MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 16 2017, 6:02 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Bart M. Betteau
Attorney General of Indiana Betteau Law Office, LLC
New Albany, Indiana
Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, November 16, 2017
Appellant-Plaintiff, Court of Appeals Case No.
22A01-1706-CR-1329
v. Appeal from the Floyd Superior
Court
Jason Hubler, The Honorable James B. Hancock,
Appellee-Defendant. Judge
Trial Court Cause No.
22D02-1603-CM-656
Bailey, Judge.
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Case Summary
[1] The State appeals the trial court’s order suppressing evidence obtained from an
investigation of whether Jason Hubler (“Hubler”) operated a vehicle while
intoxicated, endangering a person, a Class A misdemeanor,1 and whether he
operated a vehicle with an alcohol concentration equivalent (“ACE”) of .15 or
more, a Class A misdemeanor.2
[2] We reverse.
Issues
[3] The State raises the following two issues on appeal:
I. Whether Hubler was entitled to Miranda warnings.
II. Whether probable cause existed to offer Hubler a chemical
test.
Facts and Procedural History
[4] At approximately 12:20 p.m. on March 26, 2016, New Albany police officers
arrived at the scene of two adjacent collisions on Charlestown Road. The
second collision occurred when two vehicles traveling southbound on
1
Ind. Code § 9-30-5-2(a).
2
I.C. § 9-30-5-1(b).
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Charlestown Road entered the northbound lane to pass the first accident scene.
The first passing vehicle was able to return safely to the southbound lane after
clearing the accident, but the second vehicle collided with Hubler’s northbound
vehicle.
[5] Officer Eric May (“Officer May”) of the New Albany Police Department
investigated Hubler’s collision. Officer May approached Hubler, who was
standing by his vehicle, and asked Hubler for his driver’s license and
registration. Officer May also asked Hubler how the collision had occurred.
Officer May observed that Hubler had glassy eyes, unsteady balance, and
slurred speech, and he detected a strong odor of alcohol coming from Hubler.
Officer May’s observations led him to believe that Hubler was intoxicated.
Officer May then asked Hubler to submit to field sobriety tests. Hubler
submitted to the horizontal gaze nystagmus test and failed with all six clues
indicating evidence of intoxication. Hubler informed Officer May that he could
not take the “walk and turn” field sobriety test because Hubler had a “bad
back.” Tr. at 22, 38-39. Hubler stated that he thought he could do the “one leg
stand” test, and he attempted to do so. Id. at 22, 39. However, Officer May
stopped the test after less than five seconds for Hubler’s safety after Hubler put
his foot down three times.
[6] Based on his investigation, Officer May informed Hubler of Indiana’s implied
consent law and offered him a certified chemical test. Hubler agreed to a
chemical test and went to the Floyd County jail for testing. Subsequent testing
indicated that Hubler had an ACE of .240. On March 28, the State charged
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Hubler with operating a vehicle while intoxicated endangering a person and
operating a vehicle with an ACE of .15 or more.
[7] On January 6, 2017, Hubler moved to suppress “as evidence any and all items
seized” as a result of the State’s allegedly unconstitutional “search and/or
seizure.” Appellant’s App. at 48-49.3 Hubler also submitted additional
authority, contending State v. Moore, 723 N.E.2d 442 (Ind. Ct. App. 2000),
required that the observed signs of his intoxication must be suppressed because
he was not given Miranda warnings. At the March 14 hearing on the motion to
suppress, New Albany Police Officers May and Mike Isom (“Officer Isom”)
testified. Officer Isom testified that he was one of the first few officers to arrive
at the scene of the collisions, and he began directing traffic. Officer Isom also
interviewed two witnesses who had been watching Hubler’s collision from
adjacent apartments. The witnesses stated that Hubler was traveling
northbound at a speed “well over the speed limit,” quickly decelerated as he
approached the oncoming traffic in his lane, and then collided. Tr. at 8.
Officer Isom saw Hubler standing next to his vehicle but Officer Isom was
approximately twenty-five yards away and could not get “a clear assessment as
to what [Hubler’s] physical condition was” from that distance. Id. at 9. Officer
Isom testified that, from a distance, Hubler did not appear to him to be
3
Hubler’s motion also requested specific findings pursuant to Indiana Trial Rule 52. The trial court failed to
issue specific findings. However, as neither party raises that issue on appeal, we do not address it.
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unsteady as he stood next to his vehicle, and he did not observe any signs that
Hubler was intoxicated.
[8] Officer May also testified at the suppression hearing. He testified that the driver
of the car who hit Hubler’s car was the “primary cause” of the collision. Id. at
23. He also testified that Hubler’s eyes could have appeared glassy due to
allergies or “a million different things.” Id. at 27. Officer May testified that
Hubler had “moderate slurring of words” and that Officer May could detect a
strong odor of alcohol. Id. at 30. Officer May admitted that he did not include
the slurred speech or smell of alcohol in his police report. Officer May also
admitted that he had no way of “knowing whether or not [Hubler’s] back injury
interfered” with his ability to perform the one leg stand sobriety test. Id. at 39.
And Officer May testified that he administered the nystagmus test by telling
Hubler to visually follow the officer’s finger as he moved it in an arc, rather
than in a straight line, from Hubler’s eye level to his ear.
[9] The trial court granted Hubler’s motion to suppress, and the State appeals that
order.4
4
The State may appeal an order granting a motion to suppress evidence “if the ultimate effect of the order is
to preclude further prosecution of one (1) or more counts of an information or indictment.” I.C. § 35-38-4-
2(5). The effect of suppressing evidence that Hubler appeared intoxicated and the results of the chemical test
is to preclude further prosecution of both the driving while intoxicated, endangering a person, charge and the
charge of operating a vehicle with an ACE of .15 or more.
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Discussion and Decision
Standard of Review
[10] Our standard of review of an order granting a motion to suppress evidence is
well-settled:
We review a trial court’s decision to grant a motion to suppress
as a matter of sufficiency. State v. Moriarity, 832 N.E.2d 555,
557–58 (Ind. Ct. App. 2005). When conducting such a review,
we will not reweigh evidence or judge witness credibility. [Id.] at
558. In such cases, the State appeals from a negative judgment
and must show that the trial court’s ruling on the suppression
motion was contrary to law. State v. Estep, 753 N.E.2d 22, 24–25
(Ind. Ct. App. 2001). This court will reverse a negative judgment
only when the evidence is without conflict and all reasonable
inferences lead to a conclusion opposite that of the trial court. Id.
at 25.
State v. Owens, 992 N.E.2d 939, 941-42 (Ind. Ct. App. 2013), trans. denied.
Miranda Warnings Not Required
[11] In his motion to suppress, Hubler argued that the evidence of his intoxication
must be suppressed because it was obtained in violation of his right to be free
from unreasonable search and seizure as guaranteed by the Fourth Amendment
to the United States Constitution and Article 1, Section 11, of the Indiana
Constitution.5 Specifically, he first argued that the evidence must be suppressed
5
Although Hubler’s motion to suppress cited both the federal and state constitutional provisions, neither
party cites authority or separate argument as to Article 1, § 11 of the Indiana Constitution on appeal.
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because the officer did not give Hubler his Miranda warnings prior to
conducting a custodial interrogation of Hubler. Appellant’s App. at 62.
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966), 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. Id. at 479, 86 S.Ct. 1602. However, these warnings are
only required where a suspect is both in custody and subjected to
interrogation. Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct.
1682, 64 L.Ed.2d 297 (1980).
State v. Necessary, 800 N.E.2d 667, 669-70 (Ind. Ct. App. 2003).
[12] Officer May did not provide Hubler with the Miranda warnings. However, he
was not required to do so because, even if Hubler was in custody (and we do
not decide whether or not he was), Officer May did not interrogate Hubler.
Not “all statements obtained by the police after a person has been taken into
custody are to be considered the product of interrogation.” Rhode Island v. Innis,
446 U.S. 291, 299 (1980). Rather, “[u]nder Miranda, ‘interrogation’ includes
express questioning and words or actions on the part of the police that the
Therefore, the separate state constitutional claim is waived. See Ind. Appellate Rule 46; Pierce v. State, 29
N.E.3d 1258, 1267 (Ind. 2015).
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police know are reasonably likely to elicit an incriminating response from the
suspect.” White v. State, 772 N.E.2d 408, 412 (Ind. 2002). Here, after asking for
Hubler’s drivers’ license and registration, the only questions Officer May asked
Hubler were “how [did] the crash happen” and whether Hubler would agree to
take some field sobriety tests.6 Tr. at 19, 26. Those questions do not amount to
“interrogation” for purposes of Miranda. Wissman v. State, 540 N.E.2d 1209,
1212 (Ind. 1989) (“Officer Schollian’s general inquiry of what happened was for
information, not a question used to elicit a confession from appellant. Thus this
is not a case of custodial interrogation.”); see also Seeglitz v. State, 500 N.E.2d
144, 146 (Ind. 1986) (“Miranda requirements are not applicable to general on
the scene questioning in a noncoercive atmosphere.”).7 Nor was the
administration of the field sobriety tests “interrogation” that would trigger
Miranda requirements. Necessary, 800 N.E.2d at 670 (“[N]one of the Miranda
warnings must be given to a defendant before the police administer FSTs [i.e.,
field sobriety tests].”).
[13] Moreover, Hubler made no incriminating statement that could be suppressed.
“‘[O]nly verbal statements preceding an advisement of Miranda rights that are
6
The record discloses no evidence that Officer May asked Hubler if he had been drinking alcohol, as Hubler
seems to suggest in his brief. Appellee’s Br. at 14.
7
Moore v. State, 723 N.E.2d 442 (Ind. Ct. App. 2000), cited by Hubler, is not to the contrary. Rather, this
court held in that case that the defendant was not “interrogated” when the officer initially asked him “what
happened in the accident” because, at that point, the officer was only questioning the defendant with the
intent of eliciting information about a traffic accident, not incriminating information about a crime. Id. at
450. It was not until the officer believed a crime had happened that his following questions became
interrogation. Id.
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both testimonial in nature and elicited during custodial interrogation must be
suppressed.’” State v. Keller, 845 N.E.2d 154, 161 (Ind. Ct. App. 2006) (quoting
Curry v. State, 643 N.E.2d 963, 976 (Ind. Ct. App. 1994), trans. denied)). And,
although Miranda may also protect responses that are nonverbal conduct, that
conduct must, itself, be testimonial.
“In order to be testimonial, an accused’s communication must
itself, explicitly or implicitly, relate a factual assertion or disclose
information.” Curry v. State, 643 N.E.2d 963, 976 (Ind. Ct. App.
1994), reh’g denied, trans. denied. “[N]on verbal conduct contains
a testimonial component whenever the conduct reflects the
actor’s communication of his thoughts to another.” [Pennsylvania
v.] Muniz, 496 U.S. [582,] 595 n.9, 110 S.Ct. 2638 [1990].”
Smith v. State, 829 N.E.2d 64, 75 (Ind. Ct. App. 2005).
[14] Here, Hubler’s physical appearance (i.e., slurred speech, glassy eyes,
unsteadiness, smelling of alcohol) was not in any way testimonial. Id. Nor was
his conduct of failing the field sobriety tests and the chemical test “testimonial.”
See, e.g., Crump v. State, 740 N.E.2d 564, 571 (Ind. Ct. App. 2000) (holding the
odor of alcohol on the defendant’s breath and the results of the breathalyzer test
“was noncommunicative physical evidence.”), trans. denied; see also Smith v.
State, 496 N.E.2d 778, 783 (Ind. Ct. App. 1986) (quoting Schmerber v. California,
384 U.S. 757, 764 (1966)) (holding blood test, field sobriety test, and
breathalyzer test results obtained without Miranda warnings are admissible
since “[n]ot even a shadow of testimonial compulsion or enforced
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communication by the accused” is involved in obtaining or analyzing such
tests).
[15] In sum, the failure to provide Hubler with Miranda warnings was not a basis
upon which to suppress evidence of his intoxication, including evidence of
Officer May’s observations of Hubler’s physical appearance and behavior.8
Probable Cause to Offer a Chemical Test
[16] Hubler argued to the trial court that, even if the police were not required to
provide him with Miranda warnings, the results of the chemical test must be
suppressed because the police lacked probable cause to offer such a test. The
trial court agreed. However, because all reasonable inferences lead to the
opposite conclusion, we reverse the order to suppress evidence obtained from
the chemical test. Owens, 992 N.E.2d at 942.
[17] Indiana’s implied consent law provides that “[a] law enforcement officer who
has probable cause to believe that a person has committed a [driving while
intoxicated] offense … shall offer the person the opportunity to submit to a
chemical test.” I.C. § 9-30-6-2(a). “A law enforcement officer has probable
cause to offer a chemical test for intoxication when the officer has knowledge of
facts and circumstances that would lead a reasonably prudent person to believe
8
We note that the trial court did not state that its decision was based on the failure to provide Miranda
warnings; in fact, the trial court did not state a reason for its decision at all or specify exactly what evidence it
was suppressing. Appellant’s App. at 65.
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that the crime of operating a vehicle while intoxicated has been committed.”
Hassfurther v. State, 988 N.E.2d 811, 815 (Ind. Ct. App. 2013). “Objectively
observed clear indications of intoxication include dilated pupils, bloodshot eyes,
glassy eyes, and the odor of alcohol on the person’s breath.” Frensemeier v.
State, 849 N.E.2d 157, 162 (Ind. Ct. App. 2006), trans. denied. Moreover, the
fact that a defendant smells strongly of alcohol, alone, provides sufficient
probable cause to offer a chemical test. Dalton v. State, 773 N.E.2d 332, 334
(Ind. Ct. App. 2002), trans. denied.
[18] Here, Officer May’s observations of Hubler at the scene of the accident
provided probable cause to believe that Hubler had been driving while
intoxicated and should be offered a chemical test. Officer May testified that he
detected a strong odor of alcohol on Hubler, and that observation, alone,
provided probable cause to offer the chemical test. Id. However, that was not
the only evidence of Hubler’s intoxication; Officer May also observed that
Hubler had slurred speech, glassy eyes, and unsteady balance. While Officer
May failed to include some of those observations in his report, his testimony as
to what he observed was not contradicted by his police report. Nor were
Officer May’s observations contradicted by Officer Isom, who testified that he
was too far away from Hubler to accurately assess Hubler’s physical condition
at the scene of the accident. Because all reasonable inferences from the
evidence lead to the conclusion that there was probable cause to offer Hubler a
chemical test, the trial court’s order suppressing the results of that test were
contrary to law.
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Conclusion
[19] The police were not required to provide Hubler with Miranda warnings prior to
observing evidence of his physical appearance and behavior at the scene of the
accident because they did not interrogate Hubler to obtain such evidence and
such evidence was not testimonial. Thus, to the extent the trial court ordered
suppression of the officers’ observations of Hubler, we reverse. Moreover, there
was probable cause for Officer May to offer Hubler the chemical test; Officer
May’s detection of the strong odor of alcohol on Hubler was, alone, sufficient
to establish probable cause. Id. Therefore, we reverse the trial court’s ruling
suppressing evidence of the results of the chemical test as it was contrary to law.
[20] Reversed.
Baker, J., and Altice, J., concur.
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State of Indiana v. Jason Hubler (mem. dec.)
Combined Opinion