Mordacq v. StateMordacq v. State
- Reporters:
- , ,
- Before:
- Barteau
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 Mor-dacq, 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 Mor-dacq a summons for operating while intoxicated, Ind.Code 9-30-5-2, later amended by information to operating with at least .10% BAC,
DISCUSSION
Mordacq was convicted of “operat[ing] a vehicle with at least ten-hundredths percent (0.10%) by weight of alcohol....”
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 Mor-dacq was not operating her vehicle within the meaning of
We turn now to the question whether the evidence was sufficient in regard to Mor-dacq’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-l].”). Now, however, the State can avail itself of a statutory presumption enacted in 1987 as
(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
(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
The case at bar presents conceptual difficulties not present in
Livingston,
where operation of the vehicle and probable cause were essentially simultaneous, and the chemical test was administered soon enough that undisputably both operation of the vehicle and an officer’s formation of probable cause fell within the three-hour limit. Here, because Mordacq operated the vehicle some hours before Rozzi had probable cause, a question arises as to the application of
The State’s theory in the case at bar appears to be that Mordacq’s admission of having driven to 7th St. prior to her encounter with Rozzi, combined with her BAC of .10% at 3:55 a.m., sufficed to prove a violation of
Both parties seem to assume that if a chemical test can presumptively relate back to an act of operating a vehicle that occurred before an officer encountered the defendant, then there is a three-hour limit to the relation back. In other words, the parties assume that a chemical test administered at 3:55 a.m. relates back to vehicle operation at 12:55 a.m. or later, but not to operation before 12:55 a.m. We agree with this assumption, although it is possible to read the statutes another way.
In order to relate back by presumption the 3:55 a.m. BAC, the State needed to prove that Mordacq operated her vehicle after 12:55 a.m. We hold that the evidence was insufficient to prove this fact beyond a reasonable doubt. Apart from Mordacq’s admission to Rozzi, there was no evidence as to when she drove to 7th St. State’s exhibit 4 showed the “time first observed” to be 3:33 a.m. Rozzi testified Mordacq told him, during the first moments of their encounter, that is, within a few minutes of 3:33 a.m., that she had been parked for “at least two hours.” This evidence does create the possibility that Mordacq operated after 12:55. However, it is unreasonable to infer from admitted operation “at least two hours” ago proof beyond a reasonable doubt of operation “not more than two hours and thirty-eight minutes” ago. As a result, the presumption of
The concurring opinion in Hiegel endorses a policy that “[i]f a defendant leaves an establishment where he has consumed alcoholic beverages to excess and feels that he should not proceed to endanger the life and property of others by operating his motor vehicle, he should be commended for using good judgment.” 538 N.E.2d at 268. Our holding here conforms with that viewpoint. The State’s failure to prove the time Mor-dacq operated her vehicle, to a degree precise enough to trigger a statutory presumption that incorporates a precise time limit, precludes evidentiary use of the presumption. There being no other evidence, the conviction must be
REVERSED.
SHARPNACK and STATON, JJ., concur.
Notes
. Mordacq was charged under Ind.Code 9-11-2-1. That statute has been renumbered
. From the transcript of the trial judge’s remarks upon the verdict of guilty, we cannot determine whether the judgment below was based on the State’s relation back theory, or upon a finding that Mordacq was “operating” the vehicle when accosted by Rozzi. The relation back question raised by the factual posture of this case, that is, a defendant asleep in a parked car, and therefore not then operating the vehicle, differs from those indicating that sleep was not a conscious choice, but rather an inadvertent effect of alcohol ingestion, as in
Rose
and
Traxler.
In the
Rose
scenario, the defendant is deemed to be operating the vehicle when discovered by the officer, and the officer’s ideation of probable cause will coincide with the defendant’s operation. Assuming that the officer will have noted the time at which investigation yielded probable cause of a violation of
We have found no case analyzing whether the presumption relates back to a prior act of operating the vehicle. In Chilcutt v. State (1989), Ind.App., 544 N.E.2d 856 officers dispatched to the scene of an accident observed the defendant lying beside an overturned truck. The defendant admitted driving the vehicle, and a chemical test revealed .17% BAC. The court held the evidence was sufficient to prove the defendant operated the vehicle with at least .10% BAC. The only reference to time in the opinion states the test was administered “within the specified period of time.” Id. at 858.
. The following excerpt from the cross-examination of Rozzi illustrates the quality of proof adduced at trial:
Q. She said that-she had driven there at least two or maybe more hours before, correct? She wasn‘t real clear on the time?
A. Something like that.
Q. She wasn‘t real clear on the time?
A. Yeah.
Q. And, ah, you have no knowledge that she had driven the car at any time after those two hours?
A. I had not seen her drive the car, no.
Q. And you have no knowledge that she had driven any time after she got to that scene and parked the car?
A. I had not seen her driven [sic], I did not see her drive the car. Record at 88.
Mordacq testified in her defense. Her testimony indicated that the time she drove to 7th St. was “closer to midnight” than to 1:30 a.m. However, we do not weigh the evidence. Our decision the evidence is insufficient is based only on the evidence presented by Rozzi, of operation “at least two hours” before 3:33 a.m.
This case differs from
Smith v. State
(1989), Ind., 547 N.E.2d 845,
reh‘g denied,
in which the supreme court set aside an opinion of this court reversing a conviction for operating while intoxicated due to lack of proof of the defendant’s BAC at the time he operated the vehicle. Eyewitness testimony proved the time the vehicle was operated. The defendant was tested some three hours later, after being found at home, asleep, and recorded a BAC well over .10%. The presumption of