Hatch v. State , 177 Ind. App. 231 ( 1978 )

378 N.E.2d 949 (1978)

Freddie Lee HATCH, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.

No. 3-1077A282.

Court of Appeals of Indiana, Third District.

August 9, 1978.

Edward N. Smith, Ft. Wayne, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

The court below found that Hatch refused to submit to a chemical breath test and recommended that his driver's license be suspended for a period of one year. Hatch's sole argument in this appeal is that there was insufficient evidence to support the court's finding.

On May 2, 1977, at approximately 1:05 A.M., State Trooper Wiley stopped Hatch's car after he observed it disregard a traffic signal while travelling at a high rate of speed. When Wiley approached the car he detected the odor of alcohol and saw that Hatch had difficulty removing his driver's license from his wallet. When asked to step out of the car Hatch complied, but he was unsteady on his feet when he did so.

After issuing a citation for the signal violation, Wiley informed Hatch that he was under arrest for that violation and that he (Wiley) had probable cause to believe that Hatch had been driving while under the influence of liquor. In response to Wiley's offer, Hatch agreed to accompany him to a breathalizer testing facility.

Upon arriving at the facility Wiley prepared the breathalizer, handed Hatch the intake tube and told him to blow air into it. Hatch took the tube into his mouth but would not blow into it with sufficient force to fill the sample capsule. He did this several times, telling Wiley that "that was all [Wiley] was going to get." Wiley advised Hatch that failure to give a suitable sample would be treated as a refusal to take the test, but Hatch refused to cooperate nonetheless.

This evidence was sufficient to support the finding below that Hatch refused to submit to a chemical breath test. Application of Kunneman (1972), Okl.Ct. App., 501 P.2d 910. Furthermore, since the proceeding below was administrative, not criminal, in nature, Davis v. State (1977), Ind. App. 367 N.E.2d 1163, 1166, Hatch's refusal need not be proved beyond a reasonable doubt. Bell v. Department of Motor Vehicles (1972), 6 Wash. App. 736, 496 P.2d 545.

The judgment below is affirmed.

Affirmed.

GARRARD, P.J., and STATON, J., concur.