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State v. Schulze

Court of Appeals of Indiana

August 26, 2014

STATE OF INDIANA, Appellant-Plaintiff,
v.
BRANDON SCOTT SCHULZE, Appellee-Defendant

APPEAL FROM THE SHELBY SUPERIOR COURT. The Honorable David N. Riggins, Judge. Cause No. 73D02-1308-CM-650.

ATTORNEYS FOR APPELLANT: GREGORY F. ZOELLER, Attorney General of Indiana, GEORGE P. SHERMAN, Deputy Attorney General, Indianapolis, Indiana.

MAY, Judge. KIRSCH, J., and BAILEY, J., concur.

OPINION

Page 442

MAY, Judge

The State of Indiana appeals the reinstatement of Brandon Scott Schulze's driving privileges, which had been suspended because he refused to take a chemical test for alcohol intoxication in violation of the Indiana Implied Consent law. See Ind. Code § 9-30-6-7. The trial court reinstated Schulze's privileges because the deputy who offered the test to Schulze was not certified to administer the test. The State argues the court's decision was erroneous because Schulze's refusal to take the test obviated any need for a deputy trained to administer the test. We reverse.

FACTS AND PROCEDURAL HISTORY

On August 9, 2013, at around 7:00 a.m., Shelby County Sheriff's Deputy Ian Michael was dispatched to a location where a truck was off the road. While Deputy Michael was at the scene, Schulze arrived in his vehicle. Deputy Michael spoke with Schulze and noticed an odor of alcohol on his breath. Schulze's speech was slow and slurred, and his eyes were red and watery.

Deputy Michael performed a horizontal gaze nystagmus test and Schulze failed. Deputy Michael then performed a portable breath test which was positive for the presence of alcohol. He then informed Schulze of the implied consent law:

I have probable cause to believe that you have operated a vehicle while intoxicated. I must now offer you the opportunity to submit to a chemical test and inform you that your refusal to submit to a chemical test will result in the suspension of your driving privileges for one year. If you have at least one previous conviction for [sic] operating a vehicle while intoxicated, your refusal to

Page 443

submit to a chemical test will result in a suspension for two years. Will you now take a chemical test?

(Tr. at 15-16.) Schulze replied that he would not take the test. Deputy Michael then transported Schulze to jail.

During a pretrial conference on September 17, Schulze orally requested a hearing for Judicial Review of Probable Cause On Refusal of Chemical Test for Intoxication. On September 30, a hearing was held and Deputy Michael testified he was not a certified test operator on the DataMaster machine located at the jail. Schulze argued that because Deputy Michael was not a certified test operator, his offer of a chemical test was illusory, and thus the suspension of his license was invalid. The trial court granted his petition, finding: " This officer's not capable. The State failed to present any evidence to rebut that ...


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