MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Oct 29 2019, 9:06 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel A. Moon                                           Curtis T. Hill, Jr.
Daniel Moon Law Office, LLC                              Attorney General of Indiana
Princeton, Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory A. Davis,                                        October 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1198
        v.                                               Appeal from the Gibson Superior
                                                         Court
State of Indiana,                                        The Honorable Robert Krieg,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         26D01-1811-CM-1209



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1198 | October 29, 2019                 Page 1 of 7
                                             Case Summary
[1]   Gregory A. Davis was charged with class A misdemeanor operating while

      intoxicated (“OWI”) with endangerment, class C misdemeanor OWI, and three

      infractions. The trial court found that he had knowingly refused a certified

      chemical breath test (“chemical test”) and suspended his driver’s license

      pursuant to Indiana Code Section 9-30-6-7. He filed a petition for judicial

      review of his license suspension, which the trial court denied in an order

      reaffirming its finding of a knowing refusal to submit to the chemical test.

      Davis now appeals the denial of his petition. We affirm.


                                 Facts and Procedural History
[2]   The facts most favorable to the judgment are as follows. Around 2:00 a.m. on

      November 2, 2018, Indiana State Trooper Taylor Fox was patrolling U.S.

      Highway 41, where the posted speed limit was sixty miles per hour. A vehicle

      passed him traveling at eighty-seven miles per hour. When the driver, Davis,

      saw his vehicle, he suddenly applied his brakes. Shortly thereafter, he passed a

      semi and accelerated to more than seventy-five miles per hour. He passed

      several other vehicles and changed lanes without signaling. Trooper Fox

      conducted a traffic stop, and as he stood at the window of Davis’s vehicle, he

      detected the odor of an alcoholic beverage. Davis had glazed eyes and poor

      balance, and his speech was slurred as he explained that he had been playing in

      a pool tournament. He admitted that he had consumed some alcoholic

      beverages. Trooper Fox explained that he was going to conduct some tests to

      ensure that Davis could safely operate his vehicle. Davis failed both field

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1198 | October 29, 2019   Page 2 of 7
      sobriety tests that he took and refused to take a third test. He took a portable

      breathalyzer test, which registered a blood alcohol concentration of .146.

      Trooper Fox informed Davis that he would need to undergo a chemical test and

      read him “implied consent from a card.” 1 Tr. Vol. 2 at 6. Davis initially agreed

      to submit to the chemical test, and Trooper Fox placed him in handcuffs and

      took him to the Gibson County Jail. Once there, Davis refused to take the

      chemical test and was remanded to the jail.


[3]   The State charged Davis with class A misdemeanor OWI with endangerment,

      class C misdemeanor OWI, and infractions for speeding, failure to signal, and

      an unsafe lane movement. At Davis’s initial hearing, the trial court found

      probable cause that Davis had refused to submit to a chemical test and

      suspended his driving privileges. Davis filed a petition for judicial review,

      requesting a judicial determination as to whether he had knowingly refused to

      take the chemical test. He claimed that Trooper Fox had failed to inform him

      that his refusal to submit to a chemical test would result in the suspension of his

      driving privileges. The trial court conducted a hearing and issued an order

      affirming its earlier finding that Davis had knowingly refused the chemical test.

      Davis now appeals. Additional facts will be provided as necessary.




      1
         Implied consent is based on the statutory provision that a person who operates a vehicle “impliedly
      consents” to submit to a chemical test as a condition of operating a vehicle in this state and is subject to
      license suspension if he refuses to do so. Ind. Code §§ 9-30-6-1, -7.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1198 | October 29, 2019                       Page 3 of 7
                                     Discussion and Decision
[4]   Davis challenges the trial court’s denial of his petition for judicial review. “The

      trial court’s denial of a petitioner’s petition for judicial review is a final

      appealable judgment in the manner of a civil action.” Burnell v. State, 56 N.E.3d

      1146, 1149-50 (Ind. 2016). As the petitioner below, Davis bore the burden of

      proof by a preponderance of the evidence. Id.; Ind. Code § 9-30-6-10(f). He

      therefore appeals from a negative judgment. Burnell, 56 N.E.3d at 1149-50.


              On appeal from a negative judgment, this Court will reverse the
              trial court only if the judgment is contrary to law. A judgment is
              contrary to law if the evidence leads to but one conclusion and
              the trial court reached an opposite conclusion. In determining
              whether the trial court’s judgment is contrary to law, we will
              consider the evidence in the light most favorable to the prevailing
              party, together with all reasonable inferences therefrom. We
              neither reweigh the evidence nor judge the credibility of
              witnesses. Further, [w]hen appealing from a negative judgment,
              a party has a heavy burden to establish to the satisfaction of the
              reviewing court that there was no basis in fact for the judgment
              rendered.


      Id. at 1150 (citations and quotation marks omitted).


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

      test provisions of [Indiana Code Chapter 9-30-6] as a condition of operating a

      vehicle in Indiana.” Ind. Code § 9-30-6-1. “If a person refuses to submit to a

      chemical test, the arresting officer shall inform the person that refusal will result

      in the suspension of the person’s driving privileges.” Ind. Code § 9-30-6-7(a). If

      he refuses to submit to a chemical test after having been advised that his refusal

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1198 | October 29, 2019   Page 4 of 7
      will result in the suspension of his driving privileges, the arresting officer is

      required either to obtain his driver’s license pending a hearing or to submit a

      probable cause affidavit to the prosecuting attorney. Ind. Code § 9-30-6-7(b).


[6]   Davis claims that Trooper Fox did not read him the card and that he therefore

      was not properly informed that he could lose his driver’s license for refusing to

      submit to a chemical test. The record shows that Davis initially agreed to take

      the chemical test but changed his mind after he arrived at the jail. He does not

      dispute that he, in fact, refused to take the chemical test. Instead, he asserts that

      his refusal did not amount to a “knowing” refusal because he was not properly

      informed concerning implied consent. See Hurley v. State, 75 N.E.3d 1074, 1078

      (Ind. 2017) (“a person does not refuse a chemical test if the officer failed to

      comply with the rules for conducting it.”) (emphasis added).


[7]   Trooper Fox testified with respect to implied consent, “I read it from a card

      there on scene. He [Davis] agreed to it, and we went to Gibson County

      Sheriff’s Department where the certified test is.” Tr. Vol. 2 at 6. He explained

      his standard procedure, saying, “I know it verbatim, but I never recite it

      verbatim.” Id. “I read it the same way every time. I have a backup card. I

      believe I have three of them in my pocket … I never just say it.” Id. at 14. He

      further explained, “Standard procedure is we just have to read them implied

      consent and go from there. We have to read it to them one time, offer them the

      chemical test, and proceed however they choose to proceed with either an

      acceptance or a refusal.” Id. at 7. He testified that he always reads implied

      consent to the driver at the scene of the traffic stop and typically again at the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1198 | October 29, 2019   Page 5 of 7
      jail, though not always. Id. at 7-8. He elucidated, “typically, if somebody has

      refused [the chemical test] on scene, upon reading it to them again, they will

      sometimes change their mind and then take the test. That wasn’t the case with

      [Davis].” Id. at 13.


[8]   Davis points to inconsistent evidence concerning whether Trooper Fox read

      him the implied consent at the jail. The trooper’s original affidavit indicated

      that he had done so, but video footage from the jail, admitted as an exhibit, did

      not capture any such reading during the time when Trooper Fox was setting up

      the chemical test. Trooper Fox explained that he used a template when

      composing his affidavits and that he either mistakenly failed to delete his

      standard information about rereading the implied consent or had already reread

      the implied consent before the video footage began. He nevertheless believed

      that he had reread it, as it was his practice to reread it and to fill out his

      paperwork accurately. He testified repeatedly and unequivocally that he read

      the implied consent to Davis at the scene of the traffic stop. The implied

      consent statute does not require more than one reading, and while we are not

      unmindful that the evidence is conflicting as to whether Trooper Fox read the

      implied consent card to Davis a second time, we remind Davis that we may not

      reweigh evidence. Burnell, 56 N.E.3d at 1150. With respect to Davis’s self-

      serving testimony that there was no mention of license suspension during the

      traffic stop and that to his knowledge, Trooper Fox did not read information to

      him from a card, id. at 18, we again decline his invitation to reweigh evidence.

      To the extent that he now claims that there was no evidence as to the contents


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1198 | October 29, 2019   Page 6 of 7
       of the card, he did not raise this in the trial court, where the contents would

       have been easily ascertainable through testimony or as an exhibit. As such, he

       has waived this issue for consideration on appeal. 2 See Pigg v. State, 929 N.E.2d

       799, 803 (Ind. Ct. App. 2010) (claims are generally waived if raised for first time

       on appeal), trans. denied.


[9]    Simply put, Davis has failed to meet his burden of demonstrating that the

       evidence leads to but one conclusion and that the trial court reach an opposite

       conclusion. Accordingly, we affirm.


[10]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       2
         Waiver notwithstanding, we note that during questioning, Davis’s counsel described the contents of the
       implied consent card as follows:
              I can tell you, having done this for some 37 years, that card is essentially going to say, I have
              probable cause to believe you operated a vehicle while intoxicated and I must now offer you the
              opportunity to take a chemical test. Will you take a chemical test? If you fail to take the
              chemical test, your license can be suspended for one year or will be suspended for one year.
       Tr. Vol. 2 at 18. In a quasi-civil proceeding such as probation revocation, “a clear and unequivocal
       admission of fact by an attorney is a judicial admission which is binding on the client.” Parker v. State, 676
       N.E.2d 1083, 1086 (Ind. Ct. App. 1997). Similarly, here, where Davis sought judicial review and had the
       burden of proving his claims by a preponderance of the evidence, his counsel’s admission concerning the
       contents of the implied consent card could be considered binding on Davis.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1198 | October 29, 2019                     Page 7 of 7
