These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE MARION COUNTY SUPERIOR COURT. The Honorable Amy Jones, Judge. Cause No. 49F08-1301-CM-006225.
ATTORNEY FOR APPELLANT: SUZY ST. JOHN, Marion County Public Defender Agency, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; MICHAEL GENE WORDEN, Deputy Attorney General, Indianapolis, Indiana.
MATHIAS, Judge. BRADFORD, J., and PYLE, J., concur.
MEMORANDUM DECISION -- NOT FOR PUBLICATION
Juan Concepcion (" Concepcion" ) was convicted of Class A misdemeanor operating while intoxicated and Class C misdemeanor operating with a blood alcohol content (" BAC" ) greater than 0.08%. Concepcion appeals and argues that the State failed to present sufficient evidence to support his convictions.
Facts and Procedure
On January 27, 2013, at 3:09 a.m., Indiana State Police Trooper Jarrin Franklin (" Trooper Franklin" ) responded to a 911 report of an accident on Interstate 70 in Marion County. When Trooper Franklin arrived at the scene of the accident, he observed Concepcion standing next to his car, speaking with a passer-by who had stopped at the scene and called 911. Concepcion's car was on the left shoulder of the highway, angled diagonally and partially extended into the leftmost lane of the three-lane highway. As Trooper Franklin approached Concepcion, he saw that Concepcion " had very unsteady balance and he had very slurred speech and also had bloodshot, glassy eyes." Tr. p. 9. Concepcion told Trooper Franklin that, as he was traveling on Interstate 70, a tire on his car blew out, causing him to collide with the concrete barrier dividing the eastbound and westbound lanes of the highway. He admitted to Trooper Franklin that he was the driver of the car involved in the collision and that he had been drinking.
Trooper Franklin then administered a horizontal gaze nystagmus (" HGN" ) test, which Concepcion failed. For safety reasons, because of the proximity of the accident scene to the travelled lanes of the highway and Concepcion's unsteadiness, Trooper Franklin did not administer the " one leg stand" or the " walk and turn" field sobriety tests. Trooper Franklin dispatched an ambulance to the scene to ensure that Concepcion was not injured. After the medics confirmed that Concepcion was uninjured, Trooper Franklin transported Concepcion to the Beech Grove Police Department. As he placed Concepcion in his cruiser, Trooper Franklin noted that Concepcion's clothes smelled of alcohol.
At the police station, Trooper Franklin first administered to Concepcion another HGN test, which Concepcion again failed. Trooper Franklin then initiated the " walk and turn" field sobriety test, but Concepcion refused to complete the test, telling Trooper Franklin that " he was too intoxicated to do that and he didn't want to make himself look bad." Tr. p. 22. Concepcion, however, agreed to take a certified breath test. The breath test was performed at 4:21 a.m., an hour and twelve minutes after Trooper Franklin arrived at ...