Hancock v. State , 1999 Ind. App. LEXIS 2197 ( 1999 )

OPINION

FRIEDLANDER, Judge

Randall A. Hancock appeals his conviction of Operating a Vehicle With at Least Ten-Hundredths Percent of Alcohol by Weight in Grams in Two Hundred Ten Liters of Breath,¹ a class C misdemeanor. We address sua sponte the following dis-positive issue:

Did the trial court err in convicting Hancock under Ind.Code Ann. § 9-30-5-1(a)(2)?

We reverse.

The facts favorable to the conviction are-that at 2:35 a.m. on December 6, 1997, Officer Bruce Rood of the Kokomo Police Department stopped Hancock because Hancock was driving without his headlights on. When he spoke to Hancock, he noted that Hancock’s speech was slurred, his eyes were watery, his breath smelled of alcohol, and there was a beer bottle on the floor of Hancock’s car. Officer Rood administered four field sobriety tests and a portable breath test, all of which Hancock flunked. Officer Rood also discovered that Hancock, whose driver’s license was suspended at the time, gave Officer Rood a false social security number and an incorrect birthday. Officer Rood arrested Hancock for false informing. Hancock was transported to the Howard County Jail, where Officer Desmond Christian administered an intoxilizer breath test on a BAC Data Master machine at 3:18 a.m. The test revealed that Hancock had a .18% blood-alcohol content. Hancock was charged with operating a vehicle with at least ten-hundredths percent of alcohol by weight in grams in two hundred ten liters of breath, and was convicted as set out above following a jury trial.

Hancock was convicted under Ind.Code Ann. § 9-30-5-l(a)(2), which states: “(a) A person who operates a vehicle with at least ten-hundredths percent (0.10%) of alcohol by weight in grams in ... (2) two hundred ten (210) liters of the person’s breath ... commits a Class C misdemean- or.”

In Sales v. State, 714 N.E.2d 1121 (Ind.Ct.App.1999), as here, the defendant was charged with operating a vehicle with at least .10% by weight of alcohol in 210 liters of breath, in violation of IC § 9-30-5—1(a)(2). In reviewing Sales’s conviction, this court considered “whether breath test results expressed in grams per 210 liters of breath can support a conviction under Indiana Code Section 9-30-5-1(a)(2) as written.” Sales v. State, 714 N.E.2d at 1126. We need not reproduce that analysis here. It is enough for purposes of this appeal to note that this court affirmed the trial court’s conclusion that it is physically and medically impossible to commit that offense as it is currently defined in the statute. Id. Therefore, we concluded, “Indiana Code Section 9-30-5-1 (a)(2) is defective on its face and will not support a conviction.” Sales v. State, 714 N.E.2d at 1129 (emphasis supplied).

We are mindful that Hancock has failed to present any argument concerning the facial invalidity of IC § 9-30-5-l(a)(2). Hancock’s failure to raise this argument would normally result in waiver of the issue. However, we may address the merits of an issue not preserved at trial if the error is fundamental. Roach v. State, 695 N.E.2d 934 (Ind.1998); see also, Bufkin v. State, 700 N.E.2d 1147 (Ind.1998) (appellate court may address an issue sua sponte if it is of sufficient importance). An error is fundamental if it is “so prejudicial to the rights of a defendant that it amounted to a denial of fundamental due process.” State v. Winters, 678 N.E.2d 405, 410 (Ind.Ct.App.1997). It is fundamental error to convict a defendant of an offense which this court has determined is medically impossible to commit. See Sales v. State, 714 N.E.2d 1121. Therefore, the trial court committed fundamental error in entering judgment of conviction under IC § 9-30-5-1(a)(2), and the conviction must be reversed.

Judgment reversed.

ROBB, J., concurs. RILEY, J., dissenting.

1 . Ind.Code Ann. § 9-30-5-1 (West 1992).