MEMORANDUM DECISION                                                          FILED
                                                                        May 03 2017, 9:30 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
Andrew J. Baldwin                                        Curtis T. Hill, Jr.
Baldwin Kyle & Kamish                                    Attorney General of Indiana
Franklin, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Mohinder Singh,                                         May 3, 2017

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        41A05-1606-CR-1405
        v.                                              Appeal from the Johnson Superior
                                                        Court.
                                                        The Honorable Lance D. Hamner,
State of Indiana,                                       Judge.
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        41D03-1405-CM-582




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1405 May 3, 2017                 Page 1 of 9
                                         Statement of the Case
[1]   Mohinder Singh appeals his conviction of operating a motor vehicle while
                                                                                         1
      intoxicated in a manner endangering a person, a Class A misdemeanor. We

      affirm.


                                                    Issue
[2]   Singh raises one issue, which we restate as: whether the trial court abused its

      discretion in admitting evidence.


                                   Facts and Procedural History
[3]   On the evening of December 17, 2013, Brett Durham was driving in Johnson

      County when he stopped at a red light next to a black Camaro. Durham looked

      over at the Camaro’s driver, who was later identified as Singh. The light turned

      green, and as Durham accelerated he saw the Camaro briefly veer off the road

      into a snow-covered area before returning to the road. Next, Singh cut across

      two lanes of traffic and got in front of Durham before turning left into an

      apartment complex. Durham drove on, but as he looked in his rearview mirror

      he saw the Camaro hit an obstruction at the entrance to the apartment complex

      and “go airborne.” Tr. Vol. I, p. 41.




      1
          Ind. Code § 9-30-5-2 (2001).



      Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1405 May 3, 2017   Page 2 of 9
[4]   Durham turned around and drove back to the apartment complex. The

      Camaro had come to a stop near a pond, and its rear was almost in the water.

      Singh had left the scene, but Singh’s son, Manpreet Singh, was present.


[5]   Officer Richard Kelly of the Greenwood Police Department was dispatched to

      investigate the accident. He encountered Durham and Manpreet at the pond.

      Manpreet told Officer Kelly that his father had called him to say he had been in

      an accident. Manpreet further stated that Singh had gone to his apartment.

      After speaking with Manpreet and Durham, Officer Kelly and Manpreet went

      to the apartment, where Singh was passed out in a chair.


[6]   Singh’s wife was present, and she expressed concern that Singh was having a

      medical emergency because he was not supposed to mix alcohol with his

      medicine. Officer Kelly requested an ambulance and a portable breath test

      device to check Singh for the presence of alcohol.


[7]   The paramedics arrived as Singh woke up. Singh’s portable breath test

      indicated the presence of alcohol. Singh admitted to Officer Kelly that he was

      the driver of the Camaro but denied having consumed alcohol. As they

      conversed, Officer Kelly noted that Singh’s eyes were red and watery, his

      speech was slurred, and he had the odor of alcohol.


[8]   The paramedics decided not to take Singh to the hospital. Singh was unable to

      stand and exhibited poor dexterity, so Officer Kelly helped him up and led him

      to the police car to take him to the station. Officer Kelly encountered Durham



      Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1405 May 3, 2017   Page 3 of 9
       again at the entrance to the apartment complex. Durham identified Singh as

       the driver of the Camaro.


[9]    At the station, Officer Kelly attempted to have Singh take another breath test

       for alcohol on a certified Datamaster machine but determined that Singh was

       uncooperative, as we discuss in more detail below. Officer Kelly then called a

       deputy prosecutor to request a search warrant for a blood draw and prepared a

       probable cause affidavit. A judge issued the search warrant after a telephonic

       hearing, and Officer Kelly drove Singh to a hospital. Although Singh

       continued to be uncooperative, hospital staff successfully took a blood sample.

       Testing revealed a blood alcohol concentration of 0.28%.


[10]   The State charged Singh with operating a vehicle while intoxicated in a manner

       endangering a person, a Class A misdemeanor; operating a vehicle with an

       alcohol concentration of at least .15 grams of alcohol per one hundred

       milliliters of blood, a Class A misdemeanor; operating a vehicle while

       intoxicated, a Class C misdemeanor; and operating a vehicle with an alcohol

       concentration of at least .08 but less than .15 grams of alcohol per one hundred

       milliliters of blood, a Class C misdemeanor.


[11]   Singh filed a “verified petition for hearing on refusal to submit to a certified

       chemical test.” Appellant’s App. p. 3. The trial court denied his petition after a

       hearing. Later, Singh filed a motion to suppress the results of his blood test.

       The court held a hearing and denied the motion.




       Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1405 May 3, 2017   Page 4 of 9
[12]   A jury determined Singh was guilty of the first three charges but not guilty of

       operating a vehicle with an alcohol concentration of at least .08 but less than

       .15 grams of alcohol per one hundred milliliters of blood. The court entered a

       judgment of conviction on only one charge, operating a vehicle while

       intoxicated in a manner endangering a person, and sentenced Singh

       accordingly. This appeal followed.


                                    Discussion and Decision
[13]   Singh claims the trial court should have granted his motion to suppress the

       blood test results. He appeals following a completed trial, so the issue is more

       appropriately framed as whether the court abused its discretion in admitting the

       evidence at trial. Scisney v. State, 55 N.E.3d 321, 323 (Ind. Ct. App. 2016), trans.

       denied. We will reverse a ruling on the admission of evidence only for an abuse

       of that discretion, which occurs when the ruling is clearly against the logic and

       effect of the facts and circumstances and the error affects a party’s substantial

       rights. Id.


[14]   Singh argues the blood test was inadmissible because he claims Officer Kelly

       intentionally withheld crucial information from the court when seeking the

       search warrant, thereby violating Singh’s rights under the Fourth Amendment

       to the United States Constitution. The Fourth Amendment requires probable

       cause for the issuance of a search warrant. Keeylen v. State, 14 N.E.3d 865, 871

       (Ind. Ct. App. 2014), clarified on reh’g, 21 N.E.3d 840 (2014), trans. denied. In

       deciding whether to issue a search warrant, the task of the issuing magistrate is


       Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1405 May 3, 2017   Page 5 of 9
       simply to make a practical, common-sense decision whether, given the

       circumstances set forth in the affidavit, there is a fair probability that evidence

       of a crime will be found in a particular place. Id.


[15]   When a defendant alleges that a finding of probable cause is invalid due to the

       omission of crucial facts, the defendant must: (1) make a substantial

       preliminary showing that the police affiant engaged in deliberate falsehood or

       reckless disregard for the truth in omitting information from the affidavit; and

       (2) show that probable cause would no longer exist if such omitted information

       were considered by the issuing judge. Id. at 872 (quotations omitted). We are

       concerned only with omissions that are designed to mislead or are made in

       reckless disregard of whether they would mislead the magistrate. Id.

       (quotations omitted).


[16]   In this case, Singh alleged at the suppression hearing that during the probable

       cause hearing Officer Kelly misled the court by stating that while Singh was at

       the police station, Officer Kelly had read the implied consent statute to him,
                                                                                  2
       and he had refused to take the Datamaster breath test. Officer Kelly did not

       also tell the court that Singh had later attempted to take the test, but the results

       were incomplete.


[17]   Singh bore the burden of establishing an intent to mislead or reckless disregard

       for the truth on the part of Officer Kelly. There is no evidence that Officer



       2
           Singh has not included his motion to suppress in his Appellant’s Appendix.


       Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1405 May 3, 2017   Page 6 of 9
       Kelly attempted to mislead the magistrate. One could reasonably surmise that

       Singh’s attempt to take the Datamaster test was not undertaken in good faith,

       and Officer Kelly could have concluded that Singh was in effect not complying

       with the implied consent statute. Officer Kelly told the jury that Singh was

       uncooperative during the process, and while he was on the phone with the

       deputy prosecutor to seek the search warrant, Singh was “yelling, screaming,

       cussing at me so loud.” Tr. Vol. I, pp. 89-90.


[18]   In any event, probable cause would have existed even if Officer Kelly had told

       the magistrate that Singh had later tried to take the Datamaster test but the

       results were inconclusive. The inconclusive result did not detract from Officer

       Kelly’s observations that Singh had an odor of alcoholic beverage, slurred

       speech, bloodshot eyes, and poor manual dexterity, all of which he mentioned

       in the probable cause affidavit. He also stated in the affidavit that a portable

       breath test indicated the presence of alcohol. This evidence would have been

       sufficient to establish probable cause. See Kolish v. State, 949 N.E.2d 856, 858-

       59 (Ind. Ct. App. 2011) (officer’s observations of defendant established a fair

       probability that blood contained evidence of a crime), trans. denied.


[19]   Singh further argues that Officer Kelly lied in his post-arrest report by stating

       that a witness, Durham, had told him that he had helped Singh out of his

       Camaro and watched Singh walk away when, in fact, Durham testified at trial

       that he did not see Singh at the scene of the accident. The record does not

       demonstrate that Officer Kelly lied. At trial, Officer Kelly denied making up



       Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1405 May 3, 2017   Page 7 of 9
       the statement in his report. Instead, he acknowledged there was a discrepancy

       and stated he did not know the origin of the discrepancy.


[20]   Further, even if a reasonable person could conclude Officer Kelly lied in the

       post-arrest report, the report was irrelevant to the determination of probable

       cause for the blood draw, which occurred before the report was written. Officer

       Kelly did not state during the probable cause hearing that Durham told him he

       helped Singh out of the car. Furthermore, Singh cross-examined Officer Kelly

       about the discrepancy at trial, which allowed the jury to weigh the impact of the

       discrepancy on Officer Kelly’s credibility.


[21]   Next, Singh claims the results of the blood draw were inadmissible because

       Officer Kelly failed to comply with the approved procedures for a Datamaster

       breath test. Specifically, 260 Indiana Administrative Code section 2-4-1 (2014)

       provides, in relevant part:

               (4) If ‘subject sample incomplete’ is printed on the instrument
               report, perform an additional breath test beginning with STEP
               TWO and proceeding through STEP SIX. If ‘subject sample
               incomplete’ is printed on the instrument report of this additional
               breath test:
               (A) obtain an alternate chemical test for ethanol; or
               (B) perform a breath test on another breath test instrument.
               If the ‘subject sample incomplete’ was caused by the lack of
               cooperation of the subject, the breath test operator should record
               that the test was refused.

[22]   Singh argues that when he tried to take the test and the result was incomplete,

       Officer Kelly should have tried again and then, depending on the results of the

       Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1405 May 3, 2017   Page 8 of 9
       retest, either tested him a different way or recorded that the test was refused.

       Instead, Officer Kelly sought a search warrant for a blood draw.


[23]   Any deviation from the procedure for the Datamaster breath test did not detract

       from the issuing magistrate’s probable cause determination. Singh had already

       refused to take the test once and was noncooperative throughout the process.

       In addition, regardless of the Datamaster test results, Officer Kelly had

       observed and stated in the affidavit that Singh had an odor of alcoholic

       beverage, slurred speech, bloodshot eyes, and poor manual dexterity, all of

       which provided independent probable cause for the search warrant.


[24]   Further, there is no evidence that any irregularities in the Datamaster testing

       process affected the validity of the blood draw test results. In general,

       “evidence of the alcohol concentration that was in the blood” of a defendant at

       the time of the violation or within the allowed testing time, “as shown by an

       analysis of the person’s breath, blood, urine, or other bodily substance,” is

       admissible for purposes of offenses including the one at issue here. Ind. Code §

       9-30-6-15 (2001). For these reasons, the trial court did not abuse its discretion

       in admitting the blood draw test results.


                                                Conclusion
[25]   For the reasons stated above, we affirm the judgment of the trial court.


[26]   Affirmed.


       Kirsch, J., and Bradford, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1405 May 3, 2017   Page 9 of 9
