*1 571 Carter, Gen., Atty. Pamela Preston W. Black, Gen., Deputy Atty. Indianapolis, Jeffrey NASSER, Appellant-Defendant, for appellee. v. SULLIVAN, Judge. Indiana, Appellee. of
STATE Jeffrey appeals Nasser his conviction of No. 49A02-9206-CR-283. Operating a Vehicle with at least ten-hun (10%) Indiana, percent by Weight dredths of Appeals of of Alcohol Court Blood, Second District. in the a Class C misdemeanor.1 The dispositive upon appeal issue is whether the 17, March 1994. supports judgment. evidence the reverse.
We brief, In early the facts reveal that in the 14, 1990, morning hours of November Nasser driving was northbound on Meridian Street dining drinking after in and downtown India- napolis. parked Nasser struck three cars path when a vehicle forcing swerved into his him to the During side of the road. the investigation, accident Officer Julie Schiff appeared noted that Nasser intoxicated. Af- tests, administering sobriety ter field Schiff transported headquarters. to IPD Nasser There, completed Intoxilyzer Nasser an 5000 printout Breath Test. The test in resulted a showing: "BAC Value" of ".14". Record at 202. provided:
Indiana Code 9-11-2-1 "A person operates who a vehicle with ten-hun [.10%], more, percent dredths by weight or of alcohol in his blood commits a class C misde (Emphasis supplied). meanor." Unless the puts State forth evidence of the amount of blood, by weight person's aleohol in a a con viction for this offense cannot stand. Melton (1992) Ind.App., v. State 4th Dist. 597 N.E.2d 359, trans. denied. (1993)
In Baran v. State
5th Dist. Ind.
(Rucker, J.,
App.,
Here, the State introduced the results However, Intoxilyzer of the test. the State reported did not introduce evidence that the percentage a value was or that it was a Paul, Symmes III by weight J.J. Ober of in Cardwell measurement alcohol Nas Baran, Zahn, Voyles Indianapolis, & appellant. supra, for ser's 622 at blood. N.E.2d (Burns Ed.1987) (recodi- (Burns Ed.1991)). 1. I.C. 9-11-2-1 Code fied as I.C. 9-30-5-1 Code 572 *2 not did counsel Although Nasser's 1327. value, reported the relevancy of the question Baran, inquiry supra, such in counsel as did It is defense. Nasser's to requisite not a
is upon case based its build to task State's the Having charged. offense the of the elements support can not so, evidence the do failed to judgment.
the re- court is trial the of judgment
The
versed. J.,
FRIEDLANDER, concurs. opinion.
RUCKER, J., with dissents dissenting.
RUCKER, Judge, reasons the same for dissent respectfully I (1993), Ind. v. State Baran in
I dissented 1326. N.E.2d 622
App., SERVICES, FINANCIAL
FIDELITY
INC., Appellant-Plaintiff,
v. Sims, Murphy SIMS, Ernestine A.
John Suljagic, Suljagic, Charmaine Marko Service, Inc., of Board and
Auto Sales County, City of Marion Commissioners Public Department of Indianapolis,
of County, Trea
Works, of Marion Auditor County of and Assessor Marion
surer of County, Appellees-Defendants.
Marion 49A02-9306-CV-263.
No. Indiana, of Appeals of
Court District.
Third 21, 1994.
March