                                                                         FILED
                                                                     Jan 18 2017, 8:27 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jerry T. Drook                                             Curtis T. Hill
Marion, Indiana                                            Attorney General of Indiana
                                                           Caryn N. Szyper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Elberta N. Jackson,                                        January 18, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           27A02-1607-CR-1717
        v.                                                 Appeal from the Grant Superior
                                                           Court
State of Indiana,                                          The Honorable Warren Haas,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           27D03-1601-CM-13



Riley, Judge.




Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017                  Page 1 of 13
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Elberta N. Jackson (Jackson), appeals her conviction for

      operating a vehicle with an alcohol concentration equivalent (ACE) to at least

      0.15, a Class A misdemeanor, Ind. Code § 9-30-5-1(b)(1); resisting law

      enforcement, a Class A misdemeanor, I.C. § 35-44.1-3-1(a)(1); and disorderly

      conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a)(2).


[2]   We affirm.


                                                     ISSUES

[3]   Jackson raises two issues on appeal, which we restate as follows:

      (1) Whether the State presented sufficient evidence to support Jackson’s

      conviction for operating a vehicle with an ACE to at least 0.15 beyond a

      reasonable doubt; and

      (2) Whether Jackson’s due process rights were violated by the imposition of a

      two-year administrative driver’s license suspension.


                            FACTS AND PROCEDURAL HISTORY

[4]   At 1:10 a.m. on January 19, 2016, officers from the Marion Police Department

      were dispatched to the Maplewood Trailer Court, located at 1515 South Miller

      Avenue in Marion, Grant County, Indiana, based on a report that a vehicle had

      struck a residence. At least four police officers responded to the scene,

      including Officer George Kilgren (Officer Kilgren) and Officer Joshua Swanson

      (Officer Swanson). Upon arrival, the officers observed that an older model

      silver Buick had crashed into one of the trailers, causing significant damage to

      Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017   Page 2 of 13
      both the vehicle and the home. Fortunately, although the residents were home

      at the time of the crash, nobody inside the trailer was injured.


[5]   At the time, Jackson was standing in the yard and was visibly irate. Even

      though Jackson was screaming and swearing, Officer Kilgren was able to

      discern through her rantings that she had been driving the Buick when her

      passenger suddenly reached over and jerked the wheel, causing them to leave

      the roadway and smash into the trailer. Officer Swanson opened the passenger-

      side door, where Jackson’s passenger was still sitting. The passenger informed

      Officer Swanson that she could not feel her legs or hips, so Officer Swanson

      comforted her until emergency medical personnel arrived. Meanwhile, Jackson

      continued to act belligerently toward the officers, despite numerous warnings to

      quiet down.


[6]   As Jackson threatened and insulted the officers and her passenger, Officer

      Kilgren detected the odor of alcohol on her breath. When questioned, Jackson

      admitted that she and her passenger had been at a party, where she had

      consumed “a couple drinks.” (Tr. p. 18). Officer Kilgren asked Jackson to

      submit to a portable breathalyzer test, but Jackson refused. Officer Kilgren

      advised Jackson of Indiana’s implied consent law, but Jackson still refused and

      continued to scream. As a result, the officers advised Jackson that she was

      being arrested. Jackson struggled and flailed as both Officer Kilgren and

      Officer Swanson attempted to place her in handcuffs, and, because she refused

      to walk to the squad car, the officers were forced to drag her.



      Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017   Page 3 of 13
[7]   Based on Jackson’s refusal to submit to a portable breathalyzer test, Officer

      Kilgren applied for a search warrant to obtain a sample of her blood. The

      warrant was granted at 2:35 a.m., and a phlebotomist at Marion General

      Hospital completed the blood draw at 3:14 a.m. The Indiana State Department

      of Toxicology tested the blood sample and determined that Jackson’s ACE was

      0.183.


[8]   The same day, the State filed an Information, charging Jackson with Count I,

      operating a vehicle while intoxicated in a manner that endangers a person, a

      Class A misdemeanor, I.C. § 9-30-5-2(b); Count II, resisting law enforcement, a

      Class A misdemeanor, I.C. § 35-44.1-3-1(a)(1); and Count III, disorderly

      conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a)(2). On January 29, 2016,

      the State charged Jackson with Count IV, criminal mischief, a Class B

      misdemeanor, I.C. § 35-43-1-2(a). On June 28, 2016, the State amended Count

      I of the Information to charge Jackson with operating a vehicle with an ACE to

      at least 0.15, a Class A misdemeanor, I.C. § 9-30-5-1(b)(1).


[9]   On June 29, 2016, the trial court conducted a bench trial. At the close of the

      evidence, the trial court found Jackson guilty of Counts I, II, and III, but not

      guilty of Count IV. Accordingly, the trial court entered a judgment of

      conviction for operating a vehicle with an ACE to at least 0.15 as a Class A

      misdemeanor, resisting law enforcement as a Class A misdemeanor, and

      disorderly conduct as a Class B misdemeanor. Thereafter, the trial court

      imposed concurrent sentences of 200 days, 180 days, and 180 days,

      respectively. In addition, the trial court ordered the suspension of Jackson’s

      Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017   Page 4 of 13
       driving privileges “for 182 [d]ays consecutive to the administrative suspension

       for chemical test refusal on [Jackson’s] driving record ending on January 19,

       2018.” (Appellant’s App. Vol. II, p. 29). On July 1, 2016, the trial court issued

       an Amended Judgment of Conviction and Sentencing Order Including License

       Suspension, which removed any reference to Jackson’s driver’s license

       suspension.


[10]   Jackson now appeals. Additional facts will be provided as necessary.


                                     DISCUSSION AND DECISION

                                            I. Sufficiency of the Evidence

[11]   Jackson claims that the State presented insufficient evidence to prove that her

       blood alcohol level—i.e., ACE—was at least 0.15 at the time she operated her

       vehicle. 1 In reviewing a challenge to the sufficiency of the evidence, it is well

       established that our court neither reweighs evidence nor assesses the credibility

       of witnesses. Jarrell v. State, 852 N.E.2d 1022, 1028 (Ind. Ct. App. 2006). We

       will affirm the conviction so long as “there is substantial evidence of probative

       value supporting each element of the crime from which a reasonable trier of fact

       could have found the defendant guilty beyond a reasonable doubt.” Id. It is the

       role of the fact-finder to decide “whether the evidence in a particular case




       1
         Jackson does not challenge the sufficiency of the evidence supporting her convictions for resisting law
       enforcement and disorderly conduct.

       Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017                       Page 5 of 13
       sufficiently proves each element of an offense, and we consider conflicting

       evidence most favorably to the fact-finder’s determination.” Id.


[12]   In order to convict Jackson of a Class A misdemeanor, the State was obligated

       to prove that she “operate[d] a vehicle with an [ACE] 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.” I.C.

       § 9-30-5-1(b). In this case, the results of Jackson’s blood draw indicated that her

       ACE was 0.183—well above the statutory threshold. Nevertheless, Jackson

       insists that the State failed to prove that her ACE was at least 0.15 at the time

       she operated her vehicle because the State offered no evidence that the blood

       draw was completed within the requisite period of time.


[13]   Indiana Code section 9-30-6-15(b) provides:

               If, in a prosecution for an offense under [Indiana Code chapter]
               9-30-5, evidence establishes that:


               (1) a chemical test was performed on a test sample taken from the
                   person charged with the offense within the period of time
                   allowed for testing under section 2 of this chapter; and


               (2) the person charged with the offense had an [ACE] to at least
                   eight-hundredth (0.08) gram of alcohol per:


                        (A) one hundred (100) milliliters of the person’s blood at
                            the time the test sample was taken; or


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

       Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017   Page 6 of 13
         the trier of fact shall presume that the person charged with the
         offense had an [ACE] to at least eight-hundredths (0.08) gram of
         alcohol per one hundred (100) milliliters of the person’s blood or
         per two hundred ten (210) liters of the person’s breath at the time
         the person operated the vehicle. However, this presumption is
         rebuttable.


Although this statute specifically refers to an ACE of at least 0.08, our court has

previously stated that the same concept applies in situations concerning higher

blood alcohol levels because “the parallel use of the phrase ‘at least’ indicates

that a timely [ACE] test result permits a presumption that the defendant had an

identical [ACE] at the time he or she was driving.” Jarrell, 852 N.E.2d at 1029.

The blood or breath test “must be administered within three (3) hours after the

law enforcement officer had probable cause to believe the person committed an

offense under [Indiana Code chapter] 9-30-5.” I.C. § 9-30-6-2(c). 2 Thus, if

there is proof that the chemical test occurred within three hours of the accident

(i.e., the time Jackson last operated her vehicle), the trial court, as the fact-finder

in this case, was presumably entitled to relate Jackson’s ACE at the time of the

blood draw back to the time of the accident. See Mannix v. State, 54 N.E.3d

1002, 1009 (Ind. Ct. App. 2016).




2
  If a chemical test is not administered within the three-hour window, the “test results are still admissible to
prove blood alcohol at the time of a violation if the State produces additional evidence of such [ACE] by
means of extrapolation.” Allman v. State, 728 N.E.2d 230, 234 (Ind. Ct. App. 2000) (internal quotation marks
omitted).

Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017                        Page 7 of 13
[14]   It is undisputed that Jackson’s blood was drawn at 3:14 a.m. and her ACE was

       0.183. Thus, in order for the State to rely on the statutory presumption that her

       ACE was 0.183 at the time she last operated her vehicle, it must show that the

       accident occurred no later than 12:14 a.m. Here, the evidence establishes that

       the police officers were dispatched to the scene at 1:10 a.m.; however, Jackson

       posits that there is no evidence to prove what time the accident actually

       occurred. Jackson relies on Mordacq v. State, 585 N.E.2d 22, 23 (Ind. Ct. App.

       1992), where, at approximately 2:30 a.m., an officer observed a vehicle parked

       alongside the road with its engine running. An hour later, the officer returned

       to find that the vehicle was still there, and the defendant was asleep in the

       driver’s seat. Id. After rousing the defendant and smelling alcohol on her

       breath, the police officer administered a breathalyzer test at 3:55 a.m., which

       demonstrated that the defendant had a blood alcohol level of 0.10. Id. Other

       than the defendant’s own estimate that she had parked her vehicle along the

       street at least two hours earlier, there was no evidence indicating whether she

       had operated the vehicle within the three hours preceding the breathalyzer test.

       Id. Accordingly, we held that the “State’s failure to prove the time [the

       defendant] operated her vehicle, to a degree precise enough to trigger a

       statutory presumption that incorporates a precise time limit, precludes

       evidentiary use of the presumption.” Id. at 27.


[15]   A few years after Mordacq, our court reached a similar conclusion in Allman,

       728 N.E.2d at 230. There, a police officer was dispatched to a car accident at

       approximately 10:00 p.m. Id. at 231. When the officer arrived, he observed a


       Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017   Page 8 of 13
       driver sitting in her vehicle off the side of the road, but no other vehicles or

       people were nearby. Id. The officer detected an odor of alcohol on the driver’s

       breath; following two invalid breathalyzer tests, the driver’s blood was drawn at

       12:28 a.m. and revealed a blood alcohol level of 0.104. Id. Although the

       defendant’s blood was drawn within three hours of the police dispatch, the

       statutory presumption was inapplicable because there was no evidence

       regarding when the accident occurred in order to relate the blood alcohol level

       back to the time of the accident. Id. at 234.


[16]   While there are factual similarities among these cases and the current case, we

       find that the circumstantial evidence present in the case at bar readily

       distinguishes it from Mordacq and Allman. In both Mordacq and Allman, an

       officer responded to a parked vehicle where there were no other witnesses, and

       there were no other facts from which it could be inferred that the drivers had

       operated their vehicles within the necessary timeframe. Conversely, Jackson

       crashed her vehicle into an occupied residence, causing substantial damage to

       the trailer and her vehicle. When the police officers arrived, Jackson had

       already exited the vehicle, but her passenger was still sitting in the front seat

       with the door shut, complaining of possible paralysis. It is undisputed that

       Jackson had been operating the vehicle at the time of the accident, and the

       police officers were dispatched at 1:10 a.m. It defies all notions of

       reasonableness to hypothesize—given the presence of the homeowners, the

       severity of the damage done to their trailer and Jackson’s vehicle, and the

       potentially serious injuries of Jackson’s passenger—that nearly an hour would


       Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017   Page 9 of 13
       have passed between the time of the accident and the summoning of the police

       (as the accident must have occurred no later than 12:14 a.m. in order for the

       statutory presumption to apply). Our role on appeal is to consider “the

       probative evidence supporting the judgment and the reasonable inferences that

       may be drawn [therefrom],” and here we find that it may be reasonably inferred

       from the evidence that Jackson operated her vehicle within the three hours

       preceding the blood draw. Dorsett v. State, 921 N.E.2d 529, 531 (Ind. Ct. App.

       2010). Accordingly, we affirm Jackson’s conviction for operating with an ACE

       to at least 0.15.


                                                     II. Due Process

[17]   Jackson also claims that her due process rights were violated because she

       received a two-year driver’s license suspension with “no notice from the State,

       either through a charging information or an infraction ticket, that she would

       possibly be found to have violated [Indiana Code section 9-30-7-5] during this

       bench trial, or that she risked the imposition of a two-year license suspension

       prior to trial or even during the trial.” (Appellant’s Br. pp. 14-15). 3 More

       specifically, Jackson contends that


                [t]he court had no authority to impose a penalty for an uncharged
                refusal infraction violation, and in doing so, the court denied



       3
          The State points out that Jackson has waived any due process claim by failing to object to the license
       suspension or raise such a due process argument at the time of her sentencing. It is well established that a
       claim may not be raised for the first time on appeal. See King v. State, 799 N.E.2d 42, 47 (Ind. Ct. App. 2003),
       trans. denied; cert. denied, 543 U.S. 817 (2004). Moreover, the record reveals that Jackson specifically
       acknowledged to the trial court that “there’s gonna be a two (2) year administrative suspension.” (Tr. p. 79).
       Nevertheless, waiver notwithstanding, we will address the merits of Jackson’s claim.

       Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017                       Page 10 of 13
               Jackson’s due process rights under the U.S. Constitution,
               amendments V and XIV, and the Indiana Constitution under
               Section 13 which holds that the accused shall have the right . . . to
               demand the nature and cause of the accusation against him, and to have
               a copy thereof, and ultimately prejudiced Jackson [sic] substantial
               rights.


       (Appellant’s Br. pp. 15-16) (alteration in original). We find no merit in

       Jackson’s claim.


[18]   Jackson’s reliance on Indiana Code section 9-30-7-5 is entirely misplaced

       because it governs the refusal to submit to a chemical test following an accident

       that results in serious injury or death. In such a situation, the refusal to submit

       to a portable breath test or chemical test is a Class C infraction (or a Class A

       infraction if the person has a prior operating while intoxicated conviction), and

       the court is required to suspend the individual’s driver’s license for a period of

       one or two years. I.C. § 9-30-7-5(a)-(b). On the other hand, because Jackson

       refused to submit to a chemical test following a law enforcement officer’s belief

       that she had committed the crime of operating with an ACE to at least 0.15,

       Jackson’s case is governed by Indiana Code chapter 9-30-6.


[19]   “A person who operates a vehicle impliedly consents to submit to [a] chemical

       test . . . as a condition of operating a vehicle in Indiana.” I.C. § 9-30-6-1.

       When a law enforcement officer has probable cause to believe that a person has

       committed the offense of operating while intoxicated (i.e., operating with an

       ACE to at least 0.15), the officer “shall offer the person the opportunity to

       submit to a chemical test.” I.C. § 9-30-6-2(a). If the individual refuses to

       Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017   Page 11 of 13
       submit to a chemical test, the law enforcement officer is required to “inform the

       person that refusal will result in the suspension of the person’s driving

       privileges.” I.C. § 9-30-6-7(a). If, after being warned of the consequences of

       refusing to submit to a chemical test, the person continues to refuse, the

       arresting officer must confiscate the person’s driver’s license and submit a

       probable cause affidavit to the prosecuting attorney. I.C. § 9-30-6-7(b). This

       affidavit must set forth the grounds for probable cause that the individual was

       operating while intoxicated and specify that the individual refused to submit to

       a chemical test when offered. I.C. § 9-30-6-8(b). Thereafter, if the trial court

       determines that there is probable cause that the individual violated the

       operating while intoxicated statute, the clerk of the court shall forward a copy

       of the probable cause affidavit to the Bureau of Motor Vehicles (BMV). I.C. §

       9-30-6-8(a).


[20]   Accordingly, contrary to Jackson’s claim, her refusal to submit to a chemical

       test was not a separate, chargeable infraction for which she was entitled to any

       notice. Rather, she received notice from Officer Kilgren that her refusal to

       submit to a chemical test when offered would result in a license suspension, and

       Indiana Code section 9-30-6-9(b) required the BMV to automatically suspend

       Jackson’s driving privileges. As the trial court noted during Jackson’s

       sentencing, she was convicted of operating while intoxicated in 2007. Based on

       this prior conviction, the BMV was obligated to suspend Jacksons’ driver’s

       license for a period of two years. I.C. § 9-30-6-9(b)(1)(B). Following its

       suspension of Jackson’s license, the BMV was required to mail notice of the


       Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017   Page 12 of 13
       suspension to Jackson and advise her of her right to judicial review under

       Indiana Code section 9-30-6-10. It appears that Jackson opted not to avail

       herself of this statutory remedy for challenging the administrative suspension of

       her license. Therefore, we find that Jackson’s due process rights were not

       violated.


                                                CONCLUSION

[21]   Based on the foregoing, we conclude that there is sufficient evidence to support

       Jackson’s conviction for operating a vehicle with an ACE to at least 0.15, and

       we further conclude that Jackson’s due process rights were not violated.


[22]   Affirmed.


[23]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Opinion 27A02-1607-CR-1717 | January 18, 2017   Page 13 of 13
