Warner v. State

• Decision Date: 18 September 1986
• Docket Number: No. 49A02-8603-CR-90,49A02-8603-CR-90
• Citation: 497 N.E.2d 259
• Parties: Robert WARNER, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
• Court: Indiana Appellate Court

Page 259

497 N.E.2d 259

Robert WARNER, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).

No. 49A02-8603-CR-90.

Court of Appeals of Indiana,

Second District.

Sept. 18, 1986.

David R. Hennessy, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Judge.

STATEMENT OF THE CASE

Defendant-appellant Robert Warner (Warner) appeals his conviction of operating a vehicle while intoxicated, ¹ contending the trial court erred by not suppressing evidence in support of his conviction and that, in any event, the evidence is not sufficient to support his conviction.

We reverse.

FACTS

The evidence most favorable to the trial court's judgment reveals that Donald A. Bender (Bender), an Indianapolis police officer, was on routine patrol on June 22, 1985. Bender was driving a marked Indianapolis The pickup truck then began to proceed east through the alley. Bender told the women to remain in the area and followed the pickup truck. As he did so, Bender requested a registration check on the truck and observed the manner in which the truck was being operated. The registration check revealed that the truck was registered to Warner. Although Bender followed the truck for approximately seventeen blocks and observed nothing unusual about its operation, he decided to pull the vehicle over to conduct an investigatory stop. Bender turned on his red lights, and Warner immediately pulled to the side of the road. Bender approached the truck, asked for Warner's driver's license, and indicated that he had been stopped for investigation of the complaint by the young women. Warner stated that he had simply been speaking with the women. During this brief conversation, Bender detected an odor of alcohol on Warner's breath. As a result of this observation, Bender asked Warner to step out of the truck and then noticed that Warner's eyes appeared to be bloodshot.

police car and was traveling north on State Street in Indianapolis. As Bender passed the first alley north of Prospect Street, he noticed a pickup truck parked in the alley and two young women proceeding down the street on foot. The young women yelled at Bender and pointed to the pickup truck. They said the man in the truck had attempted to pick them up and was bothering them.

Based on these observations, Bender asked Warner to take a field sobriety test commonly known as the finger-to-nose test. Warner performed this test with good results. Warner also submitted to a Portable Breathalizer Test. Based on the results of the Portable Breathalizer Test, Bender felt that he had probable cause to believe that Warner had been operating his truck under the influence of alcohol. Bender advised Warner of his Miranda rights and the Indiana Implied Consent Law ² and asked him if he would be willing to take another breath test. Warner agreed. So Bender transported him to the I.U.P.U.I. police station where a BAC Verifier Test was administered. The result of the BAC Verifier Test indicated that Warner had a blood alcohol content (BAC) of .23 percent.

Warner was charged by information with two counts of violating Indiana law. Count one charged Warner with operating a motor vehicle while intoxicated in violation of IC 9-11-2-2, a class A misdemeanor. Count two charged Warner with operating a vehicle with a BAC of greater than .10 percent in violation of IC 9-11-2-1 (Supp.1984), a class C misdemeanor.

Prior to trial, Warner moved that all evidence obtained subsequent to the investigatory stop be suppressed. The court denied this motion, and the evidence was admitted over Warner's continuing objection. The trial court heard the evidence and found Warner guilty of count one, operating a vehicle while intoxicated, a class A misdemeanor. Upon this finding, the court and the parties engaged in a discussion of the propriety of convicting Warner of both offenses. As a result, the court granted the State's motion to dismiss count two, the charge of operating his vehicle with a BAC of greater than .10 percent, a class C misdemeanor.

ISSUE

Whether the evidence was sufficient to sustain Warner's

conviction of driving while intoxicated? ³

DECISION

PARTIES' CONTENTIONS--Warner contends the evidence is insufficient to support his conviction of operating a motor vehicle while intoxicated because the State failed to prove an essential element of the crime, i.e., that he was operating his truck in an impaired condition.

Although the State concedes that it must present evidence of impairment to make a prima facie case of driving while intoxicated, it argues that proof of a BAC content of .10 percent or above satisfies this element of proof.

CONCLUSION--Proof of a BAC of .10 percent or above is not sufficient to establish that the driver was intoxicated as that term is defined by Ind.Code 9-11-1-5 (Supp.1984). Therefore, the State failed to prove an essential element of the crime of driving while intoxicated.

Warner was convicted of a violation of IC 9-11-2-2 which states: "A person who operates a vehicle while intoxicated commits a Class A misdemeanor." The Indiana legislature has specifically defined the term "intoxicated." IC 9-11-1-5 provides:

" 'Intoxicated' means under the influence of:

(1) alcohol;

(2) a controlled substance;

(3) any drug other than alcohol or a controlled substance; or

(4) any combination of alcohol, controlled substances, or drugs;

such that there is an impaired condition of thought and action and the loss of normal control of a person's faculties to such an extent as to endanger any person." (Emphasis supplied.)

Thus, it clearly appears that proof that the driver was operating his vehicle in an impaired condition is an essential element of the crime of operating a vehicle while intoxicated. Nevertheless, an ambiguity arises as a result of the language of Ind.Code 9-11-1-7 (Supp.1984) which provides: " 'Prima facie evidence of intoxication' includes evidence that at the time of an alleged violation there was ten-hundredths percent (.10%), or more, by weight of alcohol in the person's blood." The ambiguity occurs because the language of IC 9-11-1-7 would seem to eliminate the necessity for the State to present evidence of an impaired condition when it can present evidence of a BAC of .10 percent or above. We conclude, however, that such a construction of these statutes is untenable for a variety of reasons.

The statutes involved all relate to the same general subject matter. Thus, they are in pari materia and must be read and construed together to arrive at a harmonious result. Sanders v. State (1984), Ind., 466 N.E.2d 424; Isaac v. State (1982), Ind.App., 439 N.E.2d 1193. Another aid to statutory construction is the rule that we are bound to construe penal statutes strictly and must resolve any ambiguities against the State and in favor of the accused. Pennington v. State (1981), Ind., 426 N.E.2d 408; Gore v. State (1983), Ind.App., 456 N.E.2d 1030. Thus, the ambiguity created by IC 9-11-1-7 must be resolved in favor of a defendant charged with operating a vehicle while intoxicated because it is inconsistent with the statutory definition of intoxicated to establish guilt merely by proving a BAC of .10 percent or above without evidence of actual impairment. But there are other considerations supporting our conclusion.

In 1983, the legislature repealed Ind.Code 9-4-1-54 (1982), the relevant statute in this area, and enacted a new statutory scheme. See 1983 Ind. Acts Pub.L. No. 143-1983. In many respects, the repeal of IC 9-4-1-54 did little to change the law because many of the provisions of the repealed statute were simply reenacted in separate sections of the new law. For example, the classification of driving while intoxicated as a class A misdemeanor was carried over from IC 9-4-1-54(b) and now appears at IC 9-11-2-2; the definition of the term intoxicated currently codified at IC 9-11-1-5 is essentially a reenactment of the definition as it appeared in IC 9-4-1-54(a) (except that the new definition expanded its coverage to include "any drug," in addition to alcohol or controlled substances); and the concept that proof of a BAC of .10 percent or more constitutes prima facie evidence of intoxication was also carried over into IC 9-11-1-7 from IC 9-4-1-54(g)(1). Despite these similarities, the legislature did make one significant change in the law by its creation of an entirely new per se offense. IC 9-11-2-1 provides: "A person who operates a vehicle with ten-hundredths percent (.10%), or more, by weight of alcohol in his blood commits a Class C misdemeanor." The importance of the enactment of the per se offense lies in its relationship to the driving while intoxicated statute, the statute defining the term "intoxicated," and the prima facie evidence statute...