                                                                         FILED
                                                                     Oct 31 2018, 9:53 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Marc Lopez                                                 Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Caroline G. Templeton
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brittanie R. Corbin,                                       October 31, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-12
        v.                                                 Appeal from the Montgomery
                                                           Superior Court
State of Indiana,                                          The Honorable Peggy Q. Lohorn,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           54D02-1704-CM-1083



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018                           Page 1 of 21
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Brittanie Corbin (Corbin), appeals her conviction for

      operating a vehicle with an alcohol concentration equivalent (ACE) of 0.15 or

      more, a Class A misdemeanor, Ind. Code § 9-30-5-1(b) (2017). 1


                                                     ISSUES
[2]   Corbin presents two issues on appeal, which we restate as:


      (1) Whether the trial court abused its discretion in admitting certain evidence;

          and


      (2) Whether the State presented sufficient evidence beyond a reasonable doubt

          to support Corbin’s conviction for operating a vehicle with an ACE of 0.15

          or more.


                       FACTS AND PROCEDURAL HISTORY
[3]   On April 8, 2017, at approximately 11:36 p.m., two deputy sheriffs with the

      Montgomery County Sherriff’s Department, Mathew Riddle (Deputy Riddle)

      and Ethan Redmon (Deputy Redmon), received a dispatch concerning a

      “disabled vehicle eastbound on I-74.” (Transcript Vol. II, p. 15). The deputies

      arrived at the scene at approximately 11:43 p.m. and observed a “silver Chevy

      Cobalt on the right-hand shoulder.” (Tr. Vol. II, p. 16). Deputy Riddle



      1
       We held oral argument on October 9, 2018, at the Winchester Community High School, Winchester,
      Indiana. We commend counsel for their excellent presentations and thank Winchester Community High
      School for their hospitality in hosting this oral argument.

      Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018                       Page 2 of 21
      approached the vehicle from the driver’s side, and Deputy Redmon advanced to

      the opposite side. Corbin was in the driver’s seat, and there was a male

      passenger, “Alexander,” in the front passenger seat. (Tr. Vol. II, p. 14).

      Deputy Riddle asked Corbin where she was coming from, and Corbin stated

      that “she was coming from a friend’s wedding” and “was driving back to her

      Indianapolis area address.” (Tr. Vol. II, p. 10). While talking to Corbin,

      Deputy Riddle observed that Corbin had “red glassy eyes and slow . . . slurred

      speech.” (Tr. Vol. II, p. 8). Based on his observation, Deputy Riddle formed

      an opinion that Corbin was “under the influence of either drugs or alcohol.”

      (Tr. Vol. II, p. 8). Deputy Riddle consequently asked Corbin if she had drunk

      alcohol, and Corbin admitted that she “had.” (Tr. Vol. II, p. 10). At that point,

      the deputies ordered Corbin and Alexander to exit the vehicle. Deputy Riddle

      observed that Corbin was “uneasy on her feet” and Corbin held onto Alexander

      “to keep her balance.” (Tr. Vol. II, p. 11). Deputy Riddle began talking with

      Alexander, and after obtaining consent from Alexander, he tried to see if he

      “could get the vehicle running.” (Tr. Vol. II, p. 11). While Alexander “looked

      under the hood to see if he could find the issue,” Deputy Riddle attempted to

      “start the vehicle,” but the vehicle was “inoperable.” (Tr. Vol. II, p. 14).


[4]   In the meantime, Deputy Redmon summoned Corbin to the side of the car in

      order to talk to her. As he was interacting with Corbin, Deputy Redmon

      observed that Corbin had “red blood[-]shot eyes and was unsteady on her feet.”

      (Tr. Vol. II, p. 18). Corbin also emanated “an overwhelming odor of alcohol.”

      (Tr. Vol. II, p. 18). Based on his “training and experience,” Deputy Redmon


      Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018        Page 3 of 21
      formed the opinion that Corbin was “under the influence of a drug or alcohol.”

      (Tr. Vol. II, p. 18). Deputy Redmon asked Corbin “how much” alcohol she

      had consumed, and Corbin stated, “maybe a glass or two” of “wine” at about

      “10:00-10:30” p.m. (State’s Exh. 1 at 0:20-0:28). Implying that she was not

      intoxicated, Corbin continued, “you can check me if you want. I don’t care.”

      (State’s Exh. 1 at 0:25). Deputy Redmon quickly responded, “Yep. We just

      want to make sure you are okay to drive, and we will figure out your car

      situation.” (State’s Exh. 1 at. 0:26). Shortly thereafter, Deputy Redmon

      walked back to his vehicle to retrieve something. When he returned, Deputy

      Redmon informed Corbin that he was going to conduct some tests “just to

      make sure she was okay to drive.” (State’s Exh. 1 at 1:47).


[5]   Deputy Redmon administered a horizontal gaze nystagmus, a field sobriety

      test, in which Corbin “showed signs of being under the influence of either a

      drug or alcohol.” (Tr. Vol. II, p. 21). Doubting Corbin’s first response that she

      had drunk two glasses of wine, again, Deputy Redmon asked Corbin, “have

      you only had two glasses?” (State’s Exh. 1 at 4:00). Corbin responded, “Yeah.

      . . . it feels like three maybe . . . I haven’t had many.” (State’s Exh. 1 at 4:00).

      At that point, Deputy Redmon administered a breathalyzer test, which

      determined that Corbin was intoxicated.


[6]   Because Corbin had failed the administered tests, Deputy Redmon concluded

      that he had probable cause to arrest Corbin for operating a vehicle while

      intoxicated and he read Corbin the Indiana Implied Consent Law, which

      requires the officer to offer the suspect a certified chemical test. Corbin

      Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018            Page 4 of 21
      consented. Corbin was then handcuffed and transported to Montgomery

      County Jail. Corbin cried “throughout” her transportation to jail. (Tr. Vol. II,

      p. 29). At approximately 12:20 a.m., Deputy Redmon administered Corbin’s

      chemical breath test. Prior to administering the test, Deputy Redmon ensured

      that Corbin had not eaten, drunk, smoked, or put any foreign objects in her

      mouth. The test revealed that Corbin had 0.152 grams of alcohol per 210 liters

      of breath.


[7]   On April 19, 2017, the State filed an Information, charging Corbin with Count

      I, operating a vehicle with an ACE of 0.15 or more, a Class A misdemeanor

      and Count II, operating a vehicle while intoxicated, a Class C misdemeanor.

      On December 5, 2017, a bench trial was conducted. At the end of Corbin’s

      bench trial, the trial court found her guilty of Count I, operating a vehicle with

      an ACE of 0.15 or more, a Class A misdemeanor; however, it dismissed Count

      II. On the same day, the trial court held a sentencing hearing and sentenced

      Corbin to a term of 180 days, all which, except time served, was suspended to

      probation.


[8]   Corbin now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                          I. Admission of the Evidence

[9]   The admission or exclusion of evidence falls within the sound discretion of the

      trial court, and its determination regarding the admissibility of evidence is

      reviewed on appeal only for an abuse of discretion. Wilson v. State, 765 N.E.2d

      Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018        Page 5 of 21
       1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before the court. Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012).


[10]   Corbin argues that the trial court should have granted her motion to suppress

       the statements she made to the deputies prior to her arrest. We note that once a

       case proceeds to trial, the question of whether the trial court erred in denying a

       motion to suppress is no longer viable. Baird v. State, 854 N.E.2d 398, 403 (Ind.

       Ct. App. 2006), trans. denied. Instead, we review whether the trial court erred in

       admitting the evidence at trial. Id.


                                                     A. Miranda

[11]   Corbin contends that while being questioned by deputies about drinking alcohol

       after she displayed signs of intoxication, the interrogation was custodial in

       nature and she should have been advised of her rights under Miranda v. Arizona,

       384 U.S. 436, 444 (1966).


               In Miranda [] the United States Supreme Court held that the
               prosecution may not use statements, whether exculpatory or
               inculpatory, stemming from custodial interrogation of the
               defendant unless it demonstrates the use of procedural safeguards
               effective to secure the privilege against self-incrimination. These
               procedural safeguards include an advisement to the accused that
               he has the right to remain silent, that anything he says can be
               used against him, that he has the right to an attorney, and that if
               he cannot afford an attorney one will be appointed for him.
               However, these warnings are only required where a suspect is
               both in custody and subjected to interrogation.



       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018        Page 6 of 21
       State v. Necessary, 800 N.E.2d 667, 669-70 (Ind. Ct. App. 2003) (internal citation

       marks omitted). A law enforcement officer’s duty to give Miranda warnings

       does not attach unless there has been such a restriction on a person’s freedom as

       to render him in custody. Loving v. State, 647 N.E.2d 1123, 1125 (Ind. 1995).

       The Indiana Supreme Court has held:


               Whether a person was in custody at a given time depends not
               upon the subjective views of either the interrogating officers or
               the subject being questioned but upon the “objective
               circumstances.” An officer’s knowledge and beliefs are only
               relevant to the question of custody if conveyed—through either
               words or actions—to the individual being questioned. Likewise,
               a police officer’s “unarticulated plan has no bearing on the
               question” of custody. The test is how a reasonable person in the
               suspect’s shoes would understand the situation.


       Meriwether v. State, 984 N.E.2d 1259, 1263 (Ind. Ct. App. 2013).


[12]   Corbin maintains that when the deputies initially spoke with her, and both

       formed the opinion that she was intoxicated and had driven the vehicle before it

       became disabled, the deputies’ concern had shifted from a ‘welfare check’ to a

       potential criminal investigation. Corbin therefore contends that, at that

       moment, she was in a custodial-type situation, and the deputies should have

       given her Miranda warnings prior to questioning her.


[13]   Corbin relies on Moore v. State, 723 N.E.2d 442, 446 (Ind. Ct. App. 2000) for the

       broad proposition that an interrogation is necessarily custodial once an officer

       knows or should know that he is investigating a potential crime and questioning

       a suspect. In Moore, police responded to the report of a pedestrian being struck
       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018          Page 7 of 21
       by an automobile. Id. Moore, the driver of the automobile, was subsequently

       placed in the back seat of a police cruiser, could not leave the scene, and had a

       statutory duty to stay and provide information for an accident report. Id. This

       court acknowledged that under the circumstances, Moore was in a custodial-

       type situation, but that Moore was not in custody until the officer knew or

       should have known he was investigating a potential crime rather than just an

       accident when questioning the defendant. Id.


[14]   While the deputies’ initial concern was to check if Corbin needed assistance

       with her vehicle, we find that their encounter transitioned into a traffic stop. In

       Berkemer v. McCarty, 468 U.S. 420, 440 (1984), the Court concluded that the

       “noncoercive aspect of ordinary traffic stops prompts us to hold that persons

       temporarily detained pursuant to such stops are not ‘in custody’ for the

       purposes of Miranda.” Although the Court recognized that the defendant had

       been seized, it noted the brief nature of such stops, and that such stops

       “commonly occur in the public view, in an atmosphere far less police

       dominated than that surrounding the kinds of interrogation at issue in Miranda

       itself.” Id. In Pennsylvania v. Bruder, 488 U.S. 9, 10 (1988), the Court relied on

       Berkemer in holding that police officers were not required to give Miranda

       warnings where an officer “ask[ed] respondent a modest number of questions

       and request[ed] him to perform a simple balancing test at a location visible to

       passing motorists.” Id. at 11.


[15]   When Deputy Riddle first questioned Corbin on whether she had consumed

       any alcoholic beverage, Corbin was neither handcuffed nor physically

       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018          Page 8 of 21
       restrained in any way, and she had not been told she was a suspect in a crime.

       There is no evidence that Deputy Riddle suggested to Corbin that she should

       cooperate, or implied that adverse consequences for noncooperation would

       result. After exiting her vehicle, Corbin indeed became a suspect to the crime

       of operating a vehicle while intoxicated. At that point, Deputy Redmon asked

       further questions about how many alcoholic drinks she had consumed at the

       wedding; however, we find that these questions were merely cumulative since

       Corbin had already admitted to Deputy Riddle about consuming alcohol prior

       to driving her vehicle.


[16]   Moreover, the holding in Berkemer allows officers to ask questions and request

       sobriety tests of motorists whom they pull over. As such, we see no reason why

       the deputies in the instant case could not act similarly when they encountered

       Corbin at the scene of her disabled vehicle. See State v. Hicks, 882 N.E.2d 238,

       243 (Ind. Ct. App. 2008) (holding the defendant was not in custody when a

       police officer asked her if she was driving a disabled vehicle in the immediate

       vicinity).


[17]   Even if Corbin’s statements to the deputies were obtained in violation of

       Miranda and erroneously admitted, they are subject to an analysis for harmless

       error. The improper admission of evidence is harmless error when the

       conviction is supported by substantial independent evidence of guilt so as to

       satisfy the reviewing court that there is no substantial likelihood that the

       questioned evidence contributed to the conviction.” Lafayette v. State, 917

       N.E.2d 660, 666 (Ind. 2009). “Reversal may be compelled if the record as a

       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018         Page 9 of 21
       whole discloses that the erroneously admitted evidence was likely to have had a

       prejudicial impact on the fact-finder, thereby contributing to the judgment.”

       Ground v. State, 702 N.E.2d 728, 732 (Ind. Ct. App. 1998). “To determine

       whether the erroneous admission of irrelevant and prejudicial evidence . . . is

       harmless, we judge whether the jury’s verdict was substantially swayed. If the

       error had substantial influence, or if one is left in grave doubt, the conviction

       cannot stand.” Lafayette v. State, 917 N.E.2d 660, 666-67 (Ind. 2009) (citation

       and internal quotation marks omitted).


[18]   Here, Deputy Riddle testified that after meeting Corbin, he observed that she

       had blood-shot eyes and slow, slurred speech. Deputy Riddle also saw that

       Corbin was unsteady on her feet when she exited her vehicle. Further, Deputy

       Redmon smelled an odor of alcohol when he approached Corbin. Corbin failed

       the field sobriety tests, she was handcuffed and transported to jail. While in

       jail, Corbin was administered a standardized chemical breath test after being

       booked in jail. Corbin’s ACE was 0.152. Even without the admission of

       Corbin’s inculpatory statements, Corbin’s conviction for Class A misdemeanor

       driving while intoxicated with an ACE of 0.15 or more was supported by

       independent evidence, and there is no substantial likelihood that Corbin’s

       statements to the deputies contributed to her conviction. As such, any error in

       the admission of Corbin’s statements was harmless.


                                     B. Results of the Chemical Breath Test

[19]   Corbin argues that pursuant to Indiana Code section 9-30-6-5(d), the results of

       her chemical breath test were inadmissible because the State was unable to

       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018        Page 10 of 21
       certify that the chemical test was properly administered. We note that the

       results of a chemical breath test are inadmissible in a prosecution for operating

       while intoxicated unless the test operator, test equipment, chemicals used in the

       test, and test techniques have been approved in accordance with the rules

       promulgated by the Indiana University School of Medicine Department of

       Pharmacology and Toxicology. Ramirez v. State, 928 N.E.2d 214 (Ind. Ct. App.

       2010), trans. denied.


[20]   Accordingly, for the results of a chemical breath test to be admissible, three

       foundational requirements must be satisfied: (1) the person who administered

       the test must be certified by the Department of Toxicology, (2) the equipment

       used in the test must have been inspected and approved by the Department of

       Toxicology, and (3) the operator must have followed the procedures approved

       by the Department of Toxicology. State v. Lloyd, 800 N.E.2d 196, 199 (Ind. Ct.

       App. 2003). Corbin challenges the third foundational requirement.


[21]   Pursuant to Indiana Code section 9-30-6-5(a)(3), the state department of

       toxicology has promulgated an approved method for administering breath tests

       using the BAC DataMaster. 260 Ind. Admin. Code 2-4-1. In relevant part, the

       administrative rule contains the following steps:


               STEP ONE: The person to be tested must:


               (A) have had nothing to eat or drink;


               (B) not have put any foreign substance into his or her mouth or
               respiratory tract; and
       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018        Page 11 of 21
               (C) not smoke;


               within fifteen (15) minutes before the time a breath sample is
               taken.


       260 I.A.C. 2-4-1(a). “The concern over foreign substances [placed in] a

       person’s mouth is the potential for the substances to absorb and retain alcohol

       in the mouth, which could falsely elevate the breath alcohol concentration.”

       Guy v. State, 823 N.E.2d 274, 277 (Ind. 2005). Corbin maintains that the results

       of her chemical breath test were inadmissible because part of ‘STEP ONE’ was

       not strictly adhered to. In particular, Corbin alleges that the


               Video evidence of Corbin’s encounter with police shows her
               sobbing . . . . Deputy Redmon testified that she was crying all the
               way to the Montgomery County Jail, but he was unable to
               confirm that no tears found their way into Corbin’s mouth in the
               15 minutes just prior to her certified breath test.


       (Appellant’s Br. p. 20). Corbin relies on Deputy Redmon’s testimony that she

       cried “throughout” her transportation to jail, and because Deputy Redmon

       could not “accurately tell” if her tears “got in her mouth” within fifteen minutes

       before her breath sample was taken, the test was invalid and inadmissible at her

       bench trial. (Tr. Vol. II, p. 29) (Appellant’s Br. p. 21).


[22]   Corbin then argues that the facts of this case are “diametrically opposed to

       those in” Guy v. State, 823 N.E.2d 274 (Ind. 2005), and we should, therefore,

       reverse her conviction. In Guy, our supreme court held that the presence of a

       tongue stud placed in the defendant’s mouth more than twenty minutes before a

       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018       Page 12 of 21
       breath test did not render the test inadmissible. Id. at 275. The court examined

       the administrative code controlling the procedure for conducting a breath test

       and held that “[t]he logical conclusion to draw from the department of

       toxicology’s use of the word ‘put’ is that any foreign substance placed in a

       person’s mouth more than twenty minutes prior to a breath test poses no

       problem for the reliability of the results.” Id. at 276. At the time, the court was

       referring to 260 Indiana Administrative Code 1.1-4-8(1), which was repealed in

       2014 which then provided that “[T]he person to be tested must . . . not have put

       any foreign substance into his or her mouth or respiratory tract . . . within

       twenty (20) minutes before the time a breath sample is taken.” Id.


[23]   Corbin posits that during her transportation to jail, she was generating “fresh

       tears . . . by the second.” (Appellant’s Br. p. 20). As such, pursuant to 260

       I.A.C. 2-4-1(a), Corbin argues that her tears were foreign objects put in her

       mouth within fifteen minutes of her chemical breath test. In turn, the State

       argues that Corbin offered “no scientific evidence” at her trial, or now on

       appeal, to support her position that her tears were foreign objects put in her

       mouth or that her tears were skilled at invalidating a chemical breath test.

       (Appellant’s Br. p. 15). Further, the State directs us to the record and urges us

       to consider any conflicting evidence in a light most favorable to the trial court’s

       ruling. See Meriwether, 948 N.E.2d at 1262.


[24]   Turning to the evidence, at Corbin’s bench trial, Deputy Redmon testified that

       he examined Corbin’s mouth at “11:54 p.m.” and he did not observe any

       foreign objects in Corbin’s mouth. (Tr. Vol. II, p. 26). Then at 12:20 a.m., after

       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018       Page 13 of 21
       Corbin had been booked in jail, Deputy Redmon administered the chemical

       breath test. Prior to administering the test, he ensured that Corbin had not

       eaten, drunk, or smoked anything. Deputy Redmon testified that although

       Corbin cried on her way to jail, he could not tell if the tears entered Corbin’s

       mouth. Because there is no evidence that Corbin’s tears entered her mouth

       within fifteen minutes of her chemical breath test, and Corbin failed to present

       any scientific evidence in support of her claim, we conclude that the test was

       properly administered, and the trial court did not abuse its discretion in

       admitting the test results.


                                          II. Sufficiency of the Evidence

[25]   Corbin also contends that the State presented insufficient evidence to sustain

       her conviction for Class A misdemeanor operating a vehicle while intoxicated

       with an ACE of 0.15 or more. Specifically, she claims that (1) there was

       insufficient evidence to prove that she operated the vehicle, and (2) the

       chemical breath test was not administered within three hours of when she

       operated her vehicle.


[26]   When reviewing the sufficiency of the evidence needed to support a criminal

       conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

       supporting the judgment and any reasonable inferences that can be drawn from

       such evidence.” Id. We will affirm if there is substantial evidence of probative

       value such that a reasonable trier of fact could have concluded the defendant

       was guilty beyond a reasonable doubt. Id.

       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018       Page 14 of 21
[27]   In order to convict Corbin 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 Corbin’s chemical breath test showed that her

       ACE was 0.152—well above the statutory threshold.


                                           A. Operation of the Vehicle


[28]   Corbin alleges that the State presented insufficient evidence beyond a

       reasonable doubt to show that she operated the vehicle. The word “operate”

       means to “navigate or otherwise be in actual physical control of a vehicle,

       motorboat, off-road vehicle, or snowmobile.” I.C. § 9-13-2-117.5(a). In Crawley

       v. State, 920 N.E.2d 808, 812 (Ind. Ct. App. 2010), trans. denied, we listed four

       factors that could be used to determine whether a person “operated” a vehicle:

       “(1) the location of the vehicle when it is discovered; (2) whether the car was

       moving when discovered; (3) any additional evidence indicating that the

       defendant was observed operating the vehicle before he or she was discovered;

       and (4) the position of the automatic transmission.” In addition to these four

       factors, “[a]ny evidence that leads to a reasonable inference should be

       considered.” Id.


[29]   Corbin relies on Johnson v. State, 518 N.E.2d 1127, 1128 (Ind. Ct. App. 1988),

       arguing that the State did not establish that she operated her disabled vehicle

       before encountering the deputies.


       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018        Page 15 of 21
[30]   In Johnson, a police officer investigated a vehicle parked on the side of the road.

       Johnson, 518 N.E.2d at 1127. An officer observed a vehicle parked off the road.

       Id. The officer stopped to investigate and found Johnson in the driver’s seat.

       Id. Johnson explained that the car was disabled and proved the car would not

       start. Id. The officer asked Johnson for identification and ran a routine check

       on Johnson’s license. Id. The officer learned Johnson’s driving privileges had

       been revoked. Id. As such, he arrested Johnson for operating a motor vehicle

       while his driving privileges were suspended. Id. At his trial, Johnson explained

       he had not been driving the car, the car would not start, and he was waiting for

       a friend to return with a tow. Id. Two witnesses corroborated Johnson’s story.

       Id. On appeal, we reversed Johnson’s conviction. In reaching that holding, we

       noted that the State had presented no evidence at trial that Johnson had driven

       the car or that the car was operable at the time of Johnson’s arrest. Id. at 1129.


[31]   Although there are some factual similarities, we find the Johnson case

       distinguishable. Unlike Johnson, Corbin did not inform the deputies that she

       had not operated the vehicle or that she was waiting for towing services. We

       note that Corbin’s vehicle had stalled on the shoulder of 1-74, an area used only

       for emergencies. While the record is silent as to the position of the vehicle’s

       gear, Corbin was seated behind the wheel, and she informed the deputies that

       she was coming from a wedding and “was driving back to her Indiana,

       Indianapolis area address.” (Tr. Vol. II, p. 11). It is reasonable to infer that in

       order to get her vehicle from the wedding to the shoulder of I-74, Corbin must

       have driven her vehicle to get to that location. Thus, applying the plain

       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018        Page 16 of 21
       language of Indiana Code section 9-13-2-117.5 to this case, a reasonable finder

       of fact could conclude from this evidence that Corbin was in “actual physical

       control” of her vehicle and met the statutory definition of the word “operate.”


                                B. Administration of the Chemical Breath Test

[32]   Corbin argues that the State did not prove that the chemical breath test was

       completed within the requisite period of time. Indiana Code section 9-30-6-2

       (c) provides that a chemical 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 [I.C. §] 9-30-5 or a violation under [I.C. §] 9-30-

       15.”


[33]   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; 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

       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018         Page 17 of 21
                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.


       This statute allows a jury to relate the driver’s ACE at the time of the chemical

       test back to the time the driver operated the vehicle. See Disbro v. State, 791

       N.E.2d 774, 778 (Ind. Ct. App. 2003), trans. denied. If the State fails to prove

       that the chemical test occurred within three hours of when the defendant last

       operated her vehicle, it is not allowed to rely on the presumption. Allman v.

       State, 728 N.E.2d 230, 232 (Ind. Ct. App. 2000). Even if the test is not

       conducted within the three-hour time period, that affects only the presumption

       and not the test’s admissibility. Mannix v. State, 54 N.E.3d 1002 (Ind. Ct. App.

       2016).


[34]   Among the cases that Corbin cites to is Mordacq v. State, 585 N.E.2d 22, 23 (Ind.

       Ct. App. 1992), where this court discussed whether the chemical breath test can

       “presumptively relate back to an act of operating a vehicle that occurred before

       an officer encountered the defendant . . . .” Analyzing this issue, we

       determined that


                [I]n a case where the officer did not observe the defendant
                operating the vehicle, the statutes could be read to impose no
                limit on the relation back test, provided the test was performed
                within three hours of the time an officer investigated the
                defendant. Such an interpretation would distinguish between
                those defendants stopped (1) by the police while driving, and (2)
                those who stop of their own accord or by accident. This could
                lead to absurd and illogical results unintended by the legislature,

       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018         Page 18 of 21
               and would operate to the disadvantage of those who, realizing
               their continued driving posed a threat to public safety, chose to
               stop. In our view, the three-hour limit expressed in I.C. [§ ] 9-30-
               6-2(c) begins not from the moment an officer ideates probable
               cause, but rather from the moment at which the vehicle was
               operated in violation of I.C. [§ ] 9-30-5.


       Id. The State argues that Corbin’s reliance on Mordacq is misplaced.


[35]   In Mordacq, at approximately 2:30 a.m., an officer observed a vehicle parked

       alongside the road with its engine running. Id. 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.


[36]   A few years after Mordacq, this court reached a similar conclusion in Allman v.

       State, 728 N.E.2d 230 (Ind. Ct. App. 2000). 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 driver sitting in her vehicle off the side of the road,

       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018         Page 19 of 21
       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.


[37]   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. In Corbin’s case, the

       deputies were dispatched at 11:36 p.m., and they arrived at 11:43 p.m. to attend

       to Corbin’s stalled vehicle facing eastbound near the 41 ½ mile marker on I-74.

       Corbin then informed the deputies that she was driving from a wedding and

       was heading home. Corbin displayed signs of intoxication. Corbin also

       informed Deputy Redmon that she had consumed two or three glasses of wine

       between 10:00 and 10:30 p.m. Deputy Redmon administered field sobriety

       tests, and Corbin failed all of them. Corbin was arrested and transported to jail.


[38]   After Corbin had been booked in jail, she submitted to a chemical test. Deputy

       Redmon, a certified breath test operator, administered the test at approximately

       12:20 a.m. The test showed that Corbin’s ACE was 0.152, well above the

       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018         Page 20 of 21
       statutory threshold. Our role on appeal is to consider “the probative evidence

       supporting the judgment and the reasonable inferences that may be drawn

       [therefrom.]” Dorsett v. State, 921 N.E.2d 529, 531 (Ind. Ct. App. 2010).


[39]   Here, the fact finder was allowed to deduce that Corbin’s last alcoholic

       beverage was consumed at 10:30 p.m. and after that, Corbin got behind the

       wheel and drove her vehicle before it broke down on I-74. Since Corbin’s

       chemical breath test was administered at 12:20 a.m., it may be inferred from the

       evidence that a presumption existed that Corbin had an ACE of at least 0.15 at

       the time she operated the vehicle. Therefore, we conclude that the State met its

       burden of proof beyond a reasonable doubt, and we affirm Corbin’s conviction

       for operating a vehicle with an ACE of 0.15 or more, a Class A misdemeanor.


                                              CONCLUSION
[40]   For the foregoing reasons, we conclude that the trial court did not abuse its

       discretion by admitting Corbin’s statements to the deputies or the results of the

       chemical breath test. Also, the State presented sufficient evidence beyond a

       reasonable doubt to convict Corbin of Class A misdemeanor operating a vehicle

       with an ACE of 0.15 or more.


[41]   Affirmed.


[42]   Kirsch, J. and May, J. concur




       Court of Appeals of Indiana | Opinion 18A-CR-12 | October 31, 2018      Page 21 of 21
