MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Apr 18 2018, 10:26 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew M. Kubacki                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Manuel Garcia,                                           April 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1710-CR-2277
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy M. Jones,
Appellee-Plaintiff                                       Judge
                                                         The Honorable David Hooper,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1611-CM-44430



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2277 | April 18, 2018               Page 1 of 6
                                                Case Summary


[1]   Following a bench trial, Manual Garcia was convicted of operating a vehicle

      with an alcohol concentration equivalent (ACE) of at least .08 but less than .15,

      a Class C misdemeanor, and driving while suspended, a civil infraction. On

      appeal, Garcia argues that the State presented insufficient evidence to support

      his operating conviction.


[2]   We affirm.


                                       Facts & Procedural History


[3]   At approximately 3:11 a.m. on November 12, 2016, IMPD Officer Duran

      Brown was dispatched to the scene of a single vehicle accident in the 2200 block

      of south Meridian Street. When he arrived at the scene less than ten minutes

      later, Officer Brown observed a vehicle that had crashed into a light pole and

      had significant damage. He made contact with the driver, later identified as

      Garcia, to ascertain whether Garcia was injured. The fire department and

      medics arrived at the scene less than five minutes after Officer Brown. Garcia

      was extricated from the car and placed in an ambulance to be taken to the

      hospital for treatment of his injuries. When Officer Brown spoke with Garcia

      after he was placed in the ambulance, he noted an odor of alcoholic beverage

      on Garcia’s breath and that Garcia had red, glassy eyes.


[4]   Another officer at the scene read Garcia his Miranda warnings, and Garcia

      stated that he understood. When questioned, Garcia stated that he had been at


      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2277 | April 18, 2018   Page 2 of 6
      a friend’s house and had consumed alcoholic beverages that evening and that

      he had consumed his last drink at approximately 2:00 a.m. A portable breath

      test was administered to Garcia, after which Officer Brown read to him

      Indiana’s implied consent law, which he followed up with a description of the

      implied consent law in layman’s terms. Garcia stated that he understood and

      consented to a blood draw, which was performed at Eskenazi Hospital by a

      registered nurse at approximately 4:17 a.m. The results of the chemical test

      were analyzed by the Marion County Crime Lab and indicated an ACE of .105

      grams per one hundred milliliters of blood tested.


[5]   On November 16, 2016, the State charged Garcia with Count I, operating a

      vehicle while intoxicated endangering a person, a Class A misdemeanor; Count

      II, operating a vehicle with an ACE of .08 or greater, a Class C misdemeanor;

      and Count III, driving while suspended, a civil infraction. A bench trial was

      held on September 8, 2017. At the conclusion of the evidence, the trial court

      granted Garcia’s motion for a directed verdict as to Count I and found Garcia

      guilty of Counts II and III. Garcia now appeals. Additional facts will be

      provided as necessary.


                                          Discussion & Decision


[6]   To convict Garcia of operating with an unlawful blood-alcohol concentration,

      the State was required to prove that his ACE was .08 or higher at the time he

      operated a vehicle. See Ind. Code § 9-30-5-1(a)(1). Provided that the State

      presented evidence to establish that a certified chemical test was administered


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      within three hours after the arresting officer had probable cause to believe the

      person operated the vehicle while intoxicated, the trier of fact is entitled to

      presume that the defendant’s ACE equaled the result of the chemical test. In

      challenging the sufficiency of the evidence in support of his conviction under

      Count II, Garcia argues that the State was not entitled to rely on the statutory

      presumption because the State failed to establish that his blood test was

      administered within three hours of the accident.


[7]   When we consider a challenge to the sufficiency of the evidence, we neither

      reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,

      51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and

      reasonable inferences supporting the conviction. Id. We will affirm the

      conviction if there is probative evidence from which a the trier of fact could

      have found the defendant guilty beyond a reasonable doubt. Id.


[8]   Ind. Code § 9-30-6-15(b) provides:


              If, in a prosecution for an offense under IC 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 alcohol
                       concentration equivalent to at least eight-hundredths (0.08)
                       gram of alcohol per:


      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2277 | April 18, 2018   Page 4 of 6
                               (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 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 person
              operated the vehicle. However, this presumption is rebuttable.


      The chemical test administered “must be administered within three (3) hours

      after the law enforcement officer had probable cause to believe the person

      committed an offense under IC 9-30-5.” I.C. § 9-30-6-2(c).


[9]   Garcia’s argument that the State did not prove that the blood test was

      administered within three hours of the accident is simply a request to reweigh

      the evidence, a task this court will not undertake on appeal. Here, the State

      presented evidence that Garcia admitted to having been at a friend’s house and

      to having had his last alcoholic drink at about 2:00 a.m. Officer Brown was

      dispatched to the accident scene at 3:11 a.m., where he found Garcia trapped in

      his vehicle. The blood draw was performed at 4:17 a.m. From this evidence, a

      reasonable inference can be drawn that Garcia had been at one location and

      that he had to have driven his vehicle to then wreck it into a utility pole.

      Officer Brown found Garcia trapped in his vehicle about an hour after Garcia

      admitted to having had his last drink. About an hour after that, Garcia had his

      blood drawn. This is sufficient circumstantial evidence that Garcia operated his

      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2277 | April 18, 2018   Page 5 of 6
       vehicle within the statutory presumption’s three-hour limit. The trier of fact

       was therefore entitled to rely on the presumption that Garcia operated his

       vehicle with an ACE of .105 as indicated by the results of the blood test.


[10]   Judgment affirmed.


[11]   Najam, J. and Robb, J., concur.




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