denied, trans. denied ("It would be necessary to show the blood alcohol content at the time of the offense by means of extrapolation ... in order to support a conviction under I.C. 9-[30-5-1]."). Now, however, the State can avail itself of a statutory presumption enacted in 1987 as I.C. 9-11-4-15, and currently set out in I.C. 9-30-6-15:

(a) At any proceeding concerning an offense under IC 9-30-5, 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 time allowed for testing under section 2 of this chapter; as shown by an analysis of the person's breath, blood, urine, or other bodily substance, is admissible.

(b) If, in a prosecution for an offense under IC 9-30-5, evidence establishes 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-hundredths 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.

The reference in sections (a)(2) and (b)(1) of I.C. 9-30-6-15 to the "time allowed for testing under section 2 of this chapter" directs us to I.C. 9-30-6-2, which provides:

(a) A law enforcement officer who has probable cause to believe that a person has committed an offense under this chapter, IC 9-30-5, or IC 9-30-9 shall offer the person the opportunity to submit to a chemical test.

(b) A law enforcement officer:

(1) is not required to offer a chemical test to an unconscious person; and

(2) may offer a person more than one (1) chemical test under this chapter.

(c) A test administered under this chapter must be administered within three (3) hours after the law enforcement officer had probable cause to believe the person committed an offense under IC 9-30-5.

(d) A person must submit to each chemical test offered by a law enforcement officer in order to comply with the implied consent provisions of this chapter.

The effect of the foregoing statutes is illustrated in Livingston v. State (1989), Ind.App., 537 N.E.2d 75, in which a chemical test conducted twenty-nine minutes after an officer stopped the defendant for speeding revealed a BAC of .13%. Probable cause to believe the defendant had committed an offense under I.C. 9-30-5 arose when, after stopping the defendant for speeding and driving erratically, the officer detected a strong odor of alcohol on the defendant's breath. Because the test was administered within three hours, I.C. 9-30-6-2(c), the test result was admissible, I.C. 9-30-6-15(a)(2), and because the result was at least .10% BAC, it created a rebuttable presumption that the defendant had at least .10% BAC when stopped by the officer, I.C. 9-30-6-15(b)(2). And, because the defendant failed to rebut the presumption, the evidence was sufficient to sustain a conviction for operating with a BAC of at...