[Copyrighted Material Omitted]
Appeal from the Wabash Superior Court. The Honorable Christopher M. Goff, Judge. Cause No. 85D01-1307-FD-501.
ATTORNEY FOR APPELLANT: Joe Keith Lewis, Marion, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana.
Brown, Judge. Bailey, J., and Robb, J., concur.
[¶1] Cody Rutledge appeals his convictions for operating a vehicle while intoxicated as a class D felony and driving while suspended as a class A misdemeanor and his status as an habitual substance offender. Rutledge raises two issues which we consolidate and restate as whether the trial court abused its discretion by admitting certain evidence. We affirm.
Facts and Procedural History
[¶2] Around midnight or in the early morning hours of July 6, 2013, Wabash County Sheriff's Deputy Dustin Hurst was driving on patrol with Reserve Deputy David Brinson and on his way to Lagro, Indiana. Deputy Hurst encountered a maroon minivan and observed that it " appeared that the driver was having a hard time keeping the vehicle on the roadway," " it appeared as it would approach the edge of the roadway, it would jerk back, multiple times . . . um, trying to stay on the road," and the driver jerked the wheel and it " wasn't just from bumps."  Transcript at 24, 49. Reserve Deputy Brinson observed the minivan " would drift off the road, come back on the road." Id. at 54. Deputy Hurst followed the minivan until it pulled into a residential driveway. He drove by the minivan, read the license plate number, continued to a parking lot, and entered the license plate number into his computer to determine if the minivan " belonged there," which took a few seconds. Id. at 25. The address related to the license plate was in La Fontaine, and Deputy Hurst determined that the residence where the minivan was located was not in La Fontaine. Deputy Hurst started back and observed that the minivan had already backed out and was starting onto the road again " [s]o, it stayed a very short . . . time there and it continued east from there." Id. at 26.
[¶3] Deputy Hurst turned around and saw that the minivan entered the Main Street of Lagro, went through a stop sign, traveled approximately two blocks, and then pulled into another residence. Deputy Hurst continued by to a street, turned
around, and returned to the location of the minivan which took about ten to thirty seconds. During this time, he did not observe anybody around the minivan, any dome light illuminate, or any door open. Reserve Deputy Brinson did not observe any other vehicles, anything happening around the minivan, or any dome light illuminate.
[¶4] Deputy Hurst approached the minivan with his vehicle facing the driver's side of Rutledge's minivan and pulled up perpendicular to it. He could not initially tell with his headlights if anyone was sitting in the minivan and did not activate his red and blue lights. He later testified that he was " just going up to check on the driver and kind of see if they belonged where they were at. What was going on." Id. at 29.
[¶5] Deputy Hurst exited his vehicle, walked up to the driver's side of the minivan, and observed Rutledge sitting in the driver's seat " lying side wise over the . . . center console of the vehicle with his head resting on the passenger seat." Id. at 37. Reserve Deputy Brinson also exited Deputy Hurst's vehicle and went to the back corner of the minivan. Deputy Hurst tapped on the driver's side window, Rutledge sat up, and they had a brief discussion before Rutledge exited the vehicle. Either Rutledge or Deputy Hurst opened the door so they could communicate. Deputy Hurst asked Rutledge what was going on, and Rutledge said that he had been asleep and did not know what was going on. Deputy Hurst noticed an odor of an alcoholic beverage, that Rutledge's eyes were red and glassy, that his speech was slightly slurred, and observed an open alcohol container in the driver's side of the console. At one point during the conversation, Rutledge said that the keys were not in the ignition, and Deputy Hurst located the keys on the passenger side floor.
[¶6] Deputy Hurst asked Rutledge to step out of the vehicle. Rutledge completed a partial field sobriety test but then stated that he did not want to participate in any more such tests. Specifically, Deputy Hurst completed " about two-thirds of the way through the horizontal gaze nystagmus test" before Rutledge advised that he did not wish to participate any further. Id. at 38. Rutledge said that he was not operating the vehicle, that a friend had driven him to Lagro, and that the friend had left. Deputy Hurst stated that he did not see the dome light illuminate, and Rutledge said that maybe someone climbed out the window. Deputy Hurst asked Rutledge if he had a driver's license, and Rutledge indicated that he did not.
[¶7] Deputy Hurst offered Rutledge a certified chemical test and gave him the implied consent warning, and Rutledge refused to take the test. Deputy Hurst transported Rutledge to the Sheriff's Department and obtained a search warrant
for a blood draw. The blood was later determined to contain .19 grams of alcohol per ...