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02/16/88 FRANK D. BOYD v. STATE INDIANA

Filed: February 16, 1988.

FRANK D. BOYD, DEFENDANT-APPELLANT,
v.
STATE OF INDIANA, PLAINTIFF-APPELLEE.



Appeal from the Vanderburgh Superior Court, The Honorable Mark A. Foster, Misdemeanor Referee, Cause No. 86-MT-15242

Ratliff, C.j., Robertson, J., Staton, J., concur.

Author: Ratliff

RATLIFF, C.J.

STATEMENT OF THE CASE

Frank D. Boyd appeals his conviction by court trial of operating a motor vehicle while intoxicated, a class A misdemeanor[Footnote 1] for which he was fined $500 and received a 180 day suspended sentence. We affirm.

FACTS

On November 1, 1986, about 4:00 P.M., Boyd was driving a pickup truck south on First Avenue in Evansville. He stopped for a stop light at the intersection of Mill Road. Indiana State Police Officer Humphrey was stopped in the lane next to Boyd. When the light changed, the pickup truck took off at a high rate of speed. Trooper Humphrey followed for a distance of one-half mile, clocking the pickup truck by radar. The truck attained a speed of 54 miles per hour in a 30 mile per hour zone, and Humphrey stopped the truck. Boyd, the operator of the truck, smelled strongly of alcohol, his eyes were bloodshot, and he was very talkative. Boyd's speech was not slurred and no field sobriety tests were administered. Because Boyd was incapable of giving a sufficient breath sample for an alcohol test, he was taken to Welborn Hospital at 4:38 P.M. where a blood test administered there revealed a .14% blood alcohol content. Boyd exhibited no problems with his driving other than the speeding violation.

ISSUE

The sole issue presented for our decision is whether the evidence was sufficient to sustain the conviction.

Discussion AND DECISION

Boyd challenges the sufficiency of the evidence to sustain his conviction contending there was no evidence of impaired condition on his part.[Footnote 2] He relies upon Warner v. State (1986), Ind. App., 497 N.E.2d 259, and Sering v. State (1986), Ind. App., 488 N.E.2d 369.

In Warner, police followed the defendant's pickup truck for seventeen blocks and observed no improper driving. The truck was stopped because of a complaint that the driver had attempted to pick up two young women. An odor of alcohol on Warner's breath was detected by the officer and Warner's eyes were bloodshot. Although Warner successfully performed a finger to nose dexterity test, a breath test revealed a blood alcohol content of .23 percent. The Second District of this court reversed the conviction on the ground there was no evidence of any impaired condition. The Warner court contended the provision in Indiana Code section 9-11-1-7 that a blood alcohol content of .10% or more is prima facie evidence of intoxication[Footnote 3] without proof of impaired driving ability was an insufficient basis upon which to base a conviction for operating a motor vehicle while intoxicated.[Footnote 4] The holding in Warner was based in part on the decision in Sering where the court held that the offense of operating a motor vehicle with a blood alcohol content of .10% or more (Ind. Code § 9-11-2-1) was not the same offense as operating a motor vehicle while intoxicated (Ind. Code § 9-11-2-2) because the latter involved the additional element of "impaired condition of thought and action and the loss of normal control of a person's faculties to such an extent as to endanger any person." Ind. Code § 9-11-1-5. In Sering, however, the conviction of operating a motor vehicle while intoxicated was upheld because of the ample evidence of Sering's obviously impaired condition.

However, we do not believe Boyd is entitled to reversal on the basis of either Sering or Warner. Rather, we believe the conviction should be affirmed on the basis of our decisions in Collins v. State (1986), Ind. App., 491 N.E.2d 1020, and Hughes v. State (1985), Ind. App., 481 N.E.2d 135. In Collins, the defendant was stopped because there were no rear lights in operation on his truck. Collins emitted a strong odor of alcohol, his eyes were bloodshot, his speech was slurred, he was extremely talkative, he failed certain dexterity tests, and a breathalyzer test revealed a blood alcohol content of .12%. We held the evidence sufficient.

In Hughes, the defendant was driving in the proper lane, was not weaving, and other than speeding, exhibited no aberrant driving. When Hughes was stopped for speeding, the officer smelled alcohol on Hughes's breath. Hughes had no speech problem and satisfactorily performed dexterity tests. We affirmed the conviction rejecting Hughes's contention that because he was not driving erratically, except for his speed, and passed field sobriety tests, the .115% blood alcohol reading on the breathalyzer was not a sufficient basis upon which to convict him. We cited the statutory presumption of intoxication, then Ind. Code ยง 9-4-1-54(b)(4)(A), and stated that ...


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