APPEAL FROM THE MONTGOMERY SUPERIOR COURT. The Honorable David A. Ault, Judge. Cause No. 54D01-1307-FD-2306.
ATTORNEY FOR APPELLANT: MARK SMALL, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; RICHARD C. WEBSTER, Deputy Attorney General, Indianapolis, Indiana.
SULLIVAN, Senior Judge. BAKER, J., and RILEY, J., concur.
SULLIVAN, Senior Judge
Courtney West appeals her conviction of operating a vehicle while intoxicated with a prior conviction within the past five years, a Class D felony. Ind. Code § § 9-30-5-2 (2001), 9-30-5-3 (2008). We affirm and remand with instructions.
On the afternoon of July 1, 2013, Ryan Edgell drove by the courthouse in Crawfordsville, Indiana. He saw a woman, who was later identified as West, sitting in the driver's seat of a parked car drinking a can of beer. The car was parked in a public parking spot along the side of the street. Edgell called 911, but he was told that no officers were available.
Next, Edgell went to lunch at a nearby restaurant. As he was eating, he saw West come out of the courthouse with a man, who was later identified as David West (David), and return to the car. West sat in the driver's seat.
Edgell called the police again, and Officer William Line of the Crawfordsville Police Department was dispatched to the scene. Line blocked West's car with his. He then approached West's car, which was running. West was still sitting in the driver's seat. Line asked West what she was doing, and West responded, " I'm trying to pull out, you were in my way." Tr. p. 11.
Line asked West to turn off the car and get out of it. West exited the car but did not turn it off. Line noticed that West's speech was slurred, and she had trouble pulling her driver's license out of her wallet. In addition, West had trouble following Line's instructions and had to touch the car to maintain her balance. West also had an odor of alcohol on her person. During their interaction, West told Line she was there because she had business in the courthouse that day.
Line asked West to perform balance, horizontal gaze nystagmus, and counting tests to determine if she was impaired, and she failed all of them. West submitted to a portable blood alcohol test, which showed a blood alcohol content of .28%. Id. at 19.
Next, Line asked West if she would consent to another breath test. She initially did not agree, saying, " if she'd take the test she'll flunk it, she had too much to drink." Id. at 19. West also told David, " I told you I was going to go to jail." Id. at 27. West eventually consented to the test, and Line took her to the jail, where the testing device was located. The test ...