MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Nov 16 2017, 6:02 am

court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                     Bart M. Betteau
Attorney General of Indiana                             Betteau Law Office, LLC
                                                        New Albany, Indiana
Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                       November 16, 2017
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        22A01-1706-CR-1329
        v.                                              Appeal from the Floyd Superior
                                                        Court
Jason Hubler,                                           The Honorable James B. Hancock,
Appellee-Defendant.                                     Judge
                                                        Trial Court Cause No.
                                                        22D02-1603-CM-656



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017    Page 1 of 12
                                          Case Summary
[1]   The State appeals the trial court’s order suppressing evidence obtained from an

      investigation of whether Jason Hubler (“Hubler”) operated a vehicle while

      intoxicated, endangering a person, a Class A misdemeanor,1 and whether he

      operated a vehicle with an alcohol concentration equivalent (“ACE”) of .15 or

      more, a Class A misdemeanor.2


[2]   We reverse.



                                                   Issues
[3]   The State raises the following two issues on appeal:


                 I.        Whether Hubler was entitled to Miranda warnings.


                 II.       Whether probable cause existed to offer Hubler a chemical
                           test.


                                Facts and Procedural History
[4]   At approximately 12:20 p.m. on March 26, 2016, New Albany police officers

      arrived at the scene of two adjacent collisions on Charlestown Road. The

      second collision occurred when two vehicles traveling southbound on




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


      Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017   Page 2 of 12
      Charlestown Road entered the northbound lane to pass the first accident scene.

      The first passing vehicle was able to return safely to the southbound lane after

      clearing the accident, but the second vehicle collided with Hubler’s northbound

      vehicle.


[5]   Officer Eric May (“Officer May”) of the New Albany Police Department

      investigated Hubler’s collision. Officer May approached Hubler, who was

      standing by his vehicle, and asked Hubler for his driver’s license and

      registration. Officer May also asked Hubler how the collision had occurred.

      Officer May observed that Hubler had glassy eyes, unsteady balance, and

      slurred speech, and he detected a strong odor of alcohol coming from Hubler.

      Officer May’s observations led him to believe that Hubler was intoxicated.

      Officer May then asked Hubler to submit to field sobriety tests. Hubler

      submitted to the horizontal gaze nystagmus test and failed with all six clues

      indicating evidence of intoxication. Hubler informed Officer May that he could

      not take the “walk and turn” field sobriety test because Hubler had a “bad

      back.” Tr. at 22, 38-39. Hubler stated that he thought he could do the “one leg

      stand” test, and he attempted to do so. Id. at 22, 39. However, Officer May

      stopped the test after less than five seconds for Hubler’s safety after Hubler put

      his foot down three times.


[6]   Based on his investigation, Officer May informed Hubler of Indiana’s implied

      consent law and offered him a certified chemical test. Hubler agreed to a

      chemical test and went to the Floyd County jail for testing. Subsequent testing

      indicated that Hubler had an ACE of .240. On March 28, the State charged

      Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017   Page 3 of 12
      Hubler with operating a vehicle while intoxicated endangering a person and

      operating a vehicle with an ACE of .15 or more.


[7]   On January 6, 2017, Hubler moved to suppress “as evidence any and all items

      seized” as a result of the State’s allegedly unconstitutional “search and/or

      seizure.” Appellant’s App. at 48-49.3 Hubler also submitted additional

      authority, contending State v. Moore, 723 N.E.2d 442 (Ind. Ct. App. 2000),

      required that the observed signs of his intoxication must be suppressed because

      he was not given Miranda warnings. At the March 14 hearing on the motion to

      suppress, New Albany Police Officers May and Mike Isom (“Officer Isom”)

      testified. Officer Isom testified that he was one of the first few officers to arrive

      at the scene of the collisions, and he began directing traffic. Officer Isom also

      interviewed two witnesses who had been watching Hubler’s collision from

      adjacent apartments. The witnesses stated that Hubler was traveling

      northbound at a speed “well over the speed limit,” quickly decelerated as he

      approached the oncoming traffic in his lane, and then collided. Tr. at 8.

      Officer Isom saw Hubler standing next to his vehicle but Officer Isom was

      approximately twenty-five yards away and could not get “a clear assessment as

      to what [Hubler’s] physical condition was” from that distance. Id. at 9. Officer

      Isom testified that, from a distance, Hubler did not appear to him to be




      3
         Hubler’s motion also requested specific findings pursuant to Indiana Trial Rule 52. The trial court failed to
      issue specific findings. However, as neither party raises that issue on appeal, we do not address it.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017           Page 4 of 12
      unsteady as he stood next to his vehicle, and he did not observe any signs that

      Hubler was intoxicated.


[8]   Officer May also testified at the suppression hearing. He testified that the driver

      of the car who hit Hubler’s car was the “primary cause” of the collision. Id. at

      23. He also testified that Hubler’s eyes could have appeared glassy due to

      allergies or “a million different things.” Id. at 27. Officer May testified that

      Hubler had “moderate slurring of words” and that Officer May could detect a

      strong odor of alcohol. Id. at 30. Officer May admitted that he did not include

      the slurred speech or smell of alcohol in his police report. Officer May also

      admitted that he had no way of “knowing whether or not [Hubler’s] back injury

      interfered” with his ability to perform the one leg stand sobriety test. Id. at 39.

      And Officer May testified that he administered the nystagmus test by telling

      Hubler to visually follow the officer’s finger as he moved it in an arc, rather

      than in a straight line, from Hubler’s eye level to his ear.


[9]   The trial court granted Hubler’s motion to suppress, and the State appeals that

      order.4




      4
         The State may appeal an order granting a motion to suppress evidence “if the ultimate effect of the order is
      to preclude further prosecution of one (1) or more counts of an information or indictment.” I.C. § 35-38-4-
      2(5). The effect of suppressing evidence that Hubler appeared intoxicated and the results of the chemical test
      is to preclude further prosecution of both the driving while intoxicated, endangering a person, charge and the
      charge of operating a vehicle with an ACE of .15 or more.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017           Page 5 of 12
                                   Discussion and Decision
                                           Standard of Review
[10]   Our standard of review of an order granting a motion to suppress evidence is

       well-settled:


                We review a trial court’s decision to grant a motion to suppress
                as a matter of sufficiency. State v. Moriarity, 832 N.E.2d 555,
                557–58 (Ind. Ct. App. 2005). When conducting such a review,
                we will not reweigh evidence or judge witness credibility. [Id.] at
                558. In such cases, the State appeals from a negative judgment
                and must show that the trial court’s ruling on the suppression
                motion was contrary to law. State v. Estep, 753 N.E.2d 22, 24–25
                (Ind. Ct. App. 2001). This court will reverse a negative judgment
                only when the evidence is without conflict and all reasonable
                inferences lead to a conclusion opposite that of the trial court. Id.
                at 25.


       State v. Owens, 992 N.E.2d 939, 941-42 (Ind. Ct. App. 2013), trans. denied.


                              Miranda Warnings Not Required
[11]   In his motion to suppress, Hubler argued that the evidence of his intoxication

       must be suppressed because it was obtained in violation of his right to be free

       from unreasonable search and seizure as guaranteed by the Fourth Amendment

       to the United States Constitution and Article 1, Section 11, of the Indiana

       Constitution.5 Specifically, he first argued that the evidence must be suppressed




       5
         Although Hubler’s motion to suppress cited both the federal and state constitutional provisions, neither
       party cites authority or separate argument as to Article 1, § 11 of the Indiana Constitution on appeal.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017          Page 6 of 12
       because the officer did not give Hubler his Miranda warnings prior to

       conducting a custodial interrogation of Hubler. Appellant’s App. at 62.


                In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16
                L.Ed.2d 694 (1966), 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. Id. at 479, 86 S.Ct. 1602. However, these warnings are
                only required where a suspect is both in custody and subjected to
                interrogation. Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct.
                1682, 64 L.Ed.2d 297 (1980).


       State v. Necessary, 800 N.E.2d 667, 669-70 (Ind. Ct. App. 2003).


[12]   Officer May did not provide Hubler with the Miranda warnings. However, he

       was not required to do so because, even if Hubler was in custody (and we do

       not decide whether or not he was), Officer May did not interrogate Hubler.

       Not “all statements obtained by the police after a person has been taken into

       custody are to be considered the product of interrogation.” Rhode Island v. Innis,

       446 U.S. 291, 299 (1980). Rather, “[u]nder Miranda, ‘interrogation’ includes

       express questioning and words or actions on the part of the police that the




       Therefore, the separate state constitutional claim is waived. See Ind. Appellate Rule 46; Pierce v. State, 29
       N.E.3d 1258, 1267 (Ind. 2015).

       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017             Page 7 of 12
       police know are reasonably likely to elicit an incriminating response from the

       suspect.” White v. State, 772 N.E.2d 408, 412 (Ind. 2002). Here, after asking for

       Hubler’s drivers’ license and registration, the only questions Officer May asked

       Hubler were “how [did] the crash happen” and whether Hubler would agree to

       take some field sobriety tests.6 Tr. at 19, 26. Those questions do not amount to

       “interrogation” for purposes of Miranda. Wissman v. State, 540 N.E.2d 1209,

       1212 (Ind. 1989) (“Officer Schollian’s general inquiry of what happened was for

       information, not a question used to elicit a confession from appellant. Thus this

       is not a case of custodial interrogation.”); see also Seeglitz v. State, 500 N.E.2d

       144, 146 (Ind. 1986) (“Miranda requirements are not applicable to general on

       the scene questioning in a noncoercive atmosphere.”).7 Nor was the

       administration of the field sobriety tests “interrogation” that would trigger

       Miranda requirements. Necessary, 800 N.E.2d at 670 (“[N]one of the Miranda

       warnings must be given to a defendant before the police administer FSTs [i.e.,

       field sobriety tests].”).


[13]   Moreover, Hubler made no incriminating statement that could be suppressed.

       “‘[O]nly verbal statements preceding an advisement of Miranda rights that are




       6
         The record discloses no evidence that Officer May asked Hubler if he had been drinking alcohol, as Hubler
       seems to suggest in his brief. Appellee’s Br. at 14.
       7
         Moore v. State, 723 N.E.2d 442 (Ind. Ct. App. 2000), cited by Hubler, is not to the contrary. Rather, this
       court held in that case that the defendant was not “interrogated” when the officer initially asked him “what
       happened in the accident” because, at that point, the officer was only questioning the defendant with the
       intent of eliciting information about a traffic accident, not incriminating information about a crime. Id. at
       450. It was not until the officer believed a crime had happened that his following questions became
       interrogation. Id.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017           Page 8 of 12
       both testimonial in nature and elicited during custodial interrogation must be

       suppressed.’” State v. Keller, 845 N.E.2d 154, 161 (Ind. Ct. App. 2006) (quoting

       Curry v. State, 643 N.E.2d 963, 976 (Ind. Ct. App. 1994), trans. denied)). And,

       although Miranda may also protect responses that are nonverbal conduct, that

       conduct must, itself, be testimonial.


               “In order to be testimonial, an accused’s communication must
               itself, explicitly or implicitly, relate a factual assertion or disclose
               information.” Curry v. State, 643 N.E.2d 963, 976 (Ind. Ct. App.
               1994), reh’g denied, trans. denied. “[N]on verbal conduct contains
               a testimonial component whenever the conduct reflects the
               actor’s communication of his thoughts to another.” [Pennsylvania
               v.] Muniz, 496 U.S. [582,] 595 n.9, 110 S.Ct. 2638 [1990].”


       Smith v. State, 829 N.E.2d 64, 75 (Ind. Ct. App. 2005).


[14]   Here, Hubler’s physical appearance (i.e., slurred speech, glassy eyes,

       unsteadiness, smelling of alcohol) was not in any way testimonial. Id. Nor was

       his conduct of failing the field sobriety tests and the chemical test “testimonial.”

       See, e.g., Crump v. State, 740 N.E.2d 564, 571 (Ind. Ct. App. 2000) (holding the

       odor of alcohol on the defendant’s breath and the results of the breathalyzer test

       “was noncommunicative physical evidence.”), trans. denied; see also Smith v.

       State, 496 N.E.2d 778, 783 (Ind. Ct. App. 1986) (quoting Schmerber v. California,

       384 U.S. 757, 764 (1966)) (holding blood test, field sobriety test, and

       breathalyzer test results obtained without Miranda warnings are admissible

       since “[n]ot even a shadow of testimonial compulsion or enforced




       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017   Page 9 of 12
       communication by the accused” is involved in obtaining or analyzing such

       tests).


[15]   In sum, the failure to provide Hubler with Miranda warnings was not a basis

       upon which to suppress evidence of his intoxication, including evidence of

       Officer May’s observations of Hubler’s physical appearance and behavior.8


                        Probable Cause to Offer a Chemical Test
[16]   Hubler argued to the trial court that, even if the police were not required to

       provide him with Miranda warnings, the results of the chemical test must be

       suppressed because the police lacked probable cause to offer such a test. The

       trial court agreed. However, because all reasonable inferences lead to the

       opposite conclusion, we reverse the order to suppress evidence obtained from

       the chemical test. Owens, 992 N.E.2d at 942.


[17]   Indiana’s implied consent law provides that “[a] law enforcement officer who

       has probable cause to believe that a person has committed a [driving while

       intoxicated] offense … shall offer the person the opportunity to submit to a

       chemical test.” I.C. § 9-30-6-2(a). “A law enforcement officer has probable

       cause to offer a chemical test for intoxication when the officer has knowledge of

       facts and circumstances that would lead a reasonably prudent person to believe




       8
        We note that the trial court did not state that its decision was based on the failure to provide Miranda
       warnings; in fact, the trial court did not state a reason for its decision at all or specify exactly what evidence it
       was suppressing. Appellant’s App. at 65.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017 Page 10 of 12
       that the crime of operating a vehicle while intoxicated has been committed.”

       Hassfurther v. State, 988 N.E.2d 811, 815 (Ind. Ct. App. 2013). “Objectively

       observed clear indications of intoxication include dilated pupils, bloodshot eyes,

       glassy eyes, and the odor of alcohol on the person’s breath.” Frensemeier v.

       State, 849 N.E.2d 157, 162 (Ind. Ct. App. 2006), trans. denied. Moreover, the

       fact that a defendant smells strongly of alcohol, alone, provides sufficient

       probable cause to offer a chemical test. Dalton v. State, 773 N.E.2d 332, 334

       (Ind. Ct. App. 2002), trans. denied.


[18]   Here, Officer May’s observations of Hubler at the scene of the accident

       provided probable cause to believe that Hubler had been driving while

       intoxicated and should be offered a chemical test. Officer May testified that he

       detected a strong odor of alcohol on Hubler, and that observation, alone,

       provided probable cause to offer the chemical test. Id. However, that was not

       the only evidence of Hubler’s intoxication; Officer May also observed that

       Hubler had slurred speech, glassy eyes, and unsteady balance. While Officer

       May failed to include some of those observations in his report, his testimony as

       to what he observed was not contradicted by his police report. Nor were

       Officer May’s observations contradicted by Officer Isom, who testified that he

       was too far away from Hubler to accurately assess Hubler’s physical condition

       at the scene of the accident. Because all reasonable inferences from the

       evidence lead to the conclusion that there was probable cause to offer Hubler a

       chemical test, the trial court’s order suppressing the results of that test were

       contrary to law.


       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017 Page 11 of 12
                                              Conclusion
[19]   The police were not required to provide Hubler with Miranda warnings prior to

       observing evidence of his physical appearance and behavior at the scene of the

       accident because they did not interrogate Hubler to obtain such evidence and

       such evidence was not testimonial. Thus, to the extent the trial court ordered

       suppression of the officers’ observations of Hubler, we reverse. Moreover, there

       was probable cause for Officer May to offer Hubler the chemical test; Officer

       May’s detection of the strong odor of alcohol on Hubler was, alone, sufficient

       to establish probable cause. Id. Therefore, we reverse the trial court’s ruling

       suppressing evidence of the results of the chemical test as it was contrary to law.


[20]   Reversed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CR-1329 | November 16, 2017 Page 12 of 12
