FILED
Jan 18 2017, 8:27 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jerry T. Drook Curtis T. Hill
Marion, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Elberta N. Jackson, January 18, 2017
Appellant-Defendant, Court of Appeals Case No.
27A02-1607-CR-1717
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Warren Haas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D03-1601-CM-13
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Elberta N. Jackson (Jackson), appeals her conviction for
operating a vehicle with an alcohol concentration equivalent (ACE) to at least
0.15, a Class A misdemeanor, Ind. Code § 9-30-5-1(b)(1); resisting law
enforcement, a Class A misdemeanor, I.C. § 35-44.1-3-1(a)(1); and disorderly
conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a)(2).
[2] We affirm.
ISSUES
[3] Jackson raises two issues on appeal, which we restate as follows:
(1) Whether the State presented sufficient evidence to support Jackson’s
conviction for operating a vehicle with an ACE to at least 0.15 beyond a
reasonable doubt; and
(2) Whether Jackson’s due process rights were violated by the imposition of a
two-year administrative driver’s license suspension.
FACTS AND PROCEDURAL HISTORY
[4] At 1:10 a.m. on January 19, 2016, officers from the Marion Police Department
were dispatched to the Maplewood Trailer Court, located at 1515 South Miller
Avenue in Marion, Grant County, Indiana, based on a report that a vehicle had
struck a residence. At least four police officers responded to the scene,
including Officer George Kilgren (Officer Kilgren) and Officer Joshua Swanson
(Officer Swanson). Upon arrival, the officers observed that an older model
silver Buick had crashed into one of the trailers, causing significant damage to
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both the vehicle and the home. Fortunately, although the residents were home
at the time of the crash, nobody inside the trailer was injured.
[5] At the time, Jackson was standing in the yard and was visibly irate. Even
though Jackson was screaming and swearing, Officer Kilgren was able to
discern through her rantings that she had been driving the Buick when her
passenger suddenly reached over and jerked the wheel, causing them to leave
the roadway and smash into the trailer. Officer Swanson opened the passenger-
side door, where Jackson’s passenger was still sitting. The passenger informed
Officer Swanson that she could not feel her legs or hips, so Officer Swanson
comforted her until emergency medical personnel arrived. Meanwhile, Jackson
continued to act belligerently toward the officers, despite numerous warnings to
quiet down.
[6] As Jackson threatened and insulted the officers and her passenger, Officer
Kilgren detected the odor of alcohol on her breath. When questioned, Jackson
admitted that she and her passenger had been at a party, where she had
consumed “a couple drinks.” (Tr. p. 18). Officer Kilgren asked Jackson to
submit to a portable breathalyzer test, but Jackson refused. Officer Kilgren
advised Jackson of Indiana’s implied consent law, but Jackson still refused and
continued to scream. As a result, the officers advised Jackson that she was
being arrested. Jackson struggled and flailed as both Officer Kilgren and
Officer Swanson attempted to place her in handcuffs, and, because she refused
to walk to the squad car, the officers were forced to drag her.
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[7] Based on Jackson’s refusal to submit to a portable breathalyzer test, Officer
Kilgren applied for a search warrant to obtain a sample of her blood. The
warrant was granted at 2:35 a.m., and a phlebotomist at Marion General
Hospital completed the blood draw at 3:14 a.m. The Indiana State Department
of Toxicology tested the blood sample and determined that Jackson’s ACE was
0.183.
[8] The same day, the State filed an Information, charging Jackson with Count I,
operating a vehicle while intoxicated in a manner that endangers a person, a
Class A misdemeanor, I.C. § 9-30-5-2(b); Count II, resisting law enforcement, a
Class A misdemeanor, I.C. § 35-44.1-3-1(a)(1); and Count III, disorderly
conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a)(2). On January 29, 2016,
the State charged Jackson with Count IV, criminal mischief, a Class B
misdemeanor, I.C. § 35-43-1-2(a). On June 28, 2016, the State amended Count
I of the Information to charge Jackson with operating a vehicle with an ACE to
at least 0.15, a Class A misdemeanor, I.C. § 9-30-5-1(b)(1).
[9] On June 29, 2016, the trial court conducted a bench trial. At the close of the
evidence, the trial court found Jackson guilty of Counts I, II, and III, but not
guilty of Count IV. Accordingly, the trial court entered a judgment of
conviction for operating a vehicle with an ACE to at least 0.15 as a Class A
misdemeanor, resisting law enforcement as a Class A misdemeanor, and
disorderly conduct as a Class B misdemeanor. Thereafter, the trial court
imposed concurrent sentences of 200 days, 180 days, and 180 days,
respectively. In addition, the trial court ordered the suspension of Jackson’s
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driving privileges “for 182 [d]ays consecutive to the administrative suspension
for chemical test refusal on [Jackson’s] driving record ending on January 19,
2018.” (Appellant’s App. Vol. II, p. 29). On July 1, 2016, the trial court issued
an Amended Judgment of Conviction and Sentencing Order Including License
Suspension, which removed any reference to Jackson’s driver’s license
suspension.
[10] Jackson now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
[11] Jackson claims that the State presented insufficient evidence to prove that her
blood alcohol level—i.e., ACE—was at least 0.15 at the time she operated her
vehicle. 1 In reviewing a challenge to the sufficiency of the evidence, it is well
established that our court neither reweighs evidence nor assesses the credibility
of witnesses. Jarrell v. State, 852 N.E.2d 1022, 1028 (Ind. Ct. App. 2006). We
will affirm the conviction so long as “there is substantial evidence of probative
value supporting each element of the crime from which a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt.” Id. It is the
role of the fact-finder to decide “whether the evidence in a particular case
1
Jackson does not challenge the sufficiency of the evidence supporting her convictions for resisting law
enforcement and disorderly conduct.
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sufficiently proves each element of an offense, and we consider conflicting
evidence most favorably to the fact-finder’s determination.” Id.
[12] In order to convict Jackson of a Class A misdemeanor, the State was obligated
to prove that she “operate[d] a vehicle with an [ACE] to at least fifteen-
hundredths (0.15) gram of alcohol per: (1) one hundred (100) milliliters of the
person’s blood; or (2) two hundred ten (210) liters of the person’s breath.” I.C.
§ 9-30-5-1(b). In this case, the results of Jackson’s blood draw indicated that her
ACE was 0.183—well above the statutory threshold. Nevertheless, Jackson
insists that the State failed to prove that her ACE was at least 0.15 at the time
she operated her vehicle because the State offered no evidence that the blood
draw was completed within the requisite period of time.
[13] Indiana Code section 9-30-6-15(b) provides:
If, in a prosecution for an offense under [Indiana Code chapter]
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 an [ACE] to at least
eight-hundredth (0.08) gram of alcohol per:
(A) one hundred (100) milliliters of the person’s blood at
the time the test sample was taken; or
(B) two hundred ten (210) liters of the person’s breath;
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the trier of fact shall presume that the person charged with the
offense had an [ACE] to at least eight-hundredths (0.08) gram of
alcohol per one hundred (100) milliliters of the person’s blood or
per two hundred ten (210) liters of the person’s breath at the time
the person operated the vehicle. However, this presumption is
rebuttable.
Although this statute specifically refers to an ACE of at least 0.08, our court has
previously stated that the same concept applies in situations concerning higher
blood alcohol levels because “the parallel use of the phrase ‘at least’ indicates
that a timely [ACE] test result permits a presumption that the defendant had an
identical [ACE] at the time he or she was driving.” Jarrell, 852 N.E.2d at 1029.
The blood or breath test “must be administered within three (3) hours after the
law enforcement officer had probable cause to believe the person committed an
offense under [Indiana Code chapter] 9-30-5.” I.C. § 9-30-6-2(c). 2 Thus, if
there is proof that the chemical test occurred within three hours of the accident
(i.e., the time Jackson last operated her vehicle), the trial court, as the fact-finder
in this case, was presumably entitled to relate Jackson’s ACE at the time of the
blood draw back to the time of the accident. See Mannix v. State, 54 N.E.3d
1002, 1009 (Ind. Ct. App. 2016).
2
If a chemical test is not administered within the three-hour window, the “test results are still admissible to
prove blood alcohol at the time of a violation if the State produces additional evidence of such [ACE] by
means of extrapolation.” Allman v. State, 728 N.E.2d 230, 234 (Ind. Ct. App. 2000) (internal quotation marks
omitted).
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[14] It is undisputed that Jackson’s blood was drawn at 3:14 a.m. and her ACE was
0.183. Thus, in order for the State to rely on the statutory presumption that her
ACE was 0.183 at the time she last operated her vehicle, it must show that the
accident occurred no later than 12:14 a.m. Here, the evidence establishes that
the police officers were dispatched to the scene at 1:10 a.m.; however, Jackson
posits that there is no evidence to prove what time the accident actually
occurred. Jackson relies on Mordacq v. State, 585 N.E.2d 22, 23 (Ind. Ct. App.
1992), where, at approximately 2:30 a.m., an officer observed a vehicle parked
alongside the road with its engine running. An hour later, the officer returned
to find that the vehicle was still there, and the defendant was asleep in the
driver’s seat. Id. After rousing the defendant and smelling alcohol on her
breath, the police officer administered a breathalyzer test at 3:55 a.m., which
demonstrated that the defendant had a blood alcohol level of 0.10. Id. Other
than the defendant’s own estimate that she had parked her vehicle along the
street at least two hours earlier, there was no evidence indicating whether she
had operated the vehicle within the three hours preceding the breathalyzer test.
Id. Accordingly, we held that the “State’s failure to prove the time [the
defendant] 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.” Id. at 27.
[15] A few years after Mordacq, our court reached a similar conclusion in Allman,
728 N.E.2d at 230. There, a police officer was dispatched to a car accident at
approximately 10:00 p.m. Id. at 231. When the officer arrived, he observed a
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driver sitting in her vehicle off the side of the road, but no other vehicles or
people were nearby. Id. The officer detected an odor of alcohol on the driver’s
breath; following two invalid breathalyzer tests, the driver’s blood was drawn at
12:28 a.m. and revealed a blood alcohol level of 0.104. Id. Although the
defendant’s blood was drawn within three hours of the police dispatch, the
statutory presumption was inapplicable because there was no evidence
regarding when the accident occurred in order to relate the blood alcohol level
back to the time of the accident. Id. at 234.
[16] While there are factual similarities among these cases and the current case, we
find that the circumstantial evidence present in the case at bar readily
distinguishes it from Mordacq and Allman. In both Mordacq and Allman, an
officer responded to a parked vehicle where there were no other witnesses, and
there were no other facts from which it could be inferred that the drivers had
operated their vehicles within the necessary timeframe. Conversely, Jackson
crashed her vehicle into an occupied residence, causing substantial damage to
the trailer and her vehicle. When the police officers arrived, Jackson had
already exited the vehicle, but her passenger was still sitting in the front seat
with the door shut, complaining of possible paralysis. It is undisputed that
Jackson had been operating the vehicle at the time of the accident, and the
police officers were dispatched at 1:10 a.m. It defies all notions of
reasonableness to hypothesize—given the presence of the homeowners, the
severity of the damage done to their trailer and Jackson’s vehicle, and the
potentially serious injuries of Jackson’s passenger—that nearly an hour would
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have passed between the time of the accident and the summoning of the police
(as the accident must have occurred no later than 12:14 a.m. in order for the
statutory presumption to apply). Our role on appeal is to consider “the
probative evidence supporting the judgment and the reasonable inferences that
may be drawn [therefrom],” and here we find that it may be reasonably inferred
from the evidence that Jackson operated her vehicle within the three hours
preceding the blood draw. Dorsett v. State, 921 N.E.2d 529, 531 (Ind. Ct. App.
2010). Accordingly, we affirm Jackson’s conviction for operating with an ACE
to at least 0.15.
II. Due Process
[17] Jackson also claims that her due process rights were violated because she
received a two-year driver’s license suspension with “no notice from the State,
either through a charging information or an infraction ticket, that she would
possibly be found to have violated [Indiana Code section 9-30-7-5] during this
bench trial, or that she risked the imposition of a two-year license suspension
prior to trial or even during the trial.” (Appellant’s Br. pp. 14-15). 3 More
specifically, Jackson contends that
[t]he court had no authority to impose a penalty for an uncharged
refusal infraction violation, and in doing so, the court denied
3
The State points out that Jackson has waived any due process claim by failing to object to the license
suspension or raise such a due process argument at the time of her sentencing. It is well established that a
claim may not be raised for the first time on appeal. See King v. State, 799 N.E.2d 42, 47 (Ind. Ct. App. 2003),
trans. denied; cert. denied, 543 U.S. 817 (2004). Moreover, the record reveals that Jackson specifically
acknowledged to the trial court that “there’s gonna be a two (2) year administrative suspension.” (Tr. p. 79).
Nevertheless, waiver notwithstanding, we will address the merits of Jackson’s claim.
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Jackson’s due process rights under the U.S. Constitution,
amendments V and XIV, and the Indiana Constitution under
Section 13 which holds that the accused shall have the right . . . to
demand the nature and cause of the accusation against him, and to have
a copy thereof, and ultimately prejudiced Jackson [sic] substantial
rights.
(Appellant’s Br. pp. 15-16) (alteration in original). We find no merit in
Jackson’s claim.
[18] Jackson’s reliance on Indiana Code section 9-30-7-5 is entirely misplaced
because it governs the refusal to submit to a chemical test following an accident
that results in serious injury or death. In such a situation, the refusal to submit
to a portable breath test or chemical test is a Class C infraction (or a Class A
infraction if the person has a prior operating while intoxicated conviction), and
the court is required to suspend the individual’s driver’s license for a period of
one or two years. I.C. § 9-30-7-5(a)-(b). On the other hand, because Jackson
refused to submit to a chemical test following a law enforcement officer’s belief
that she had committed the crime of operating with an ACE to at least 0.15,
Jackson’s case is governed by Indiana Code chapter 9-30-6.
[19] “A person who operates a vehicle impliedly consents to submit to [a] chemical
test . . . as a condition of operating a vehicle in Indiana.” I.C. § 9-30-6-1.
When a law enforcement officer has probable cause to believe that a person has
committed the offense of operating while intoxicated (i.e., operating with an
ACE to at least 0.15), the officer “shall offer the person the opportunity to
submit to a chemical test.” I.C. § 9-30-6-2(a). If the individual refuses to
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submit to a chemical test, the law enforcement officer is required to “inform the
person that refusal will result in the suspension of the person’s driving
privileges.” I.C. § 9-30-6-7(a). If, after being warned of the consequences of
refusing to submit to a chemical test, the person continues to refuse, the
arresting officer must confiscate the person’s driver’s license and submit a
probable cause affidavit to the prosecuting attorney. I.C. § 9-30-6-7(b). This
affidavit must set forth the grounds for probable cause that the individual was
operating while intoxicated and specify that the individual refused to submit to
a chemical test when offered. I.C. § 9-30-6-8(b). Thereafter, if the trial court
determines that there is probable cause that the individual violated the
operating while intoxicated statute, the clerk of the court shall forward a copy
of the probable cause affidavit to the Bureau of Motor Vehicles (BMV). I.C. §
9-30-6-8(a).
[20] Accordingly, contrary to Jackson’s claim, her refusal to submit to a chemical
test was not a separate, chargeable infraction for which she was entitled to any
notice. Rather, she received notice from Officer Kilgren that her refusal to
submit to a chemical test when offered would result in a license suspension, and
Indiana Code section 9-30-6-9(b) required the BMV to automatically suspend
Jackson’s driving privileges. As the trial court noted during Jackson’s
sentencing, she was convicted of operating while intoxicated in 2007. Based on
this prior conviction, the BMV was obligated to suspend Jacksons’ driver’s
license for a period of two years. I.C. § 9-30-6-9(b)(1)(B). Following its
suspension of Jackson’s license, the BMV was required to mail notice of the
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suspension to Jackson and advise her of her right to judicial review under
Indiana Code section 9-30-6-10. It appears that Jackson opted not to avail
herself of this statutory remedy for challenging the administrative suspension of
her license. Therefore, we find that Jackson’s due process rights were not
violated.
CONCLUSION
[21] Based on the foregoing, we conclude that there is sufficient evidence to support
Jackson’s conviction for operating a vehicle with an ACE to at least 0.15, and
we further conclude that Jackson’s due process rights were not violated.
[22] Affirmed.
[23] Crone, J. and Altice, J. concur
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