      MEMORANDUM DECISION                                                            FILED
                                                                                Dec 08 2017, 10:47 am
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                                     CLERK
      Memorandum Decision shall not be regarded as                               Indiana Supreme Court
                                                                                    Court of Appeals
      precedent or cited before any court except for the                              and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      James C. Spencer                                         Curtis T. Hill, Jr.
      Dattilo Law Office                                       Attorney General of Indiana
      Madison, Indiana
                                                               Justin F. Roebel
                                                               Supervising Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Dale A. Wells,                                           December 8, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               39A01-1705-CR-1119
              v.                                               Appeal from the Jefferson Superior
                                                               Court.
                                                               The Honorable Michael J. Hensley,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               39D01-1612-F6-1134




      Shepard, Senior Judge

[1]   Appellant Dale Wells contends the trial court wrongly determined that he

      refused a certified breath test. Concluding that Wells has not demonstrated that

      the evidence leads to just one conclusion that is opposite of the trial court’s

      decision, we affirm.


      Court of Appeals of Indiana | Memorandum Decision 39A01-1705-CR-1119 | December 8, 2017            Page 1 of 5
                               Facts and Procedural History
[2]   On December 21, 2016 at about 1 a.m., Indiana State Police Trooper Garrett

      observed a truck fail to stop at a stop sign. Trooper Garrett stopped the truck

      and noticed that the driver, identified as Wells, had glossy eyes and smelled of

      mouthwash. Garrett had Wells perform field sobriety tests, which he failed.

      Wells took a portable breath test and then agreed to take a certified breath test.

      Wells was taken to the jail for the certified breath test, but when it came time

      for him to provide a breath sample within the allotted time, he failed to do so.

      Trooper Garrett considered Wells’ failure to provide a breath sample as a

      refusal to submit to the chemical test.


[3]   Wells subsequently filed a request to determine the validity of his refusal.

      Following the hearing, the trial court determined that Wells’ actions constituted

      a refusal to submit to the test. Wells now appeals this decision.


                                   Discussion and Decision
[4]   Because the trial court denied Wells’ petition, he appeals from a negative

      judgment. See G.G.B.W. v. S.W., 80 N.E.3d 264 (Ind. Ct. App. 2017). In such

      circumstances, we will reverse the judgment only if it is contrary to law—that

      is, where the evidence leads to but one conclusion and the trial court reached

      the opposite conclusion. Id. In conducting our review, we consider the

      evidence in the light most favorable to the appellee. Id.


[5]   By operating a vehicle in Indiana, drivers impliedly consent to submit to a

      chemical test. Ind. Code § 9-30-6-1 (1991). If a police officer has probable
      Court of Appeals of Indiana | Memorandum Decision 39A01-1705-CR-1119 | December 8, 2017   Page 2 of 5
      cause to believe a driver is operating a vehicle while intoxicated, the officer

      must offer the driver a chemical test. Ind. Code § 9-30-6-2 (1994). Refusal to

      submit to the chemical test results in the suspension of driving privileges. Ind.

      Code § 9-30-6-9 (2015). A person whose driving privileges have been

      suspended in this manner may request a hearing to determine whether he or she

      did in fact refuse the chemical test. Ind. Code § 9-30-6-10 (2005). The person

      requesting the hearing has the burden of proof by a preponderance of the

      evidence, and the court’s order on the issue is a final, appealable judgment. Id.


[6]   Here, the trial court held a hearing on Wells’ petition filed pursuant to Section

      9-30-6-10. The evidence at the hearing showed that Wells initially agreed to

      take a chemical test. When Trooper Garrett and Wells arrived at the jail,

      Trooper Garrett began preparing the machine for the test. When the machine’s

      display screen instructs “Please blow,” the person has three minutes to perform.

      Trooper Garrett testified that he explained the time limit to Wells and that if he

      did not take the test it would be a refusal. Yet, when the time period began,

      Wells questioned him and argued with him even though he was directed at least

      three times to blow into the machine during the three-minute period. Trooper

      Garrett described the conversation:


              Because he asked me what he tested on the side of the road, and I
              told him. I said .169. When I told him that, he said, “Well, I
              already took your test.” I tried to explain to him, no, that’s a
              preliminary breath test that — you know, this is a certified test.
              He said, well, he wanted to talk to his lawyer. I explained to him
              that under Indiana Implied Consent, when you get a driver’s
              license, you imply that you give consent to take a certified test

      Court of Appeals of Indiana | Memorandum Decision 39A01-1705-CR-1119 | December 8, 2017   Page 3 of 5
              and that’s not an option. At that point he became even more
              argumentative saying I was violating his rights to an attorney,
              and the three-minute time lapse was over . . . .
      Tr. p. 10. Wells’ counsel asked Garrett if he made any effort to reset the

      machine and allow Wells another chance to take the test. The Trooper

      responded that, under the approved method of conducting the test, if Wells had

      made any effort to take the test, even if he provided an insufficient sample, the

      timer would have started over and he would have had a second chance.

      However, “if [the person is] being uncooperative and argumentative with [the

      officer] about the lawyer and ‘I’ve already taken my test,’ and doesn’t complete

      the test within those three minutes, then I tally it up as a refusal based off his

      actions not his words.” Id. at 11.


[7]   Wells, on the other hand, testified that he and Trooper Garrett maintained “idle

      chit-chat” for the duration of the three-minute testing period. Id. at 28. He

      testified that he did not ask about rights and calling an attorney until after the

      time period ended and the Trooper indicated it was a refusal.


[8]   A refusal to submit to a chemical test occurs when the conduct of the driver is

      such that a reasonable person in the officer’s position would be justified in

      believing the driver was capable of refusal and manifested an unwillingness to

      submit to the test. Burnell v. State, 56 N.E.3d 1146 (Ind. 2016). The Burnell

      court explained, “[E]ven without saying ‘no’ or ‘I refuse’ a refusal nonetheless

      may be established on the basis of conduct alone if the motorist has clearly been

      asked to take a test. In short a physical failure to cooperate can amount to a

      refusal.” Id. at 1150.
      Court of Appeals of Indiana | Memorandum Decision 39A01-1705-CR-1119 | December 8, 2017   Page 4 of 5
[9]    As Justice Slaughter recently wrote for a unanimous court, “The [Breath Test]

       Rule does not require an officer to administer a second test to a subject who

       obviously is not cooperating in providing one or more measurable, recordable

       breath samples. Officers must—and do—have discretion under the Rule to

       make the judgment call that the subject is being uncooperative and thus has

       refused the test. An officer needn’t go through the motions to administer a test

       to an obviously uncooperative subject. Common sense doesn’t require it, and

       neither does the Rule.” Hurley v. State, 75 N.E.3d 1074, 1080 (Ind. 2017).


[10]   The record here shows that, although first agreeing to take the test, Wells

       refused to follow the officer’s instructions, talked through the three-minute time

       period, insisted that he had already taken the test, claimed his rights had been

       violated, and was generally uncooperative, justifying a reasonable person in the

       officer’s position to believe that he manifested an unwillingness to submit to the

       test. Wells has failed to carry his burden of demonstrating the evidence leads to

       but one conclusion and the trial court reached an opposite conclusion.


[11]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 39A01-1705-CR-1119 | December 8, 2017   Page 5 of 5
