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Connor v. State

Court of Appeals of Indiana

November 29, 2018

Brian Harold Connor, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marion Superior Court Trial Court Cause No. 49G19-1703-CM-10257 The Honorable Steven J. Rubick, Magistrate

          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 Indianapolis, Indiana

          Najam, Judge.

         Statement of the Case

         [¶1] 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.

         [¶2] We reverse.[1]

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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 C infraction.

         [¶7] 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.

         [¶8] 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 ...


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