Mullins v. State
| Decision Date | 04 January 1995 |
| Docket Number | No. 49S02-9501-CR-1,49S02-9501-CR-1 |
| Parties | Michael C. MULLINS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
This case comes to us on the State's petition to transfer the decision of the Court of Appeals in Mullins v. State (1994), Ind.App., 629 N.E.2d 886, disapproved by Baran v. State (1994), Ind., 639 N.E.2d 642, 647 n. 8, reh'g pending. Ind.Appellate Rule 11(B). The Court of Appeals reversed Mullins's conviction for operating a vehicle with at least ten-hundredths percent (0.10%) by weight of alcohol in his blood. It reversed the conviction because, it concluded, the printout from the breath-analysis machine that the State offered to prove the amount of alcohol in Mullins's blood at the time he was arrested did not indicate any units of measurement. Mullins, 629 N.E.2d at 887. Consequently, the Court of Appeals opined, the evidence was insufficient to sustain Mullins's conviction. For the reasons given in our opinion in Baran v. State, we grant transfer.
After a bench trial on August 7, 1992, Michael Mullins was acquitted of operating a vehicle while intoxicated, 1 but he was convicted of operating a vehicle with at least ten-hundredth's percent (0.10%) by weight of alcohol in his blood, a Class C misdemeanor. 2
The facts most favorable to the verdict show that on January 20, 1992, at approximately 11:30 p.m., Mullins and two female friends were drinking at a bar not far from the intersection of Rockville Road and Interstate 465. At approximately 2:00 a.m. in the morning of January 21, Indiana State Police Trooper Jeffrey Hearon saw a black Datsun that was weaving and travelling slower than the traffic flow on southbound I-465 near Rockville Road.
Trooper Hearon stopped the Datsun and asked Mullins, the driver, for his driver's license and registration. Trooper Hearon noticed that Mullins's eyes were red and glassy, that there was an odor of alcohol on his breath, and that his speech was slurred. Trooper Hearon asked Mullins if he had been drinking, to which Mullins replied that he had had a few beers.
Trooper Hearon gave Mullins an Alco-Sensor test, arrested him, and took him to the Speedway police department. At the Speedway police station, Trooper Hearon gave Mullins a field sobriety test followed by a breath test. The breath-analysis machine, a BAC Datamaster with a keyboard, printed out the results on an "evidence ticket." The printout read as follows:
Including the issue that the Court of Appeals decided in his favor, Mullins raises four issues for us to decide. 3 We state those issues as:
I. Whether the numbers on the "evidence ticket" were sufficient evidence that the amount of alcohol in Mullins's blood was greater than ten-hundredths percent by weight.
II. Whether the State laid a sufficient foundation demonstrating what the approved procedures for administering a breath test were and that Trooper Hearon followed those procedures.
III. Whether the breath-test machine used to test Mullins was properly certified.
IV. Whether the State laid a sufficient foundation showing that the breath-test machine used to test Mullins was working properly.
Mullins raises three issues that the Court of Appeals did not reach. These issues all involve the statutes governing the admission of breath-test results. Because the interaction of the statutory framework is complex, for ease of reference we now set out the statutes involved in a footnote before addressing each of Mullins's arguments in turn. 4
Indiana Code Ann. § 9-30-5-1(a) (Burns 1991) provides that "[a] person who operates a vehicle with at least ten-hundredths percent (0.10%) by weight of alcohol in the person's blood commits a Class C misdemeanor." Mullins contends that the "evidence ticket" does not express the test results as a percentage, by weight, of alcohol in the blood, and that therefore the "evidence ticket" is insufficient to establish one of the elements of the offense. We disposed of this argument in Baran when we said:
Pursuant to Indiana Administrative Code tit. 260, r. 1.1-2-1(e)(2), breath test equipment is tested for accuracy using a known ethanol-water or ethanol-gas solution, measured as a percentage of weight by volume. Thus, in order to be properly certified by the Department of Toxicology, the machines must measure blood alcohol content as a percentage of alcohol by weight in the blood.
Courts are permitted to take judicial notice of Indiana law. Hernandez v. State (1982), Ind., 439 N.E.2d 625, 631. In fact, courts are required to take judicial notice of the regulations concerning breath testing. Ind.Code § 4-22-9-3; Hatch, [ (1989) ] 547 N.E.2d at 277. Judicial notice relieves the party having the burden of establishing a particular fact from submitting formal proof of that fact. Hutchinson v. State (1985), Ind., 477 N.E.2d 850, 854.
....
[B]ecause the breath test equipment must measure blood alcohol content as a percentage of alcohol by weight in the blood in order to be properly certified by the Department of Toxicology, the trial court was entitled to take judicial notice of the fact that the Intoxilyzer 5000 machine printout expresses the test result as a percentage of alcohol by weight in the blood.
Baran, 639 N.E.2d at 647-48 (some citations omitted) (footnotes omitted) (emphasis in the original). The trial court was here, as in Baran, entitled to take judicial notice that the BAC Datamaster printout expressed the test result as a percentage of alcohol by weight in the blood. The evidence was therefore sufficient to establish that the percentage by weight of alcohol in Mullins's blood was greater than ten hundredths percent (0.10%).
Mullins argues that because the State offered no evidence of what the approved procedures were for administering a breath test on a BAC Datamaster with a keyboard, the State's case failed as a matter of law. (Brief of Appellant Opposing Transfer at 8). Additionally Mullins argues that the State introduced insufficient evidence that Trooper Hearon followed the prescribed procedures. (Brief of Appellant Opposing Transfer at 6). At trial, Mullins did not object on either of these grounds to the admission of the breath-test results. 5 In order to preserve a claim of trial court error in the admission or exclusion of evidence, it is necessary at trial to state the objection together with the specific ground or grounds therefor at the time the evidence is first offered. Harvey v. State (1989), Ind., 546 N.E.2d 844, 846; Gradison v. State (1973), 260 Ind. 688, 706, 300 N.E.2d 67, 80. "Failure to state the specific basis for objection waives the issue on appeal." Harvey, 546 N.E.2d at 846. But even on the merits, Mullins is mistaken on both points.
Mullins relies on several cases that say the State must offer some evidence of what the approved procedures for administering a breath test are. In Klebs v. State (1974), 159 Ind.App. 180, 305 N.E.2d 781, trans. denied, cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974), the Court of Appeals concluded that it was error to admit breath-test results when the State had not laid the proper foundation by proof of what the approved procedures for administering breath tests were. The court said:
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.... Lieutenant Awe described the technique used to administer the test in response to preliminary voir dire by Klebs' counsel, however the record is devoid of any evidence to establish the procedure described resembled the procedure approved by the department of toxicology.
Id. 159 Ind.App. at 184, 305 N.E.2d at 783-84.
Similarly, in Hartman v. State (1980), Ind.App., 401 N.E.2d 723, reh'g denied, the Court of Appeals reversed a conviction for driving while intoxicated. Although at trial the State introduced a video tape of the officer giving the defendant a breath test, the Court of Appeals said, Id. at 725.
And in Boothe v. State (1982), Ind.App., 439 N.E.2d 708, trans. denied, the State offered the statement by the officer who had administered the test that the procedures he had followed were those approved by the Department of Toxicology. The Court of Appeals said:
Boothe argues [that the officer's statement] is an insufficient foundation upon which to base admission of the breathalyzer results. The State must offer a copy of the document setting out the approved procedures for it to be sufficient. Officer Haverstock's statement was a mere assertion he believed the approved procedures were followed. Such statement was insufficient to prove what the approved procedures were. We agree.
Id. at 711 (citing Klebs ).
But in Sell v. State (1986), Ind.App., 496 N.E.2d 799, ...
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