Attorney for Appellant Attorneys for Appellee
Brady J. Lory Steve Carter
Indianapolis, IN Attorney General of Indiana
Richard C. Webster
Matthew D. Fisher
Deputy Attorneys General
Indianapolis, IN
In the
Indiana Supreme Court
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No. 70S01-0409-CR-00432
Kimberly S. Ham,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
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Appeal from the Rush Superior Court, No. 70D01-0201-CM-019
The Honorable David E. Northam, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 70A01-0310-
CR-401
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May 3, 2005
Shepard, Chief Justice.
There is a division of authority in Indiana concerning whether it is
proper to instruct a jury that it may consider a driver’s refusal to submit
to a chemical test as evidence of intoxication. We hold that lawyers may
argue to jurors that this is so, and jurors may agree or disagree, but that
courts should not so instruct.
Facts and Procedural History
During routine patrol in Rushville on January 18, 2002, Officer Brad
Hatfield spotted Kimberly Ham driving a car left of the centerline. He
followed her, observed her drift left of center three more times, and then
pulled her over. He noticed the smell of alcohol when he arrived at her
vehicle. Ham fumbled through her purse for about forty-four seconds before
producing her driver’s license. Since Hatfield initially requested both
her license and registration, he again asked for her registration, which
she did hand him. She exited the vehicle and stumbled back towards it.
Hatfield asked Ham to step away from the vehicle to separate her from the
alcohol smell, but instead she nodded her head.
Ham failed the horizontal gaze nystagmus test, which tests the
smoothness of the side-to-side movement of a person’s eyes and is seventy-
seven percent accurate. Hatfield noticed her glassy, bloodshot eyes and
her slurred speech. She refused the walk-and-turn test and said she did
not want to take any more field sobriety tests, claiming she had an inner
ear infection. He read her the Implied Consent Law, and she refused to
submit to a chemical breath test. He arrested Ham and transported her to
the Rush County jail. At the jail, she again refused further sobriety
tests. Hatfield explained that Ham’s license would be suspended for a year
if she did not take the chemical breath test, and she refused.
The State charged Ham with driving while intoxicated, a class A
misdemeanor. At the jury trial on May 13, 2003, the trial court gave a
final instruction to the effect that Ham’s refusal to submit to a chemical
breath test may be considered as evidence of her intoxication. The jury
found her guilty of operating a vehicle while intoxicated, a class C
misdemeanor. The Court of Appeals held the instruction erroneous, having
“a significant potential to mislead the jury.” Ham v. State, 810 N.E.2d
1150, 1154 (Ind. Ct. App. 2004) vacated. It held the error to be harmless,
though, and upheld the conviction. Id. at 1155.
Jury Instruction Highlights Refusal
Indiana’s implied consent laws require a person to “submit to each
chemical test offered by a law enforcement officer” who has probable cause
to believe that person operated a vehicle while intoxicated. Ind. Code
Ann. § 9-30-6-2(a)(d) (West 2004). If that person refuses to submit to a
chemical test, then the refusal is admissible into evidence in a subsequent
proceeding for operating while intoxicated. Ind. Code Ann. § 9-30-6-3(b)
(West 2004).
Ham’s sole contention on appeal is that instruction number ten (“A
[D]efendant’s refusal to submit to a chemical test may be considered as
evidence of intoxication”) misleads the jury by unnecessarily emphasizing a
specific piece of evidence. (Appellant’s Br. at 4). Two panels of the
Court of Appeals have agreed. See Schmidt v. State, 816 N.E.2d 925, 932-33
(Ind. Ct. App. 2004); Stoltmann v. State, 793 N.E.2d 275, 280 (Ind. Ct.
App. 2003) (error to instruct that refusal is evidence of guilt). Two
other panels have held the opposite. See Luckhart v. State, 780 N.E.2d
1165, 1168-69 (Ind. Ct. App. 2003) (instruction that refusal was evidence
of guilt not error, but instruction probably should have used
“intoxication” instead of “guilt”); Hurt v. State, 553 N.E.2d 1243, 1249
(Ind. Ct. App. 1990) (instruction that refusal was evidence of guilt not
erroneous).
Instructing a jury is a matter assigned to trial court discretion, and
an abuse of that discretion occurs when “the instructions as a whole,
mislead the jury as to the law in the case.” Carter v. State, 766 N.E.2d
377, 382 (Ind. 2002). “Instructions that unnecessarily emphasize one
particular evidentiary fact, witness, or phase of the case have long been
disapproved.” Ludy v. State, 784 N.E.2d 459, 461 (Ind. 2003) (citing
Fehlman v. State, 199 Ind. 746, 755, 161 N.E. 8, 11 (1928)).
We first observe that Indiana Code § 9-30-6-3 only says that a
refusal is admissible into evidence, not that it is evidence of
intoxication. Judge Baker was correct to say that “such evidence is
probative only to explain to the jury why there were no chemical test
results.” Ham, 810 N.E.2d at 1154.
Secondly, Hatfield testified about his entire encounter with Ham from
the moment he first spotted her until he booked her in jail, but his
testimony about her refusal to submit to a chemical test was the only part
of his testimony the court highlighted in the instruction. Whether a
defendant’s refusal to submit to a chemical test is evidence of
intoxication or merely that the defendant refused to take the test is for
the lawyers to argue and the jury to decide. An instruction from the bench
one way or the other misleads the jury by unnecessarily emphasizing one
evidentiary fact. See, e.g. Dill v. State, 741 N.E.2d 1230, 1232-33 (Ind.
2003) (“[A]lthough evidence of flight may, under appropriate circumstances,
be relevant, admissible, and a proper subject for counsel's closing
argument, it does not follow that a trial court should give a discrete
instruction highlighting such evidence.”)
The contrary holdings of Luckhart, 780 N.E.2d at 1168-69, and Hurt,
553 N.E.2d at 1249, are disapproved.
Conclusion
While the instruction was erroneous, the Court of Appeals was correct
that the error was harmless in light of the evidence the State produced of
Ham’s guilt. Ham, 810 N.E.2d at 1155. Ind. Appellate Rule 58(A). We
affirm the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.