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01/21/88 TERRY SULLIVAN (DEFENDANT BELOW) v. STATE

Filed: January 21, 1988.

TERRY SULLIVAN APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE MONROE SUPERIOR COURT IV, The Honorable Douglas R. Bridges, Judge, CAUSE NO. CF8602-011E

Robertson, J., Ratliff, C. J. And Neal, J. Concur.

Author: Robertson

ROBERTSON, J.

Terry Sullivan appeals his conviction of operating a vehicle with a blood-alcohol content of ten-hundredths percent or more, a class D felony.[Footnote 1] We affirm the conviction as a class C misdemeanor but reverse the conviction's enhancement to a class D felony.

Sullivan raised essentially three issues for review, but because of our Disposition on the sufficiency question, we need not address the question whether the trial court erred in denying Sullivan's motion to suppress.[Footnote 2]

I.

Sullivan contends the evidence is insufficient to establish that he had a blood-alcohol content of ten-hundredths percent at the time of the alleged offense, and also argues that the evidence is insufficient to support the enhancement of the offense to a class D felony because the State failed to demonstrate that he was the person convicted of operating a vehicle while intoxicated in Greene County in 1984 as the State alleged.

With respect to the underlying substantive offense, Sullivan claims the evidence is insufficient to show that at the time he operated the vehicle, his blood-alcohol content was at least ten-hundredths percent because the State failed to present any evidence of extrapolation or chemical test results obtained at the time of the alleged violation. Sullivan was stopped by the police at 10:45 p.m. on the date alleged in the information. A breathalyzer test was administered to him at 11:10 p.m. on the same evening.

Sullivan was convicted of the offense defined in IND. CODE 9-11-2-1 which provides that "[a] person who operates a vehicle with ten-hundredths percent [.10 % ], or more, by weight of alcohol in his blood commits a class C misdemeanor." Sullivan directs our attention to the second district's decision in Smith v. State (1986), Ind.App., 502 N.E.2d 122, 127, trans. denied in which this court considered the admissibility of breathalyzer test results in a prosecution for driving while intoxicated under I.C. 9-11-2-2. There, the court expressed its belief that extrapolation would be required to support a conviction under I.C. 9-11-2-1 "by the clear language of the statutes." The court did not define extrapolation; neither did it express any opinion on the question of whether such evidence must be derived exclusively from expert testimony,[Footnote 3] as the necessity of such evidence was not at issue in the case.

We are of the opinion that given the factual circumstances of this case, the jury could reasonably have determined that Sullivan's blood-alcohol level met or exceeded ten-hundredths percent at the time of the offense without expert testimony relating the chemical test result back to the time of violation. Breathalyzer test results obtained twenty-five minutes after Sullivan was stopped indicated a blood-alcohol content by weight of twenty-hundredths percent (.20 % ). Sullivan testified that on the evening of his arrest, he consumed nine or ten beers in a one-hour period, slept for about three hours, got up, consumed a cup of coffee, got into his truck and drove one block to a friend's house where he was stopped by the arresting officer. Police records indicate he reported at the time of his arrest that he did not know how many beers he had consumed on that evening. The record indicates that Sullivan had not eaten for over twenty-four hours before his arrest. The arresting officer testified that he observed Sullivan during the ride to the police post and Sullivan did not put anything in his mouth at that time. The record establishes the officers followed the method approved by the state department of toxicology in administering the chemical test to Sullivan which involves an observation period of twenty minutes during which no food or drink may be consumed by the individual to be tested.

We believe it reasonable to presume the jury was aware Sullivan's blood-alcohol level could have been higher or lower than the level indicated by the test, at the time of the violation. In light of the fact that the undisputed evidence establishes Sullivan did not ingest any alcohol for a period of at least three hours and twenty minutes before the blood-alcohol sample was taken, and Sullivan was tested within a short time after the alleged violation, the jury could have logically reached the Conclusion, based upon common sense and experience gained from everyday living, that Sullivan's blood-alcohol level was higher at the time of the alleged violation than it was when Sullivan was tested. Nonetheless, the circumstantial evidence presented, when viewed in the light most favorable to the verdict, is ample to sustain the jury's Conclusion that Sullivan operated the vehicle with at least ten-hundredths percent of alcohol in his blood. See, Pollard v. State (1982), Ind.App., 439 N.E.2d 177, 186.[Footnote 4]

Sullivan also contends the evidence will not suffice to establish his identity as the person who was convicted previously of operating a vehicle while intoxicated. The State alleged in its information that Terry J. Sullivan was previously convicted of the offense of operating a vehicle while intoxicated in Greene County, Indiana, on or about October 29, 1984. During the enhancement phase of the trial, the State's case-in-chief consisted of two documents: a certified copy of a docket sheet from Greene County Court, cause no. CC CR 84-353 T showing the conviction on October 4, 1984 of a Terry J. Sullivan of operating a vehicle while intoxicated, and a certified copy of the driving record and abstract of court conviction of a Jerry J. Sullivan, "D.O.B. 12/13/58" showing a "conviction (DWI)" on October 29, 1984 in Greene County.[Footnote 5] The prosecution offered these documents as self-authenticating exhibits, resting its case without any other evidence or testimony.

We agree with Sullivan that these documents alone are an inadequate basis for determining that this defendant committed the driving offense charged in the information. In recidivist proceedings, a mere document relating to a conviction of one with the same name as the defendant will not suffice to demonstrate that this defendant was, in fact, the person convicted of the prior offense. Thomas v. State (1984), Ind., 471 N.E.2d 677, 680; Duncan v. State (1980), 274 Ind. 144, 409 N.E.2d 597, 601. It has long been recognized that certified copies of judgments or commitments containing the same name or a name similar to a defendant's may be introduced to prove the conviction of prior offenses; however, there must be other supporting evidence to identify the defendant as being the same person named in the documents. Pointer v. State (1986), Ind., 499 N.E.2d 1087, 1089; Coker v. State (1983), Ind., 455 N.E.2d 319, 322. Thus, it is apparent that the Bureau of Motor Vehicles (BMV) report, which shows a conviction on the date alleged in the information, alone, will not suffice to establish this defendant's identity as the individual previously convicted in 1984.

Neither could the jury have considered the two documents together and determined identity beyond a reasonable doubt since the documents involved here tend to prove the same fact, namely, that a prior conviction occurred. When viewed in the light most favorable to the verdict, the docket sheet is at best cumulative evidence of facts established by the BMV report. Here, however, the docket sheet could also serve to render the reliability of the BMV report suspect, and perhaps lessen its tendency to prove that a ...


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