Brittanie R. Corbin v. State of Indiana

FILED
Oct 31 2018, 9:53 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marc Lopez Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Brittanie R. Corbin, October 31, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-12
v. Appeal from the Montgomery
Superior Court
State of Indiana, The Honorable Peggy Q. Lohorn,
Appellee-Plaintiff. Judge
Trial Court Cause No.
54D02-1704-CM-1083

Riley, Judge.

Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018 Page 1 of 21
 STATEMENT OF THE CASE
[1] Appellant-Defendant, Brittanie Corbin (Corbin), appeals her conviction for

operating a vehicle with an alcohol concentration equivalent (ACE) of 0.15 or

more, a Class A misdemeanor, Ind. Code § 9-30-5-1(b) (2017). 1

ISSUES
[2] Corbin presents two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion in admitting certain evidence;

and

(2) Whether the State presented sufficient evidence beyond a reasonable doubt

to support Corbin’s conviction for operating a vehicle with an ACE of 0.15

or more.

FACTS AND PROCEDURAL HISTORY
[3] On April 8, 2017, at approximately 11:36 p.m., two deputy sheriffs with the

Montgomery County Sherriff’s Department, Mathew Riddle (Deputy Riddle)

and Ethan Redmon (Deputy Redmon), received a dispatch concerning a

“disabled vehicle eastbound on I-74.” (Transcript Vol. II, p. 15). The deputies

arrived at the scene at approximately 11:43 p.m. and observed a “silver Chevy

Cobalt on the right-hand shoulder.” (Tr. Vol. II, p. 16). Deputy Riddle

1
We held oral argument on October 9, 2018, at the Winchester Community High School, Winchester,
Indiana. We commend counsel for their excellent presentations and thank Winchester Community High
School for their hospitality in hosting this oral argument.

Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018 Page 2 of 21
 approached the vehicle from the driver’s side, and Deputy Redmon advanced to

the opposite side. Corbin was in the driver’s seat, and there was a male

passenger, “Alexander,” in the front passenger seat. (Tr. Vol. II, p. 14).

Deputy Riddle asked Corbin where she was coming from, and Corbin stated

that “she was coming from a friend’s wedding” and “was driving back to her

Indianapolis area address.” (Tr. Vol. II, p. 10). While talking to Corbin,

Deputy Riddle observed that Corbin had “red glassy eyes and slow . . . slurred

speech.” (Tr. Vol. II, p. 8). Based on his observation, Deputy Riddle formed

an opinion that Corbin was “under the influence of either drugs or alcohol.”

(Tr. Vol. II, p. 8). Deputy Riddle consequently asked Corbin if she had drunk

alcohol, and Corbin admitted that she “had.” (Tr. Vol. II, p. 10). At that point,

the deputies ordered Corbin and Alexander to exit the vehicle. Deputy Riddle

observed that Corbin was “uneasy on her feet” and Corbin held onto Alexander

“to keep her balance.” (Tr. Vol. II, p. 11). Deputy Riddle began talking with

Alexander, and after obtaining consent from Alexander, he tried to see if he

“could get the vehicle running.” (Tr. Vol. II, p. 11). While Alexander “looked

under the hood to see if he could find the issue,” Deputy Riddle attempted to

“start the vehicle,” but the vehicle was “inoperable.” (Tr. Vol. II, p. 14).

[4] In the meantime, Deputy Redmon summoned Corbin to the side of the car in

order to talk to her. As he was interacting with Corbin, Deputy Redmon

observed that Corbin had “red blood[-]shot eyes and was unsteady on her feet.”

(Tr. Vol. II, p. 18). Corbin also emanated “an overwhelming odor of alcohol.”

(Tr. Vol. II, p. 18). Based on his “training and experience,” Deputy Redmon

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 formed the opinion that Corbin was “under the influence of a drug or alcohol.”

(Tr. Vol. II, p. 18). Deputy Redmon asked Corbin “how much” alcohol she

had consumed, and Corbin stated, “maybe a glass or two” of “wine” at about

“10:00-10:30” p.m. (State’s Exh. 1 at 0:20-0:28). Implying that she was not

intoxicated, Corbin continued, “you can check me if you want. I don’t care.”

(State’s Exh. 1 at 0:25). Deputy Redmon quickly responded, “Yep. We just

want to make sure you are okay to drive, and we will figure out your car

situation.” (State’s Exh. 1 at. 0:26). Shortly thereafter, Deputy Redmon

walked back to his vehicle to retrieve something. When he returned, Deputy

Redmon informed Corbin that he was going to conduct some tests “just to

make sure she was okay to drive.” (State’s Exh. 1 at 1:47).

[5] Deputy Redmon administered a horizontal gaze nystagmus, a field sobriety

test, in which Corbin “showed signs of being under the influence of either a

drug or alcohol.” (Tr. Vol. II, p. 21). Doubting Corbin’s first response that she

had drunk two glasses of wine, again, Deputy Redmon asked Corbin, “have

you only had two glasses?” (State’s Exh. 1 at 4:00). Corbin responded, “Yeah.

. . . it feels like three maybe . . . I haven’t had many.” (State’s Exh. 1 at 4:00).

At that point, Deputy Redmon administered a breathalyzer test, which

determined that Corbin was intoxicated.

[6] Because Corbin had failed the administered tests, Deputy Redmon concluded

that he had probable cause to arrest Corbin for operating a vehicle while

intoxicated and he read Corbin the Indiana Implied Consent Law, which

requires the officer to offer the suspect a certified chemical test. Corbin

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 consented. Corbin was then handcuffed and transported to Montgomery

County Jail. Corbin cried “throughout” her transportation to jail. (Tr. Vol. II,

p. 29). At approximately 12:20 a.m., Deputy Redmon administered Corbin’s

chemical breath test. Prior to administering the test, Deputy Redmon ensured

that Corbin had not eaten, drunk, smoked, or put any foreign objects in her

mouth. The test revealed that Corbin had 0.152 grams of alcohol per 210 liters

of breath.

[7] On April 19, 2017, the State filed an Information, charging Corbin with Count

I, operating a vehicle with an ACE of 0.15 or more, a Class A misdemeanor

and Count II, operating a vehicle while intoxicated, a Class C misdemeanor.

On December 5, 2017, a bench trial was conducted. At the end of Corbin’s

bench trial, the trial court found her guilty of Count I, operating a vehicle with

an ACE of 0.15 or more, a Class A misdemeanor; however, it dismissed Count

II. On the same day, the trial court held a sentencing hearing and sentenced

Corbin to a term of 180 days, all which, except time served, was suspended to

probation.

[8] Corbin now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION
I. Admission of the Evidence

[9] The admission or exclusion of evidence falls within the sound discretion of the

trial court, and its determination regarding the admissibility of evidence is

reviewed on appeal only for an abuse of discretion. Wilson v. State, 765 N.E.2d

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 1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial court’s

decision is clearly against the logic and effect of the facts and circumstances

before the court. Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012).

[10] Corbin argues that the trial court should have granted her motion to suppress

the statements she made to the deputies prior to her arrest. We note that once a

case proceeds to trial, the question of whether the trial court erred in denying a

motion to suppress is no longer viable. Baird v. State, 854 N.E.2d 398, 403 (Ind.

Ct. App. 2006), trans. denied. Instead, we review whether the trial court erred in

admitting the evidence at trial. Id.

A. Miranda

[11] Corbin contends that while being questioned by deputies about drinking alcohol

after she displayed signs of intoxication, the interrogation was custodial in

nature and she should have been advised of her rights under Miranda v. Arizona,

384 U.S. 436, 444 (1966).

In Miranda [] the United States Supreme Court held that the
prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. These
procedural safeguards include an advisement to the accused that
he has the right to remain silent, that anything he says can be
used against him, that he has the right to an attorney, and that if
he cannot afford an attorney one will be appointed for him.
However, these warnings are only required where a suspect is
both in custody and subjected to interrogation.

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 State v. Necessary, 800 N.E.2d 667, 669-70 (Ind. Ct. App. 2003) (internal citation

marks omitted). A law enforcement officer’s duty to give Miranda warnings

does not attach unless there has been such a restriction on a person’s freedom as

to render him in custody. Loving v. State, 647 N.E.2d 1123, 1125 (Ind. 1995).

The Indiana Supreme Court has held:

Whether a person was in custody at a given time depends not
upon the subjective views of either the interrogating officers or
the subject being questioned but upon the “objective
circumstances.” An officer’s knowledge and beliefs are only
relevant to the question of custody if conveyed—through either
words or actions—to the individual being questioned. Likewise,
a police officer’s “unarticulated plan has no bearing on the
question” of custody. The test is how a reasonable person in the
suspect’s shoes would understand the situation.

Meriwether v. State, 984 N.E.2d 1259, 1263 (Ind. Ct. App. 2013).

[12] Corbin maintains that when the deputies initially spoke with her, and both

formed the opinion that she was intoxicated and had driven the vehicle before it

became disabled, the deputies’ concern had shifted from a ‘welfare check’ to a

potential criminal investigation. Corbin therefore contends that, at that

moment, she was in a custodial-type situation, and the deputies should have

given her Miranda warnings prior to questioning her.

[13] Corbin relies on Moore v. State, 723 N.E.2d 442, 446 (Ind. Ct. App. 2000) for the

broad proposition that an interrogation is necessarily custodial once an officer

knows or should know that he is investigating a potential crime and questioning

a suspect. In Moore, police responded to the report of a pedestrian being struck
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 by an automobile. Id. Moore, the driver of the automobile, was subsequently

placed in the back seat of a police cruiser, could not leave the scene, and had a

statutory duty to stay and provide information for an accident report. Id. This

court acknowledged that under the circumstances, Moore was in a custodial-

type situation, but that Moore was not in custody until the officer knew or

should have known he was investigating a potential crime rather than just an

accident when questioning the defendant. Id.

[14] While the deputies’ initial concern was to check if Corbin needed assistance

with her vehicle, we find that their encounter transitioned into a traffic stop. In

Berkemer v. McCarty, 468 U.S. 420, 440 (1984), the Court concluded that the

“noncoercive aspect of ordinary traffic stops prompts us to hold that persons

temporarily detained pursuant to such stops are not ‘in custody’ for the

purposes of Miranda.” Although the Court recognized that the defendant had

been seized, it noted the brief nature of such stops, and that such stops

“commonly occur in the public view, in an atmosphere far less police

dominated than that surrounding the kinds of interrogation at issue in Miranda

itself.” Id. In Pennsylvania v. Bruder, 488 U.S. 9, 10 (1988), the Court relied on

Berkemer in holding that police officers were not required to give Miranda

warnings where an officer “ask[ed] respondent a modest number of questions

and request[ed] him to perform a simple balancing test at a location visible to

passing motorists.” Id. at 11.

[15] When Deputy Riddle first questioned Corbin on whether she had consumed

any alcoholic beverage, Corbin was neither handcuffed nor physically

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 restrained in any way, and she had not been told she was a suspect in a crime.

There is no evidence that Deputy Riddle suggested to Corbin that she should

cooperate, or implied that adverse consequences for noncooperation would

result. After exiting her vehicle, Corbin indeed became a suspect to the crime

of operating a vehicle while intoxicated. At that point, Deputy Redmon asked

further questions about how many alcoholic drinks she had consumed at the

wedding; however, we find that these questions were merely cumulative since

Corbin had already admitted to Deputy Riddle about consuming alcohol prior

to driving her vehicle.

[16] Moreover, the holding in Berkemer allows officers to ask questions and request

sobriety tests of motorists whom they pull over. As such, we see no reason why

the deputies in the instant case could not act similarly when they encountered

Corbin at the scene of her disabled vehicle. See State v. Hicks, 882 N.E.2d 238,

243 (Ind. Ct. App. 2008) (holding the defendant was not in custody when a

police officer asked her if she was driving a disabled vehicle in the immediate

vicinity).

[17] Even if Corbin’s statements to the deputies were obtained in violation of

Miranda and erroneously admitted, they are subject to an analysis for harmless

error. The improper admission of evidence is harmless error when the

conviction is supported by substantial independent evidence of guilt so as to

satisfy the reviewing court that there is no substantial likelihood that the

questioned evidence contributed to the conviction.” Lafayette v. State, 917

N.E.2d 660, 666 (Ind. 2009). “Reversal may be compelled if the record as a

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 whole discloses that the erroneously admitted evidence was likely to have had a

prejudicial impact on the fact-finder, thereby contributing to the judgment.”

Ground v. State, 702 N.E.2d 728, 732 (Ind. Ct. App. 1998). “To determine

whether the erroneous admission of irrelevant and prejudicial evidence . . . is

harmless, we judge whether the jury’s verdict was substantially swayed. If the

error had substantial influence, or if one is left in grave doubt, the conviction

cannot stand.” Lafayette v. State, 917 N.E.2d 660, 666-67 (Ind. 2009) (citation

and internal quotation marks omitted).

[18] Here, Deputy Riddle testified that after meeting Corbin, he observed that she

had blood-shot eyes and slow, slurred speech. Deputy Riddle also saw that

Corbin was unsteady on her feet when she exited her vehicle. Further, Deputy

Redmon smelled an odor of alcohol when he approached Corbin. Corbin failed

the field sobriety tests, she was handcuffed and transported to jail. While in

jail, Corbin was administered a standardized chemical breath test after being

booked in jail. Corbin’s ACE was 0.152. Even without the admission of

Corbin’s inculpatory statements, Corbin’s conviction for Class A misdemeanor

driving while intoxicated with an ACE of 0.15 or more was supported by

independent evidence, and there is no substantial likelihood that Corbin’s

statements to the deputies contributed to her conviction. As such, any error in

the admission of Corbin’s statements was harmless.

B. Results of the Chemical Breath Test

[19] Corbin argues that pursuant to Indiana Code section 9-30-6-5(d), the results of

her chemical breath test were inadmissible because the State was unable to

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 certify that the chemical test was properly administered. We note that the

results of a chemical breath test are inadmissible in a prosecution for operating

while intoxicated unless the test operator, test equipment, chemicals used in the

test, and test techniques have been approved in accordance with the rules

promulgated by the Indiana University School of Medicine Department of

Pharmacology and Toxicology. Ramirez v. State, 928 N.E.2d 214 (Ind. Ct. App.

2010), trans. denied.

[20] Accordingly, for the results of a chemical breath test to be admissible, three

foundational requirements must be satisfied: (1) the person who administered

the test must be certified by the Department of Toxicology, (2) the equipment

used in the test must have been inspected and approved by the Department of

Toxicology, and (3) the operator must have followed the procedures approved

by the Department of Toxicology. State v. Lloyd, 800 N.E.2d 196, 199 (Ind. Ct.

App. 2003). Corbin challenges the third foundational requirement.

[21] Pursuant to Indiana Code section 9-30-6-5(a)(3), the state department of

toxicology has promulgated an approved method for administering breath tests

using the BAC DataMaster. 260 Ind. Admin. Code 2-4-1. In relevant part, the

administrative rule contains the following steps:

STEP ONE: The person to be tested must:

(A) have had nothing to eat or drink;

(B) not have put any foreign substance into his or her mouth or
respiratory tract; and
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 (C) not smoke;

within fifteen (15) minutes before the time a breath sample is
taken.

260 I.A.C. 2-4-1(a). “The concern over foreign substances [placed in] a

person’s mouth is the potential for the substances to absorb and retain alcohol

in the mouth, which could falsely elevate the breath alcohol concentration.”

Guy v. State, 823 N.E.2d 274, 277 (Ind. 2005). Corbin maintains that the results

of her chemical breath test were inadmissible because part of ‘STEP ONE’ was

not strictly adhered to. In particular, Corbin alleges that the

Video evidence of Corbin’s encounter with police shows her
sobbing . . . . Deputy Redmon testified that she was crying all the
way to the Montgomery County Jail, but he was unable to
confirm that no tears found their way into Corbin’s mouth in the
15 minutes just prior to her certified breath test.

(Appellant’s Br. p. 20). Corbin relies on Deputy Redmon’s testimony that she

cried “throughout” her transportation to jail, and because Deputy Redmon

could not “accurately tell” if her tears “got in her mouth” within fifteen minutes

before her breath sample was taken, the test was invalid and inadmissible at her

bench trial. (Tr. Vol. II, p. 29) (Appellant’s Br. p. 21).

[22] Corbin then argues that the facts of this case are “diametrically opposed to

those in” Guy v. State, 823 N.E.2d 274 (Ind. 2005), and we should, therefore,

reverse her conviction. In Guy, our supreme court held that the presence of a

tongue stud placed in the defendant’s mouth more than twenty minutes before a

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 breath test did not render the test inadmissible. Id. at 275. The court examined

the administrative code controlling the procedure for conducting a breath test

and held that “[t]he logical conclusion to draw from the department of

toxicology’s use of the word ‘put’ is that any foreign substance placed in a

person’s mouth more than twenty minutes prior to a breath test poses no

problem for the reliability of the results.” Id. at 276. At the time, the court was

referring to 260 Indiana Administrative Code 1.1-4-8(1), which was repealed in

2014 which then provided that “[T]he person to be tested must . . . not have put

any foreign substance into his or her mouth or respiratory tract . . . within

twenty (20) minutes before the time a breath sample is taken.” Id.

[23] Corbin posits that during her transportation to jail, she was generating “fresh

tears . . . by the second.” (Appellant’s Br. p. 20). As such, pursuant to 260

I.A.C. 2-4-1(a), Corbin argues that her tears were foreign objects put in her

mouth within fifteen minutes of her chemical breath test. In turn, the State

argues that Corbin offered “no scientific evidence” at her trial, or now on

appeal, to support her position that her tears were foreign objects put in her

mouth or that her tears were skilled at invalidating a chemical breath test.

(Appellant’s Br. p. 15). Further, the State directs us to the record and urges us

to consider any conflicting evidence in a light most favorable to the trial court’s

ruling. See Meriwether, 948 N.E.2d at 1262.

[24] Turning to the evidence, at Corbin’s bench trial, Deputy Redmon testified that

he examined Corbin’s mouth at “11:54 p.m.” and he did not observe any

foreign objects in Corbin’s mouth. (Tr. Vol. II, p. 26). Then at 12:20 a.m., after

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 Corbin had been booked in jail, Deputy Redmon administered the chemical

breath test. Prior to administering the test, he ensured that Corbin had not

eaten, drunk, or smoked anything. Deputy Redmon testified that although

Corbin cried on her way to jail, he could not tell if the tears entered Corbin’s

mouth. Because there is no evidence that Corbin’s tears entered her mouth

within fifteen minutes of her chemical breath test, and Corbin failed to present

any scientific evidence in support of her claim, we conclude that the test was

properly administered, and the trial court did not abuse its discretion in

admitting the test results.

II. Sufficiency of the Evidence

[25] Corbin also contends that the State presented insufficient evidence to sustain

her conviction for Class A misdemeanor operating a vehicle while intoxicated

with an ACE of 0.15 or more. Specifically, she claims that (1) there was

insufficient evidence to prove that she operated the vehicle, and (2) the

chemical breath test was not administered within three hours of when she

operated her vehicle.

[26] When reviewing the sufficiency of the evidence needed to support a criminal

conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

supporting the judgment and any reasonable inferences that can be drawn from

such evidence.” Id. We will affirm if there is substantial evidence of probative

value such that a reasonable trier of fact could have concluded the defendant

was guilty beyond a reasonable doubt. Id.

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[27] In order to convict Corbin 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 Corbin’s chemical breath test showed that her

ACE was 0.152—well above the statutory threshold.

A. Operation of the Vehicle

[28] Corbin alleges that the State presented insufficient evidence beyond a

reasonable doubt to show that she operated the vehicle. The word “operate”

means to “navigate or otherwise be in actual physical control of a vehicle,

motorboat, off-road vehicle, or snowmobile.” I.C. § 9-13-2-117.5(a). In Crawley

v. State, 920 N.E.2d 808, 812 (Ind. Ct. App. 2010), trans. denied, we listed four

factors that could be used to determine whether a person “operated” a vehicle:

“(1) the location of the vehicle when it is discovered; (2) whether the car was

moving when discovered; (3) any additional evidence indicating that the

defendant was observed operating the vehicle before he or she was discovered;

and (4) the position of the automatic transmission.” In addition to these four

factors, “[a]ny evidence that leads to a reasonable inference should be

considered.” Id.

[29] Corbin relies on Johnson v. State, 518 N.E.2d 1127, 1128 (Ind. Ct. App. 1988),

arguing that the State did not establish that she operated her disabled vehicle

before encountering the deputies.

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[30] In Johnson, a police officer investigated a vehicle parked on the side of the road.

Johnson, 518 N.E.2d at 1127. An officer observed a vehicle parked off the road.

Id. The officer stopped to investigate and found Johnson in the driver’s seat.

Id. Johnson explained that the car was disabled and proved the car would not

start. Id. The officer asked Johnson for identification and ran a routine check

on Johnson’s license. Id. The officer learned Johnson’s driving privileges had

been revoked. Id. As such, he arrested Johnson for operating a motor vehicle

while his driving privileges were suspended. Id. At his trial, Johnson explained

he had not been driving the car, the car would not start, and he was waiting for

a friend to return with a tow. Id. Two witnesses corroborated Johnson’s story.

Id. On appeal, we reversed Johnson’s conviction. In reaching that holding, we

noted that the State had presented no evidence at trial that Johnson had driven

the car or that the car was operable at the time of Johnson’s arrest. Id. at 1129.

[31] Although there are some factual similarities, we find the Johnson case

distinguishable. Unlike Johnson, Corbin did not inform the deputies that she

had not operated the vehicle or that she was waiting for towing services. We

note that Corbin’s vehicle had stalled on the shoulder of 1-74, an area used only

for emergencies. While the record is silent as to the position of the vehicle’s

gear, Corbin was seated behind the wheel, and she informed the deputies that

she was coming from a wedding and “was driving back to her Indiana,

Indianapolis area address.” (Tr. Vol. II, p. 11). It is reasonable to infer that in

order to get her vehicle from the wedding to the shoulder of I-74, Corbin must

have driven her vehicle to get to that location. Thus, applying the plain

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 language of Indiana Code section 9-13-2-117.5 to this case, a reasonable finder

of fact could conclude from this evidence that Corbin was in “actual physical

control” of her vehicle and met the statutory definition of the word “operate.”

B. Administration of the Chemical Breath Test

[32] Corbin argues that the State did not prove that the chemical breath test was

completed within the requisite period of time. Indiana Code section 9-30-6-2

(c) provides that a chemical 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 [I.C. §] 9-30-5 or a violation under [I.C. §] 9-30-

15.”

[33] 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; 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

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 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.

This statute allows a jury to relate the driver’s ACE at the time of the chemical

test back to the time the driver operated the vehicle. See Disbro v. State, 791

N.E.2d 774, 778 (Ind. Ct. App. 2003), trans. denied. If the State fails to prove

that the chemical test occurred within three hours of when the defendant last

operated her vehicle, it is not allowed to rely on the presumption. Allman v.

State, 728 N.E.2d 230, 232 (Ind. Ct. App. 2000). Even if the test is not

conducted within the three-hour time period, that affects only the presumption

and not the test’s admissibility. Mannix v. State, 54 N.E.3d 1002 (Ind. Ct. App.

2016).

[34] Among the cases that Corbin cites to is Mordacq v. State, 585 N.E.2d 22, 23 (Ind.

Ct. App. 1992), where this court discussed whether the chemical breath test can

“presumptively relate back to an act of operating a vehicle that occurred before

an officer encountered the defendant . . . .” Analyzing this issue, we

determined that

[I]n a case where the officer did not observe the defendant
operating the vehicle, the statutes could be read to impose no
limit on the relation back test, provided the test was performed
within three hours of the time an officer investigated the
defendant. Such an interpretation would distinguish between
those defendants stopped (1) by the police while driving, and (2)
those who stop of their own accord or by accident. This could
lead to absurd and illogical results unintended by the legislature,

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 and would operate to the disadvantage of those who, realizing
their continued driving posed a threat to public safety, chose to
stop. In our view, the three-hour limit expressed in I.C. [§ ] 9-30-
6-2(c) begins not from the moment an officer ideates probable
cause, but rather from the moment at which the vehicle was
operated in violation of I.C. [§ ] 9-30-5.

Id. The State argues that Corbin’s reliance on Mordacq is misplaced.

[35] In Mordacq, at approximately 2:30 a.m., an officer observed a vehicle parked

alongside the road with its engine running. Id. 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.

[36] A few years after Mordacq, this court reached a similar conclusion in Allman v.

State, 728 N.E.2d 230 (Ind. Ct. App. 2000). 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 driver sitting in her vehicle off the side of the road,

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 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.

[37] 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. In Corbin’s case, the

deputies were dispatched at 11:36 p.m., and they arrived at 11:43 p.m. to attend

to Corbin’s stalled vehicle facing eastbound near the 41 ½ mile marker on I-74.

Corbin then informed the deputies that she was driving from a wedding and

was heading home. Corbin displayed signs of intoxication. Corbin also

informed Deputy Redmon that she had consumed two or three glasses of wine

between 10:00 and 10:30 p.m. Deputy Redmon administered field sobriety

tests, and Corbin failed all of them. Corbin was arrested and transported to jail.

[38] After Corbin had been booked in jail, she submitted to a chemical test. Deputy

Redmon, a certified breath test operator, administered the test at approximately

12:20 a.m. The test showed that Corbin’s ACE was 0.152, well above the

Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018 Page 20 of 21
 statutory threshold. Our role on appeal is to consider “the probative evidence

supporting the judgment and the reasonable inferences that may be drawn

[therefrom.]” Dorsett v. State, 921 N.E.2d 529, 531 (Ind. Ct. App. 2010).

[39] Here, the fact finder was allowed to deduce that Corbin’s last alcoholic

beverage was consumed at 10:30 p.m. and after that, Corbin got behind the

wheel and drove her vehicle before it broke down on I-74. Since Corbin’s

chemical breath test was administered at 12:20 a.m., it may be inferred from the

evidence that a presumption existed that Corbin had an ACE of at least 0.15 at

the time she operated the vehicle. Therefore, we conclude that the State met its

burden of proof beyond a reasonable doubt, and we affirm Corbin’s conviction

for operating a vehicle with an ACE of 0.15 or more, a Class A misdemeanor.

CONCLUSION
[40] For the foregoing reasons, we conclude that the trial court did not abuse its

discretion by admitting Corbin’s statements to the deputies or the results of the

chemical breath test. Also, the State presented sufficient evidence beyond a

reasonable doubt to convict Corbin of Class A misdemeanor operating a vehicle

with an ACE of 0.15 or more.

[41] Affirmed.

[42] Kirsch, J. and May, J. concur

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