MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Apr 18 2018, 10:26 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew M. Kubacki Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Manuel Garcia, April 18, 2018
Appellant-Defendant, Court of Appeals Case No.
49A05-1710-CR-2277
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy M. Jones,
Appellee-Plaintiff Judge
The Honorable David Hooper,
Magistrate
Trial Court Cause No.
49G08-1611-CM-44430
Altice, Judge.
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Case Summary
[1] Following a bench trial, Manual Garcia was convicted of operating a vehicle
with an alcohol concentration equivalent (ACE) of at least .08 but less than .15,
a Class C misdemeanor, and driving while suspended, a civil infraction. On
appeal, Garcia argues that the State presented insufficient evidence to support
his operating conviction.
[2] We affirm.
Facts & Procedural History
[3] At approximately 3:11 a.m. on November 12, 2016, IMPD Officer Duran
Brown was dispatched to the scene of a single vehicle accident in the 2200 block
of south Meridian Street. When he arrived at the scene less than ten minutes
later, Officer Brown observed a vehicle that had crashed into a light pole and
had significant damage. He made contact with the driver, later identified as
Garcia, to ascertain whether Garcia was injured. The fire department and
medics arrived at the scene less than five minutes after Officer Brown. Garcia
was extricated from the car and placed in an ambulance to be taken to the
hospital for treatment of his injuries. When Officer Brown spoke with Garcia
after he was placed in the ambulance, he noted an odor of alcoholic beverage
on Garcia’s breath and that Garcia had red, glassy eyes.
[4] Another officer at the scene read Garcia his Miranda warnings, and Garcia
stated that he understood. When questioned, Garcia stated that he had been at
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a friend’s house and had consumed alcoholic beverages that evening and that
he had consumed his last drink at approximately 2:00 a.m. A portable breath
test was administered to Garcia, after which Officer Brown read to him
Indiana’s implied consent law, which he followed up with a description of the
implied consent law in layman’s terms. Garcia stated that he understood and
consented to a blood draw, which was performed at Eskenazi Hospital by a
registered nurse at approximately 4:17 a.m. The results of the chemical test
were analyzed by the Marion County Crime Lab and indicated an ACE of .105
grams per one hundred milliliters of blood tested.
[5] On November 16, 2016, the State charged Garcia with Count I, operating a
vehicle while intoxicated endangering a person, a Class A misdemeanor; Count
II, operating a vehicle with an ACE of .08 or greater, a Class C misdemeanor;
and Count III, driving while suspended, a civil infraction. A bench trial was
held on September 8, 2017. At the conclusion of the evidence, the trial court
granted Garcia’s motion for a directed verdict as to Count I and found Garcia
guilty of Counts II and III. Garcia now appeals. Additional facts will be
provided as necessary.
Discussion & Decision
[6] To convict Garcia of operating with an unlawful blood-alcohol concentration,
the State was required to prove that his ACE was .08 or higher at the time he
operated a vehicle. See Ind. Code § 9-30-5-1(a)(1). Provided that the State
presented evidence to establish that a certified chemical test was administered
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within three hours after the arresting officer had probable cause to believe the
person operated the vehicle while intoxicated, the trier of fact is entitled to
presume that the defendant’s ACE equaled the result of the chemical test. In
challenging the sufficiency of the evidence in support of his conviction under
Count II, Garcia argues that the State was not entitled to rely on the statutory
presumption because the State failed to establish that his blood test was
administered within three hours of the accident.
[7] When we consider a challenge to the sufficiency of the evidence, we neither
reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,
51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and
reasonable inferences supporting the conviction. Id. We will affirm the
conviction if there is probative evidence from which a the trier of fact could
have found the defendant guilty beyond a reasonable doubt. Id.
[8] Ind. Code § 9-30-6-15(b) provides:
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 an alcohol
concentration equivalent to at least eight-hundredths (0.08)
gram of alcohol per:
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(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;
the trier of fact shall presume that the person charged with the
offense had an alcohol concentration equivalent to at least eight-
hundredths (0.08) gram of alcohol per one hundred (100)
milliliters of the person’s blood . . . at the time the person
operated the vehicle. However, this presumption is rebuttable.
The chemical test administered “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.” I.C. § 9-30-6-2(c).
[9] Garcia’s argument that the State did not prove that the blood test was
administered within three hours of the accident is simply a request to reweigh
the evidence, a task this court will not undertake on appeal. Here, the State
presented evidence that Garcia admitted to having been at a friend’s house and
to having had his last alcoholic drink at about 2:00 a.m. Officer Brown was
dispatched to the accident scene at 3:11 a.m., where he found Garcia trapped in
his vehicle. The blood draw was performed at 4:17 a.m. From this evidence, a
reasonable inference can be drawn that Garcia had been at one location and
that he had to have driven his vehicle to then wreck it into a utility pole.
Officer Brown found Garcia trapped in his vehicle about an hour after Garcia
admitted to having had his last drink. About an hour after that, Garcia had his
blood drawn. This is sufficient circumstantial evidence that Garcia operated his
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vehicle within the statutory presumption’s three-hour limit. The trier of fact
was therefore entitled to rely on the presumption that Garcia operated his
vehicle with an ACE of .105 as indicated by the results of the blood test.
[10] Judgment affirmed.
[11] Najam, J. and Robb, J., concur.
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