State v. Albright

DeBRULER, Justice,

dissenting.

Filed as part of the charging instrument is a copy of a printed checklist filled. out by Trooper Jones reciting that the first test was administered at 3:14 a.m. This checklist was specifically referred to repeatedly by Jones in his testimony at the suppression hearing, without however mentioning that specific time. The checklist itself was not offered as evidence.

Also filed as part of the charging instrument is an affidavit of probable cause executed by Jones reciting that the third test was administered to appellant at 3:38 am. The affidavit was not offered as evidence.

When defense counsel specified the times of 3:14, 3:18, and 3:38 in his question to Jones on cross, counsel did not draw them out of thin air, but instead drew them from record documents created by Jones and filed by the prosecution as part of the pleadings. It is no wonder that Jones, a specially trained technician, with full awareness of time requirements for testing, did not balk at the question. He knew that the times 3:14 and 3:88 had been set down by his own hand.

The Jones affidavit and the Jones checklist cannot be considered as proof of any fact. In my opinion, they can be considered as an aid to the court in understanding what Jones did say and mean in responding to the question on cross which used those particular times. Analogously, a dictionary is not evidence, but nevertheless may properly be used by the trier of fact in considering the evidence. See Payton v. State (1982), Ind.App., 430 N.E.2d 1175. The information or indictment is not evidence, but may properly be used by the trier of fact to "weigh the evidence in light of the charge." U.S. v. Garcia, 562 F.2d 411, 417 (7th Cir.1977); see Thomas v. State (1972), 259 Ind. 537, 289 N.E.2d 508. A view of the actual scene of a relevant event by the trier of fact does not provide evidence, but is allowed so that the trier of fact may "better understand the testimony given by the witnesses at trial." Jackson v. State (1992), Ind., 597 N.E.2d 950. Understood in this vein, the question and answer of the witness at trial constitute an affirmation of the spe*727cific times for each of the three tests. The question was not a trick. It was a short cut.

There is a second independent reason to read this record as did Judges Najam and Baker. There are important inferences to be drawn from the evidence given at the hearing. The majority ignores these inferences. Jones testified that he arrested appellant at 2:48 a.m. and drove him a half block to the station house where he promptly administered an initial test. He testified that the second took place almost immediately after the first and that he waited twenty-five minutes after the second and the mouth rinse, before administering the third. It is apparent that these times coincide with times specified in the question. In this light, an inference arises from the evidence as a whole that the three tests occurred at the times specified in the question.

The Jones' recital in his testimony that he waited "twenty-four or twenty-five minutes after having him rinse out his mouth ..." before administering the third and crucial test is contradicted by competing inferences from the record. It may be properly inferred from the record that a period of twenty minutes intervened between the second and third tests, and that the first few minutes of that period could not be counted as part of the required twenty minute waiting period because during those minutes appellant was engaged in washing his mouth out and having it checked for debris. Since the proof of the required waiting period is not without contradiction, the resolution of the motion by the trial court against the party bearing the burden to prove the required waiting period cannot be overturned on appeal. Burris v. State (1990), Ind., 558 N.E.2d 1067. I would affirm the decision of the trial court.

DICKSON, J., concurs.