Oller v. State, 3-184A22

• Decision Date: 31 October 1984
• Docket Number: No. 3-184A22,3-184A22
• Citation: 469 N.E.2d 1227
• Parties: Rodney OLLER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1227

469 N.E.2d 1227

Rodney OLLER, Appellant, v. STATE of Indiana, Appellee.

No. 3-184A22.

Court of Appeals of Indiana Third District.

Oct. 31, 1984.

John M. Kopack, Gilyan, Hanson & Kopack, Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Appellant was found guilty by a jury of operating a vehicle while intoxicated on October 28, 1983, and at the second stage of the bifurcated hearing, the jury found appellant to have had a similar conviction within the previous five years. Appellant was subsequently sentenced to two years imprisonment. Appellant raises the following five issues on appeal:

(1) whether the trial court erred when it failed to grant appellant's motion for mistrial after the State made certain remarks to the jury in its opening statement;

(2) the admissibility of appellant's breathalizer test results (3) whether the trial court erred when it allowed the State to amend the information at the close of its case-in-chief;

(4) the sufficiency of the evidence to support the conviction; and

(5) the admissibility of certain documents purporting to establish appellant's past driving record.

The facts relevant to this appeal are as follows. At approximately 12:30 A.M. on June 11, 1983, Officer Toth of the Merrillville Police Department, while driving southbound on Broadway (State Road 53), observed a man sitting on a motorcycle just off the road near the northbound lane of Broadway. After passing the vehicle, Officer Toth saw, through his rearview mirror, that the motorcycle had tipped over. Officer Toth made a U-turn to check on the driver, but the driver remounted the motorcycle and drove northbound on Broadway. Officer Toth paced the motorcycle as doing 50 miles per hour in a 35 miles per hour zone.

Officer Toth, using his red light and siren, stopped the motorcycle and the driver was identified as appellant. The officer noticed that appellant swayed as he walked, his clothing was in disarray, his speech was slurred, he smelled of alcohol, and he fumbled in his wallet while he was looking for identification. Officer Toth administered the toe-to-heel and finger-to-nose field sobriety tests which appellant failed.

Officer Toth took appellant to the Merrillville Police Department where he was given a breathalizer test. Appellant scored .13%. The test was administered by Toth, a certified breathalizer operator. Toth had followed the approved procedures as established by the State Department of Toxicology, and the machine and ampoules used in the test had been certified.

On June 15, 1983, an information was filed charging appellant with driving under the influence of intoxicating liquor. Because the State alleged that appellant had a prior conviction under IND.CODE Sec. 9-4-1-54(b), the information charged appellant with a Class D felony pursuant to the statute's provision that a Class A misdemeanor is enhanced to a Class D felony if the individual has a prior conviction occurring after June 30, 1978. ¹

During its opening statement, the State made the following remark:

"I will not keep you any longer, but I want you to keep one thing in mind: We would not be here today if those test results were under the legal limits."

At that time, after the jury had been taken out of the courtroom, appellant made a motion for mistrial arguing that the statement caused prejudice against the appellant. Appellant's motion was denied by the trial court, and in support of its ruling the court stated that the jury had previously been instructed that the opening statement was not evidence. In addition, the trial court found that the State intended to produce those test results as part of the evidence. Once the jury was brought back into the courtroom, the trial court admonished the jurors that opening statements are not evidence and the jurors are not to draw conclusions from them.

Our Supreme Court has previously addressed this issue of prosecutor comments in opening statement. In Vanyo v. State, (1983) Ind., 450 N.E.2d 524, at 526, the Court stated:

"It is well settled that the purpose of an opening statement is to inform the jury of the charges and the contemplated evidence. Its scope and content are within the sound discretion of the trial judge and a cause will not be reversed unless a clear abuse of discretion is shown.... Likewise, the granting of a mistrial is within the sound discretion of the trial court and its determination will be reversed only where an abuse of that discretion can be established.... If a jury is admonished by the trial court to disregard what has occurred at trial, or if other reasonable curative measures are taken, no reversible error will ordinarily be found." (Citations omitted.)

Throughout his brief, appellant contends that the prosecutor's statements "aroused the passions of the jury." However, there was no showing that the jurors' passions were aroused nor that appellant was prejudiced. Furthermore, any possible error was cured by the court's subsequent admonition. Therefore, the trial court did not err when it failed to grant appellant's motion for a mistrial.

During the course of the proceedings, the State attempted to introduce appellant's breathalizer test results. The law in Indiana is that in order for the results of a breathalizer test to be admissible, three foundational elements must be laid:

1) that the test was administered by an operator certified by the State Department of Toxicology;

2) that the equipment used in the test was inspected and approved by the State Department of Toxicology; and

3) that the operator used techniques approved by the State Department of Toxicology. Boothe v. State, (1982) Ind.App., 439 N.E.2d 708; Hartman v. State, (1980) Ind.App., 401 N.E.2d 723.

In order to lay the proper foundations for admission of the test results, the State offered the following:

Exhibit No. 1 is a letter from the State Department of Toxicology to the Merrillville Police Department stating in full:

"The following officers from your department attended and successfully completed the Chemical Tests for Intoxication School, December 14-18, 1981:

Donald S. Toth

Indiana University will issue these officers a certificate and a wallet identification card. The wallet cards are enclosed and the certificates will be mailed to you when ready.

All operators who have passed this course are certified by this department to operate breath test equipment under the provisions of House Enrolled Act No. 1165 of 1969, Senate Enrolled Act No. 459 of 1971, and according to the Regulations filed December 30, 1975."

Exhibit No. 2 is a letter certifying inspection and compliance on June 1, 1983, of the machine and ampoules used in appellant's breathalizer test. The letter was written by the Director of the State Department of Toxicology and was filed with the Lake Circuit Clerk of Courts on June 16, 1983.

Exhibit No. 3 is a copy of the State Department of Toxicology's approved method for conducting the breathalizer test, dated June 2, 1975.

In addition, the State offered Officer Toth's testimony that he had followed the Department of Toxicology's method.

On appeal, appellant argues that the breathalizer test results were improperly admitted. Appellant first contends that Exhibit No. 1 is not proper because the certificate referred to therein was not introduced at trial. However, the letter, in and of itself, is sufficient to establish that Officer Toth is a qualified operator.

Appellant also argues that although the inspection occurred on June 1, 1983, the certification of the results was not filed until June 16, 1983; thus at the time of appellant's breathalizer test on June 11, 1983, the machine and ampoules were not certified.

In IND.CODE Sec. 9-4-4.5-6 the Director of the State Department of Toxicology is authorized to adopt rules concerning certification of chemical breath test equipment and operators. ² The statute also states the evidentiary value of such certification:

"(c) The certificate or a certified copy of the certificate pertaining to chemicals and equipment constitutes prima facie evidence that the equipment and chemicals were inspected and approved in accord with the rules and regulations of the department on the dates specified in them. The certificate or a certified copy of the certificate showing the equipment and chemicals were inspected and approved on a date within one hundred eighty (180) days before the date a breathalizer test was given constitutes prima facie evidence that the equipment and chemicals were in proper working order on the date the test was given.

"(b) Certificates of inspection and approval of the equipment and chemicals issued by the department shall be filed by the department with the clerk of the circuit court in the county or counties in which the equipment and chemicals are used.... However, a failure to file a certificate does not invalidate any tests performed."

Here, the machine and ampoules were inspected on June 1, 1983. That date is less than 180 days prior to the date of appellant's test. There is no merit in appellant's argument that the failure to file the certificate until June 16 is fatal. It is clear the machine and ampoules were tested and approved on June 1, 1983.

Having dealt with appellant's attacks on the foundations of the breathalizer test, it is clear that the trial court committed no error in admitting the test results.

During the trial of this case, the State moved to amend the information by correcting the typographical error of "State Road 55" to "State Road 53." The motion was granted over appellant's objection. On appeal, appellant argues that the change was one of substance in that it changed an essential element of the charge.

However, our Supreme Court has ruled that it is not essential to the charge of driving under the influence of liquor to name the exact place within the...