                                                                                FILED
                                                                            Apr 26 2019, 8:38 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Darren Bedwell                                              Curtis T. Hill, Jr.
      Marion County Public Defender                               Attorney General of Indiana
      Appellate Division                                          Sierra A. Murray
      Indianapolis, Indiana                                       Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Alfonso Artigas,                                            April 26, 2019
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  18A-CR-2877
              v.                                                  Appeal from the Marion Superior
                                                                  Court
      State of Indiana,                                           The Honorable Steven J. Rubick,
      Appellee-Plaintiff.                                         Magistrate
                                                                  Trial Court Cause No.
                                                                  49G10-1802-CM-6864



      Bailey, Judge.



                                            Case Summary
[1]   Following a bench trial, Alfonso Artigas (“Artigas”) was found not guilty of

      operating a vehicle while intoxicated endangering a person, a Class A



      Court of Appeals of Indiana | Opinion 18A-CR-2877 | April 26, 2019                            Page 1 of 6
      misdemeanor.1 He was, however, found guilty of Class C misdemeanor

      operating a vehicle with an alcohol concentration equivalent to at least .08 but

      less than .15 g/100mL of blood2—even though the stipulated blood test

      presented only a range from .07 to .084 g/100mL. Artigas challenges the

      sufficiency of the evidence supporting that conviction. We reverse.



                                Facts and Procedural History
[2]   Around 3:00 a.m. on February 17, 2018, several officers from the Indianapolis

      Metropolitan Police Department (“IMPD”) were investigating a vehicle

      collision. Only one lane of traffic was open. While that investigation was

      underway, an officer spotted a vehicle approaching at a high rate of speed.

      Several officers yelled and IMPD Officer Duran Brown (“Officer Brown”) used

      his flashlight to alert the driver to stop. After there was more yelling, the

      vehicle squealed to an abrupt stop, nearly striking Officer Brown.


[3]   Officer Brown approached the driver—Artigas—who had the odor of alcohol

      on his breath, slurred speech, and red, glassy eyes. Artigas said that he spoke

      little English. Officer Brown attempted to administer field sobriety tests but

      was unable to do so because of the language barrier between them. Officer

      Brown then obtained a search warrant and transported Artigas to a hospital




      1
          Ind. Code § 9-30-5-2(a) & -(b).
      2
          I.C. § 9-30-5-1(a).


      Court of Appeals of Indiana | Opinion 18A-CR-2877 | April 26, 2019          Page 2 of 6
      where a blood draw was conducted at 3:53 a.m. An ensuing laboratory report

      indicated that Artigas’s blood had “a whole blood ethyl alcohol concentration

      in the range of 0.070 to 0.084% w/v (0.070 to 0.084 g/100mL).” Exhibit 1.3


[4]   The State charged Artigas as follows: Count I—operating a vehicle while

      intoxicated endangering a person; Count II— operating a vehicle with an

      alcohol concentration equivalent to at least .08 but less than .15 g/100mL of

      blood; and Count III—driving without a license as a class C misdemeanor.4 At

      a bench trial, Officer Brown was the sole witness and the laboratory report was

      admitted by stipulation. Artigas was found not guilty of Count I and guilty of

      the remaining counts. He received partially suspended, sixty-day concurrent

      sentences on Counts II and III along with 180 days of probation on Count II.


[5]   Artigas now appeals.



                                   Discussion and Decision
[6]   When reviewing a challenge to the sufficiency of evidence, “[w]e neither

      reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,

      210 (Ind. 2016). We view the “evidence and reasonable inferences drawn

      therefrom in a light most favorable to the conviction, and will affirm ‘if there is




      3
        It seems the report offered a range of possible values—instead of a specific measurement—because, “[d]ue
      to the condition of the blood,” the forensic scientist tested the plasma-serum ethyl alcohol concentration, not
      the whole blood ethyl alcohol concentration, and converted the measurement to the range. Id.
      4
          I.C. § 9-24-18-1.


      Court of Appeals of Indiana | Opinion 18A-CR-2877 | April 26, 2019                                  Page 3 of 6
      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.’” Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013)

      (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)).


[7]   Artigas was charged and convicted under Indiana Code Section 9-30-5-1(a),

      under the portion of that statute criminalizing “operat[ing] 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 . . . one

      hundred (100) milliliters of the person’s blood.” In challenging his conviction,

      Artigas focuses on the report indicating that his blood alcohol concentration

      was equivalent to somewhere from .07 to .084 g/100mL. Pointing to this

      range—most of which falls below the statutory threshold—Artigas argues that

      “nothing in the record supports the conclusion beyond a reasonable doubt that

      Artigas’[s] actual whole blood alcohol concentration was at least [.080

      g/100mL], rather than below [0.080 g/100mL].” Br. of Appellant at 11.


[8]   The State counters that there was “evidence of [Artigas’s] whole blood alcohol

      concentration level, a range that included 0.08[] and above.” Br. of Appellee at

      10. According to the State, “law enforcement observations bolster the lab

      results offered.” Id. at 11. Indeed, the State suggests that the report, “in

      conjunction with the extensive testimony of [Artigas’s] impaired state offered

      by Officer Brown[,] allows a reasonable trier of fact to conclude that [Artigas]

      committed the charged offense beyond a reasonable doubt.” Id. at 9. The State

      asserts that Artigas seeks “a new standard” for convictions under the instant

      Court of Appeals of Indiana | Opinion 18A-CR-2877 | April 26, 2019         Page 4 of 6
      statute—that is, “a requirement that evidence of the whole blood ethyl alcohol

      concentration alone must definitively establish . . . impairment.” Id.


[9]   The State misplaces its focus on visible signs of impairment. Indiana Code

      Section 9-30-5-1(a) creates strict liability for operating a vehicle with a blood

      alcohol concentration within the specified range, irrespective of whether the

      operator exhibits signs of intoxication. Compare I.C. § 9-30-5-1 (criminalizing

      operating a vehicle based upon the alcohol concentration of blood or breath)

      with I.C. § 9-30-5-2 (criminalizing operating a vehicle “while intoxicated”). 5

      Indeed, under Indiana Code Section 9-30-5-1(a)—in contrast to Indiana Code

      Section 9-30-5-2(a)—the question is not whether a person was physically or

      mentally impaired by alcohol. Rather, to convict the defendant, the fact-finder

      must instead determine how much alcohol—down to hundredths of a gram—

      was in 100 milliliters of a person’s blood when that person operated a vehicle.

      Only the laboratory report was relevant to this inquiry. Indeed, evidence of

      visible intoxication is not probative of a particular scientific measurement.6




      5
        Prosecutors have discretion to choose their charges, see Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind.
      2001)—and, for whatever reason, the State sought a Class C misdemeanor conviction under this statute.
      Instead, the State could have focused on Indiana Code Section 9-30-5-2(a), which allows for a Class C
      misdemeanor conviction where a person—irrespective of measured blood alcohol concentration—“operates a
      vehicle while intoxicated.” This was a lesser-included offense of Count I, the Class A misdemeanor count of
      operating a vehicle while intoxicated endangering a person. See I.C. § 9-30-5-2. When arguing in support of
      the alcohol-related charges at trial, the State did not request a conviction for this lesser-included offense of
      Count I—and Artigas was found not guilty of that count. Nevertheless, in finding Artigas not guilty, the trial
      court remarked that “[t]here is not enough evidence to establish intoxication by virtue of the language
      barrier.” Tr. Vol. II at 19. Thus, even if the State had taken a different approach to the charges, it seems the
      trial court was not inclined to convict based upon evidence that Artigas was visibly intoxicated.
      6
       In this type of case, the State is in the predicament of having to prove a measurement it can never directly
      measure—that is, the State must prove that the defendant operated a vehicle with an alcohol concentration

      Court of Appeals of Indiana | Opinion 18A-CR-2877 | April 26, 2019                                  Page 5 of 6
[10]   Ultimately, a fact-finder is entitled to make inferences, but those inferences

       must be reasonable. See Tin Thang v. State, 10 N.E.3d 1256, 1258-60 (Ind.

       2014). Here, the State presented evidence that Artigas displayed signs of

       intoxication when he was pulled over around 3:00 a.m., and that his blood

       alcohol concentration was somewhere from .07 to .084 g/100mL at 3:53 a.m.

       From this evidence, a fact-finder could not conclude beyond a reasonable doubt

       that Artigas’s blood alcohol concentration was at least .08 g/100mL when he

       operated the vehicle. Thus, there is insufficient evidence to support a

       conviction as charged under Indiana Code Section 9-30-5-1(a).


[11]   Reversed.


       Riley, J., and Pyle, J., concur.




       equivalent to at least .08 g/100mL, but it cannot administer a chemical test until some point after the
       defendant operated a vehicle. See generally Pattison v. State, 54 N.E.3d 361, 366-69 (Ind. 2016) (discussing the
       burdensome expert technique of “retrograde extrapolation”). However, the State need not “present an expert
       at every trial to explain how alcohol metabolizes in the bloodstream.” Id. at 367. Rather, if the chemical test
       meets certain requirements, Indiana Code Section 9-30-6-15(b) provides for a rebuttable presumption of the
       defendant’s alcohol concentration equivalent. One requirement is that the “evidence establishes that . . . the
       person charged with the offense had an alcohol concentration equivalent to at least eight-hundredths (0.08)
       gram of alcohol per . . . one hundred (100) milliliters of the person’s blood at the time the test sample was
       taken.” I.C. § 9-30-6-15(b). The State does not suggest this presumption applies. We nevertheless note that
       this rebuttable presumption is inapplicable because the State offered evidence of a range of values—most of
       which were below the statutory threshold—and so the evidence did not “establish[]” the pertinent level. Id.

       Court of Appeals of Indiana | Opinion 18A-CR-2877 | April 26, 2019                                  Page 6 of 6
