Operating

Toan v. State, 691 N.E.2d 477 (Ind. App. 1998), Court of Appeals – Fifth District – 2/10/98

– Officers found Δ in a vehicle at 4:30 in the morning. The vehicle was stuck off the side of US 31 with the engine still running and the transmission in park. Δ was sleeping in the driver’s seat. Δ pled guilty. Δ then filed a PCR, arguing that his counsel was ineffective in failing to advise Δ that the State would have been unable to show operating.

– In a PCR claim, the burden of proof rests on the defendant.

– “Parking along the side of a city street, an area normally used for such a purpose, is distinguishable from stopping along the side of a highway, an area that is used only for emergencies.”

– The evidence was sufficient to show operating.

Hampton v. State, 681 N.E.2d 250 (Ind. App. 1997), Court of Appeals – Fourth District – 6/17/97

– In the morning, officers found a stopped vehicle on the street of a residential neighborhood. The vehicle was positioned at an angle such that its rear and passenger side protruded into the roadway and its front and driver side rested in a yard immediately adjacent to the roadway. The engine was running, the lights were on, and the vehicle was in gear. The vehicle had stopped moving because it was blocked by a rock in the yard. Δ was the sole occupant of the vehicle and was sleeping in the driver’s seat. After being convicted of Operating a Motor Vehicle while Privileges are Forfeited for Live, Δ appealed, arguing that there was insufficient evidence of operating.

– “The operator of a motor vehicle is a person who drives or is in actual physical control of a motor vehicle upon a highway. Therefore, to operate a vehicle is to drive it or be in actual physical control of it upon a highway.” Hampton at 251.

– In determining whether or not there is proof of operating, the following factors should be considered:

(1) location of the vehicle when discovered,

(2) whether the vehicle was in movement when discovered,

(3) additional evidence that defendant was observed operating the vehicle before he was discovered,

(4) the position of the automatic transmission, and

(5) any evidence that leads to a reasonable inference.

– Δ’s vehicle was not “parked.” Rather, it had stopped because of a rock in a yard.

– The evidence was sufficient to show operating.

Custer v. State, 637 N.E.2d 187 (Ind. App. 1994), Court of Appeals – Third District – 6/30/94

– Police received a report that a vehicle was traveling on a certain road. Police found Δ parked on the side of the highway. The vehicle’s engine and heater were running. Δ was the sole occupant of the vehicle, and was sleeping in the driver’s seat. After being convicted of OVWI, Δ appealed, arguing that there was insufficient evidence of operating.

– “Custer was not discovered in a parking lot; rather, he was found along the side of a four-lane highway.” Custer at 188.

– “Parking along the side of a city street, an area normally used for such a purpose, is distinguishable from stopping along the side of a highway, an area that is used only for emergencies. Custer at 189.

– The evidence was sufficient to show operating.

Clark v. State, 611 N.E.2d 181 (Ind. App. 1993), Court of Appeals – First District – 3/30/93

– At 3:30 AM, officers observed Δ sleeping in the driver’s seat of a vehicle and leaning toward the passenger door. The engine was running, the car lights were on, and the transmission was in park. The car was in a parking spot with the front end of the car in the roadway going through the apartment complex. Δ was eventually arrested for OVWI. After being convicted at trial, Δ appealed, arguing that the evidence was insufficient to show operating.

– “To sustain a conviction for operating while intoxicated, it is not sufficient for the State to show that the defendant merely started the engine.” Clark at 181-182.

– Δ’s vehicle was in a parking space, even if part of the vehicle was in the roadway.

– The State failed to show operating.

Mordacq v. State, 585 N.E.2d 22 (Ind. App. 1992), Court of Appeals – Fifth District – 1/21/92

– An officer noticed a car parked with its engine running at 7^th St. Δ was sleeping in the driver’s seat. After waking Δ, and smelling alcohol, the officer gave Δ a PBT. Δ stated that she had driven to 7^th St. at least two hours earlier, but that she wasn’t sure of the time. A certified breath test showed Δ had a BAC of 0.10. The breath ticket stated the test was given at 3:55 AM, with a handwritten note of 3:33 AM in the space labeled “first time observed.” Δ was charged with Operating Above 0.10. The State presented no evidence as to how or when her vehicle arrived at 7th St.

– “[The defendant] was not operating her vehicle . . . when [the officer] wakened her. There was no evidence that [the defendant’s car] was stopped in the travel portion of the roadway. Rather, [the officer] consistently used the word ‘parked.’” Mordacq at 24.

– “It is commonly understood that the drinker’s BAC varies over time, as the physiological processes of absorption and oxidation run their course.” Mordacq at 24.

– “[T]he three-hour limit . . . begins not from the moment an officer ideates probable cause, but rather from the moment at which the vehicle was operated. Mordacq at 26.

– “The State needed to prove that [the defendant] operated her vehicle after 12:55 a.m. We hold that the evidence was insufficient to prove this fact beyond a reasonable doubt. Apart from [the defendant’s] admission to [the officer], there was no evidence as to when she drove . . . It is unreasonable to infer from admitted operation ‘at least two hours’ ago proof beyond a reasonable doubt of operation. . . As a result, the presumption . . . does not arise.” Mordacq at 26.

– Because the State failed to show that Δ had a BAC of 0.10 at the time of operating, the conviction is reversed.

Garland v. State, 452 N.E.2d 1021 (Ind. App. 1983), Court of Appeals – Third District – 8/23/83

– Police observed Δ sitting behind the wheel of a vehicle which had been driven into the snow median. The lights were on and the motor was running. An officer came to assist. Δ told the officer that he had just run off the road. The officer radioed for a tow truck and waited for the truck. The officer observed that Δ was incoherent, had glassy eyes, had slurred speech, smelled of alcohol, seemed incoherent, and had poor balance. After being charged with OVWI, Δ appealed, arguing that the evidence was insufficient to show operating because the car could not move in the snow.

– The fact that “the car could not move does not negate the fact that he was in sole control of a vehicle in operation.” Garland at 1022.

– The evidence was sufficient to show operating.

Rose v. State, 345 N.E.2d 257 (Ind. App. 1976), Court of Appeals – 4/13/76

– Δ was found asleep behind the steering wheel of his car at 7:00 AM. The engine was running and the lights were on. The vehicle was stopped at an intersection where a car would ordinarily stop for a stop sign. Although the officer never observed Δ drive the vehicle, Δ admitted that he had been driving around looking for arrowheads. Δ was eventually arrested for OVWI. After being convicted at trial, Δ appealed, arguing that the evidence was insufficient to show operating. A witness testified that a third party had been driving and Δ had been a passenger in the car. The car stalled at the intersection. The driver left to get help or get another car. Δ stated that he had turned the motor on to keep himself warm and left the lights on so that the vehicle would be visible to other traffic. Δ stated he did not move the vehicle off of the road because he did not have a driver’s license. On rebuttal, the officer testified that Δ had never mentioned anyone else being in the car, never asked to contact anyone, and never mentioned having problems with the car. The officer also testified that when he moved the car off of the road, he had no problems with the engine stalling.

– Operating has been shown where a person has “control of a running vehicle on a public highway.” Rose at 260.

– The evidence was sufficient to show operating.

Prescriptions

– State v. Isaacs, 794 N.E.2d 1120 (Ind. App. 2003), Court of Appeals – First District – 8/25/03

– Δ lost control of a dump truck, ran off the road, and struck a utility poll. Δ admitted that he had taken Soma and Vicodin. Δ was charged with Operating a Vehicle while Intoxicated with Endangerment and Operating a Vehicle While Intoxicated with a Controlled Substance in One’s Body. Δ argued that he had a valid prescription for both medications and all charges against him should be dismissed.

– “The existence of a valid prescription for a controlled substance is a defense to operating with a controlled substance in one’s body.” Isaacs at 1122.

– “Intoxicated is defined as operating under the influence of any controlled substance as defined by statute so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties. Controlled substance in IC 9-13-2-86 is not limited to schedule I or II controlled substances. . . The category of controlled substance that causes intoxication is not a pertinent consideration . . . so long as intoxication in fact exists.” Isaacs at 1123.

Chemical Tests and 3 Hours

– IC § 9-30-6-2 – Probable cause; offer of test; alternative tests; requirement to submit

(a) A law enforcement officer who has probable cause to believe that a person has committed an offense under this chapter, IC 9-30-5, or IC 9-30-9, or a violation under IC 9-30-15 shall offer the person the opportunity to submit to a chemical test.

(b) A law enforcement officer:

(1) is not required to offer a chemical test to an unconscious person; and

(2) may offer a person more than one (1) chemical test under this chapter.

(c) A test administered under this chapter 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 or a violation under IC 9-30-15.

(d) A person must submit to each chemical test offered by a law enforcement officer in order to comply with the implied consent provisions of this chapter.

– Custer v. State, 637 N.E.2d 187 (Ind. App. 1994), Court of Appeals – Third District – 6/30/94

– Δ was not convicted of Operating with a certain BAC. Therefore, the breath test was not necessary to sustain the conviction. Also, the radio report that Δ had been driving the vehicle shortly before he was discovered on the side of the road was sufficient evidence to show that the breathalyzer had been given within 3 hours of operating.

– State v. Edmund, 616 N.E.2d 377 (Ind. App. 1993) Court of Appeals – Second District – 6/22/93

– An officer arrived at the scene of a two car accident. Δ was taken to the hospital. The officer saw Δ sleeping in the emergency room. The officer woke Δ up and observed slurred speech and watery eyes. A blood test revealed that Δ had a BAC of 0.10. Δ was charged with OVWI and Operating Above 0.10. Δ argued that the blood test should be excluded, because it was not given within 3 hours of the accident.

– “The only effect of the failure to perform the test within the statutory timeframe is that the State is deprived of the rebuttable presumption provided in Section 15(b). Thus, the delay is relevant only to the rebuttable presumption, not the admissibility of the chemical test.” Edmund at 380.

– Mordacq v. State, 585 N.E.2d 22 (Ind. App. 1992) Court of Appeals – Fifth District – 1/21/92

– “It is commonly understood that the drinker’s BAC varies over time, as the physiological processes of absorption and oxidation run their course.” Mordacq at 24.

– “[T]he three-hour limit . . . begins not from the moment an officer ideates probable cause, but rather from the moment at which the vehicle was operated. Mordacq at 26.

– Because the State failed to show that Δ had a BAC of 0.10 at the time of operating, the conviction is reversed.

Nurse Blood Draws

– State v. Hunter, 898 N.E.2d 455 (Ind. App. 2008) Court of Appeals – 12/30/08

– After the trial court suppressed evidence of a blood draw, the State appealed.

– “Under IC 9-30-6-6, the State failed to present evidence that Nurse VanContron was ‘acting under the direction of or under a protocol prepared by a physician’ [and] the State failed to present any evidence that Nurse VanContron was ‘a person trained in obtaining bodily samples.’” Hunter at 459.

– “Further, we do not find that because a search warrant directed hospital personnel to obtain a bodily substance sample, such should not trump and/or negate the legislature’s statutory requirements outlining the prescribed protocol for obtaining such samples.” Hunter at 459.

– The blood draw result was properly suppressed.

Previous Convictions

– IC § 9-13-2-130 Previous conviction of operating while intoxicated

Previous conviction of operating while intoxicated” means a previous conviction:

(1) in Indiana of:

(A) an alcohol related or drug related crime under Acts 1939, c.48, s.52, as amended, IC 9-4-1-54 (repealed September 1, 1983), or IC 9-11-2 (repealed July 1, 1991); or

(B) a crime under IC 9-30-5-1 through IC 9-30-5-9; or

(2) in any other jurisdiction in which the elements of the crime for which the conviction was entered are substantially similar to the elements of a crime described in IC 9-30-5-1 through IC 9-30-5-9.

State v. Rans, 739 N.E.2d 164 (Ind. App. 2000)

– Δ had a previous conviction in Michigan for Operating a Vehicle While Visibly Impaired. Δ was charged with OVWI, a class A misdemeanor, and OVWI with a Previous Conviction Within 5 Years, a class D felony. Δ pled guilty to the misdemeanor charge, and was acquitted of the felony charged. The State appealed, arguing that the Michigan conviction was a “previous conviction of operating while intoxicated” under IC 9-30-5-3. (At the time of this case, there was no OVWI as a C Misdemeanor in Indiana.)

– “Penal statutes are to be strictly construed against the State to avoid enlarging them by intendment or implication beyond the fair meaning of the language used.” Rans at 166.

– The Michigan statute requires “visible impairment” while the Indiana statute requires Endangerment. Therefore, the degree of intoxication required in Michigan is lower. As a result, the Michigan statute is not “substantially similar” to the Indiana statute.

– The defendant is not guilty of OVWI with a Previous Conviction Within 5 Years.

Mann v. State, 754 N.E.2d 544 (Ind. App. 2001)

– After being convicted of OVWI as a Class D Felony, Δ appealed, arguing that the prior conviction in Ohio was not substantially similar.

– Ohio Revised Code § 4511.19(A)(3) states: (A) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if any of the following apply: . . . (3) The person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath.

– The two statutes are substantially similar.

– The conviction OVWI as a Class D Felony was proper.

Statutes

– IC § 9-30-5-1Class C misdemeanor; defense

(a) A person who operates a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol but less than 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;

commits a Class C misdemeanor.

(b) A person who operates a vehicle with an alcohol concentration equivalent 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;

commits a Class A misdemeanor.

(c) A person who operates a vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s body commits a Class C misdemeanor.

(d) It is a defense to subsection (c) that the accused person consumed the controlled substance in accordance with a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner’s professional practice.

– IC § 9-30-5-2 Class A misdemeanor

(a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C misdemeanor.

(b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.

– IC § 9-30-5-3Level 6 or Level 5 felony; previous convictions; passenger less than 18 years of age

(a) Except as provided in subsection (b), a person who violates section 1 or 2 of this chapter commits a Level 6 felony if:

(1) the person has a previous conviction of operating while intoxicated that occurred within the five (5) years immediately preceding the occurrence of the violation of section 1 or 2 of this chapter; or

(2) the person:

(A) is at least twenty-one (21) years of age;

(B) violates section 1(b) or 2(b) of this chapter; and

(b) A person who violates section 1 or 2 of this chapter or subsection (a)(2) commits a Level 5 felony if:

(1) the person has a previous conviction of operating while intoxicated causing death (IC 9-30-5-5); or

(2) the person has a previous conviction of operating while intoxicated causing serious bodily injury (IC 9-30-5-4).

– IC § 9-30-5-4 Classification of offense; serious bodily injury

(a) A person who causes serious bodily injury to another person when operating a vehicle:

(1) with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per:

(A) one hundred (100) milliliters of the person’s blood; or

(B) two hundred ten (210) liters of the person’s breath;

(2) with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s body; or

(3) while intoxicated;

commits a Level 6 felony. However, the offense is a Level 5 felony if the person has a previous conviction of operating while intoxicated within the five (5) years preceding the commission of the offense.

(b) A person who violates subsection (a) commits a separate offense for each person whose serious bodily injury is caused by the violation of subsection (a).

(c) It is a defense under subsection (a)(2) that the accused person consumed the controlled substance in accordance with a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner’s professional practice.

– IC § 9-30-5-5 Classification of offense; death; death of law enforcement animal

(a) A person who causes the death of another person when operating a vehicle:

(1) with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per:

(A) one hundred (100) milliliters of the person’s blood; or

(B) two hundred ten (210) liters of the person’s breath;

(2) with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s blood; or

(3) while intoxicated;

commits a Level 5 felony, except as provided in subsection (b).

(b) A person who causes the death of another person when operating a vehicle under the conditions set forth in subsection (a)(1), (a)(2), or (a)(3) commits a Level 4 felony if:

(1) the person operating the vehicle has a previous conviction of operating while intoxicated within the ten (10) years preceding the commission of the offense;

(2) the person operating the vehicle knows that the person’s driver’s license, driving privilege, or permit is suspended or revoked for a previous conviction for operating a vehicle while intoxicated; or

(3) the driving privileges of the person operating the vehicle are suspended under IC 9-30-10 because the person is a habitual traffic violator.

(1) with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per:

(A) one hundred (100) milliliters of the person’s blood; or

(B) two hundred ten (210) liters of the person’s breath; or

(2) with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s blood;

commits a Level 4 felony.

(d) A person who causes the death of a law enforcement animal (as defined in IC 35-46-3-4.5) when operating a vehicle:

(1) with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per:

(A) one hundred (100) milliliters of the person’s blood; or

(B) two hundred ten (210) liters of the person’s breath; or

(2) with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s blood;

commits a Level 6 felony.

(e) A person who commits an offense under subsection (a), (b), (c), or (d) commits a separate offense for each person or law enforcement animal whose death is caused by the violation of subsection (a), (b), (c), or (d).

(f) It is a defense under subsection (a), (b), (c), or (d) that the person accused of causing the death of another person or a law enforcement animal when operating a vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s blood consumed the controlled substance in accordance with a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner’s professional practice.

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