from the Marion Superior Court Trial Court Cause No.
49G19-1703-CM-10257 The Honorable Steven J. Rubick,
Attorneys for Appellant Marc Lopez Matthew Kroes The Marc
Lopez Law Firm Indianapolis, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Tyler G. Banks Deputy Attorney General
of the Case
Brian Harold Connor appeals his conviction for operating a
vehicle with an alcohol concentration equivalent to at least
0.08 gram of alcohol but less than 0.15 gram of alcohol per
210 liters of breath, as a Class C misdemeanor, following a
bench trial. Connor raises two issues for our review, one of
which we find dispositive, namely, whether the trial court
abused its discretion when it admitted into evidence the
results of a chemical breath test.
and Procedural History
On March 17, 2017, the Indianapolis Metropolitan Police
Department ("IMPD") conducted a sobriety checkpoint
near the intersection of Delaware Street and Michigan Street.
At approximately 7:25 p.m., Connor arrived at the sobriety
checkpoint, and IMPD Captain Don Weilhamer stopped Connor.
Captain Weilhamer noticed that there "was an odor of
alcoholic beverage coming from" Connor. Tr. Vol. II at
43. He further noticed that Connor's eyes were
"bloodshot and glassy. He was also reacting rather
slowly when [Captain Weilhamer] was asking him for his
driver's license and registration." Id.
Captain Weilhamer then asked Connor how much he had had to
drink, and Connor responded that he had had two beers.
At that point, Captain Weilhamer asked Connor to step out of
the car. Captain Weilhamer then administered a series of
field sobriety tests to Connor. Connor passed the test that
required him to stand on one leg, but he failed the
horizontal gaze nystagmus test and the walk and turn test.
Captain Weilhamer then read Connor the implied consent
advisement, and Connor agreed to take a chemical breath test.
Captain Weilhamer escorted Connor to a local police station
and administered a breath test using the Intox EC/IR II
machine. When Connor blew into the mouthpiece for the test,
he blew so hard that the instrument registered a
"maximum flow exceeded" message. Id. at
51. Captain Weilhamer then waited approximately three
minutes, replaced the mouthpiece, and administered another
test using the same machine. The results of the second breath
test showed that Connor had an alcohol concentration
equivalent to 0.097 gram of alcohol per 210 liters of breath.
After Captain Weilhamer received the results of the test, he
placed Connor under arrest and searched his pockets. During
that search, Captain Weilhamer found a small flask inside
Connor's pocket that "smelled of alcohol."
Id. at 64.
The State charged Connor with one count of operating a
vehicle while intoxicated, as a Class C misdemeanor; one
count of operating a vehicle with an alcohol concentration
equivalent to at least 0.08 gram of alcohol but less than
0.15 gram of alcohol per 210 liters of breath, as a Class C
misdemeanor; and one count of possessing an open alcoholic
container during the operation of a motor vehicle, as a Class
The trial court held a bench trial on November 13, 2017.
During the trial, the State presented as evidence the
testimony of IMPD Lieutenant Richard Kivett, who was the
sobriety checkpoint commander on March 17. Lieutenant Kivett
testified about the details of the sobriety checkpoint. At
the end of Lieutenant Kivett's testimony, Connor moved to
suppress evidence that officers had obtained at the
checkpoint on the ground that the checkpoint was
unconstitutional. The trial court bifurcated the trial and
allowed the parties to submit briefs on the constitutionality
of the checkpoint. Thereafter, the trial court denied
Connor's motion to suppress.
The trial court continued the trial on February 5, 2018.
During the second phase of the trial, the State presented the
testimony of Captain Weilhamer as evidence. Captain Weilhamer
testified about his observations of Connor at the sobriety
checkpoint and about the results of the field sobriety tests.
He also testified that, based on his observations of Connor
and the failed field sobriety tests, he had decided to
administer a chemical breath test to Connor. Captain
Weilhamer then testified about the procedure he had followed
when he administered the breath test. Specifically, he
testified that, when he had attempted to perform the test the
first time, "Connor blew so hard that the instrument
registered maximum flow ...