Finney v. State

OPINION

HOFFMAN, Judge.

Appellant-defendant Mary Finney appeals from her conviction of operating a vehicle with at least 0.10% by weight alcohol in her blood, enhanced to a Class D felony. The facts most favorable to the judgment are presented below.

Shortly before 8:00 P.M., on June 2, 1994, LaPorte County Sheriff Captain Michael Mollenhauer observed Finney driving a Chevrolet westbound on County Road 300 South. He noted that Finney was traveling at a high rate of speed as she approached a four-way stop at County Road 300 East. Captain Mollenhauer then heard a loud noise.

The captain immediately drove to the intersection where he observed that Finney’s automobile had collided with another automobile carrying a woman and her baby. Captain Mollenhauer summoned an ambulance and approached Finney. Finney smelled of alcohol and when the ambulance crew arrived, she became combative.

Finney was transported to the LaPorte Hospital. At the hospital, Indiana State Police Trooper Chris Hager questioned Finney about the accident. Finney admitted that she was the driver of the Chevrolet but “didn’t know what had occurred.” The trooper noted that Finney’s eyes were bloodshot and that her breath smelled of alcohol.

Trooper Hager requested hospital personnel to draw a sample of Finney’s blood. At 9:06 P.M., samples of Finney’s blood were drawn. On June 7, 1994, Trooper Hager transported one of the samples to the Indiana State Police laboratory. Laboratory analysis revealed that the sample contained a blood alcohol content (BAC) of 0.12%

Finney was charged with operating a vehicle with at least 0.10% by weight alcohol in her blood, a Class C misdemeanor. The charge was enhanced to a Class D felony based upon Finney’s earlier conviction of driving while intoxicated. ■ Following a bench trial, Finney was convicted as charged. She now appeals.

Finney raises the following restated issues for review:

(1) whether IND. CODE § 9-30-6-15 (1998 Ed.) is unconstitutional;

(2) whether Finney’s expert witness, Dr. Miles Jones, rebutted IND. CODE § 9-30-6-15’s permissive presumption regarding Finney’s blood alcohol content; and

(3) whether there is sufficient evidence to support Finney’s conviction for operating a vehicle with at least 0.10% by weight of alcohol in her blood.

Finney contends that the statutory presumption relating back to a person’s blood alcohol content from the time of the test to the time of the accident should be rejected. Specifically, she challenges the constitutionality of IND. CODE § 9-30-6-15.

Statutes are presumed to be constitutional and such a presumption continues until clearly overcome by a showing to the contrary. Finney v. State, 491 N.E.2d 1029, 1031 (Ind.Ct.App.1986); Lewis v. State, 484 N.E.2d 77, 79 (Ind.Ct.App.1985), trans. denied. The burden is on the party challenging a statute to show unconstitutionality. Finney, 491 N.E.2d at 1031. All doubts must be resolved in favor of constitutionality. Regan v. State, 590 N.E.2d 640, 645 (Ind.Ct.App.1992).

Our legislature may enact laws declaring that, on proof of one fact, another fact may be inferred or presumed; such enactments are constitutional, provided no constitutional right of the accused is destroyed thereby, the presumption is subject to rebuttal, and there is some rational connection between the fact proved and the ultimate fact presumed. Thompson v. State, 646 N.E.2d 687, 690 (Ind.Ct.App.1995), trans. denied; Hall v. State, 560 N.E.2d 561, 562 (Ind.Ct.App.1990). IND. CODE § 9-30-6-15, previously IND. CODE § 9-11-4-15, has withstood numerous constitutional challenges before this Court. As noted in Chilcutt v. State, 544 N.E.2d 856, 858 (Ind.Ct.App.1989), trans. denied:

There is a rational connection in IND. CODE § 9-11-4-15 [now IND. CODE § 9-30-6-15] between the fact proved and the ultimate fact presumed. The fact proved is the person had a blood alcohol content of at least .10% at the time the test sample was taken, which was within the specified period of time. This leads to the ultimate fact presumed that within this time period when the defendant has been operating his vehicle he had at least a blood alcohol content of .10%

Id. at 858; accord Keyes v. State, 559 N.E.2d 1216, 1218 (Ind.Ct.App.1990); Thompson, 646 N.E.2d at 690-691. As the party challenging the statute, Finney bears the heavy burden of showing that the statute is unconstitutional. Person v. State, 661 N.E.2d 587, 592 (Ind.Ct.App.1996), trans. denied. Fin-ney, however, offers nothing of substance to support her constitutional attack of the statute. See State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind.1992) (all doubts are resolved against the party challenging the statute).

Additionally, Finney’s assertions regarding alcohol metabolism rely on unsubstantiated speculation. Her claim that “BAC extrapolations are never possible in the absorption phase” mischaracterizes Dr. Miles Jones’ testimony. As pointed out by the trial court, Dr. Jones merely indicated that extrapolation may be calculated for the excretion phase with the availability of additional information. Finney, however, did not provide Dr. Jones with enough information to enable him to calculate her blood alcohol content. Thus, Finney has failed to rebut the presumption that her blood alcohol content was at least 0.10% at the time she had been operating her vehicle. See Livingston v. State, 537 N.E.2d 75, 77-78 (Ind.Ct.App.1989) (affirming conviction of operating a vehicle with 0.10% or more blood alcohol content when the defendant failed to rebut the statutory presumption relating back to the results of his blood alcohol test).

Finney further challenges the sufficiency of the evidence to sustain her conviction. When reviewing the sufficiency of the evidence, this Court will neither weigh the evidence nor judge the credibility of witnesses. Rather, this Court will consider the evidence most favorable to the State and all reasonable inferences, which may be drawn therefrom, to see if there is substantial evidence of probative value to support the verdict. Regan, 590 N.E.2d at 645.

In the present case, the evidence showed that shortly before 8:00 P.M. on June 2,1994, Finney operated her vehicle. At approximately 9:06 P.M. the same evening, a sample of Finney’s blood was drawn. The sample was analyzed by Ann Werner-Tenbarge, a forensic chemist. Tenbarge testified that she followed standard procedures when analyzing the sample using gas chromatography. Her analysis shows that the sample taken from Finney on the evening of the incident had a blood alcohol content of 0.12%. Because the BAC test was administered within three hours of the time Finney was operating her vehicle, the evidence is sufficient to support her conviction. See IND. CODE § 9-30-6-15; Thompson, 646 N.E.2d at 693. Thus, the judgment of the trial court is affirmed.

Affirmed.

GARRARD, J., concurs. SULLIVAN, J., concurs with separate opinion.