Appellant-defendant Michael C. Mullins appeals his conviction for operating a vehicle with at least ten-hundredths percent (.10%) by weight of alcohol in his blood, a Class C misdemeanor.
One issue raised by Mullins is dispositive of the appeal: whether the evidence is sufficient to sustain his conviction. A court reviewing the sufficiency of the evidence will neither weigh the evidence nor judge the credibility of the witnesses. The court will consider only the evidence most favorable to the verdict, together with all reasonable inferences therefrom. If substantial evidence of probative value exists from which a trier of fact could find guilt beyond a reasonable doubt, the judgment must be affirmed.
Johnson v. State
(1992), Ind.App.,
The statute under which Mullins was convicted provides, in pertinent part:
“(a) 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.”
IND.CODE § 9-80-5-1 (1991 Supp.). The evidence adduced at trial does not relate Mullins’ percentage of blood alcohol by weight. State’s Exhibit No. 3 is a “BAC DataMaster Evidence Ticket” which recorded a “BREATH ANALYSIS” of .20. The police officer testified that the test “results were .20 at 2:39, percent blood alcohol content.” Neither the “Evidence Ticket,” nor the officer’s testimony reveals the percentage by weight.
See Baran v. State (1993), Ind.App.,622 N.E.2d 1326 , 1327-1328, Rucker, J. dissenting, (absent evidence of percentage by weight, evidence insufficient to support verdict);
but see Dawn v. State (1993), Ind.App.,625 N.E.2d 1296 .
The State’s contention that the test results are implicitly by weight is unavailing. Penal statutes must be strictly construed against the State.
Spangler v. State
(1993), Ind.,
Therefore, the evidence is insufficient to support the conviction. The judgment of conviction is reversed.
Reversed.