Baran v. State

639 N.E.2d 642, 1994 Ind. LEXIS 114, 1994 WL 472065
CourtIndiana Supreme Court
DecidedSeptember 1, 1994
Docket49S05-9409-CR-828
StatusPublished
Cited by42 cases

This text of 639 N.E.2d 642 (Baran v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baran v. State, 639 N.E.2d 642, 1994 Ind. LEXIS 114, 1994 WL 472065 (Ind. 1994).

Opinions

ON PETITION TRANSFER

SULLIVAN, Justice.

Following a bench trial, James S. Baran was convicted of operating a vehicle with 10%, or more by weight of alcohol in the blood, a class C misdemeanor.1 Baran was sentenced to 60 days; the sentence was suspended. Baran was found not guilty of driving while intoxicated.2

A majority of the Court of Appeals' Fifth District reversed the conviction on the grounds there was insufficient evidence that the result of the breath test was expressed as a percentage by weight in the blood. Baran v. State (1993), Ind.App., 622 N.E.2d 1326 (2-1 decision, Rucker, J., dissenting). Because the majority holding in Baran conflicts with the majority holding in Daum v. State (1993), Ind.App., 625 N.E.2d 1296 (2-1 decision, Hoffman, J., dissenting), trans. denied, we grant transfer. Ind.Appellate Rule 11(B).

In reversing Baran's conviction for insufficient evidence, the Court of Appeals did not address all of the issues raised by Baran in his original appeal. Because we affirm the conviction, we do so here:

1. Whether there was legal cause to stop Baran's vehicle and probable cause to offer a breath test;
2. Whether the probable cause affidavit was erroneously admitted;
[644]*6443. Whether the breath test result was erroneously admitted; and
4. Whether the evidence is sufficient to sustain the conviction.

Facts

The evidence most favorable to the verdict shows that early in the morning on February 20, 1991, an Indiana State trooper observed that the truck being driven by Baran was weaving from lane to lane on the interstate. After signalling Baran to stop, the trooper detected an odor of alcohol. The trooper then summoned a service truck to impound Baran's vehicle and transported him to Speedway, Indiana, where Baran submitted to a breath test conducted by the trooper with the use of an Intoxilyzer 5000 machine. The Intoxilyzer machine printout reported that Baran's blood alcohol content was .11.

1. There was Probable Cause to Offer a Breath Test

Baran argues that the trial court should have suppressed all evidence obtained after he was stopped because the State failed to establish, that the trooper had either legal cause to stop his vehicle or probable cause to offer a breath test.

Resolution of the first part of Bar-an's argument is guided by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 LEd.2d 889 (1968), in which the Supreme Court recognized that investigative stops of limited duration and reasonably related in scope to the justification for their initiation are legal. Terry held that a police officer need not have probable cause to make an arrest when making an investigative stop, but must be able "to point to specific and articulable facts which, taken together with rational inferences from those facts," reasonably warrant " 'the intrusion upon the constitutionally protected interests'" of private citizens. Id., 392 U.S. at 21-22, 88 S.Ct. at 1880 (quoting Camara v. San Francisco Mun. Ct., 387 U.S. 523, 534, 87 S.Ct. 1727, 1738-34, 18 L.Ed.2d 930 (1967)). Indiana courts follow the Terry guidelines. Platt v. State (1992), Ind., 589 N.E.2d 222, 225-26; Luckett v. State (1972), 259 Ind. 174, 179, 284 N.E.2d 738, 741. Whether a particular fact situation justifies an investigatory stop is determined on a case by case basis. Platt, 589 N.E.2d at 226. The requirements of the Fourth Amendment are satisfied if the facts known to the officer at the moment of the stop are such that a person "of reasonable caution" would believe that the "action taken was appropriate." Terry, 392 U.S. at 22, 88 S.Ct. at 1880. Indiana has adopted this test. (Gipson v. State (1984), Ind., 459 N.E.2d 366, 368.

Here, the trooper watched Baran's truck weave more than once back and forth between lanes as it traveled along the interstate. Given this conduct and the potential danger it posed to other motorists, it was reasonable for the trooper to believe that further investigation was warranted. Clark v. State (1990), Ind., 561 N.E.2d 759, 762. See also Sell v. State (1986), Ind.App., 496 N.E.2d 799, 800 (stop appropriate where car was traveling 85 miles per hour below the posted speed limit); Jaremczuk v. State (1978), 177 Ind.App. 628, 630-31, 380 N.E.2d 615, 617 (stop appropriate where vehicle was weaving within the lane of traffic and momentarily left the roadway). A person of reasonable caution would believe this stop was appropriate.

Baran argues that even if the initial stop was legal, the trooper did not have probable cause to take him into custody and offer him a breath test. However, the cases Baran cites in support of this argument are distinguishable. In Irwin v. State (1978), 178 Ind. App. 676, 682, 383 N.E.2d 1086, 1090, for example, the court held that the officer's perception of odor of alcohol and defendant's admission that he had recently consumed some beer were insufficient to give the officer probable cause to make an arrest for public intoxication. By contrast, here, the trooper not only smelled alcohol, but also observed Baran driving in an unsafe manner. This is sufficient probable cause to offer a breath test. State v. Johnson (1987), Ind. App., 508 N.E.2d 431, 432, trons. denied.

In addition to these legal arguments about the Terry stop and probable cause to offer the breath test, Baran asserts that the trooper should not have been permitted to testify about observing Baran's driving be[645]*645cause the trooper had no independent recollection of those observations. The record does not support this argument. Although the trooper could not remember every detail surrounding the stop, there were specific details that he did recall: that Baran was not the owner of the truck; that there was a passenger in the truck; and that Baran was from out-of-state and was returning from the Daytona 500. The trooper testified that he specifically recalled observing the truck weave from lane to lane on the interstate. The fact that he could not recall every detail goes to the weight of the evidence, not its admissibility. Stanley v. State (1987), Ind., 515 N.E.2d 1117, 1119. It was for the fact-finder, the trial court. in this case, to determine what weight to give the trooper's testimony. No error occurred.

Finally, Baran claims that the trial court erred in failing to allow testimony from other witnesses who would have contradicted the trooper's testimony about Baran's driving. The record reveals otherwise.

Baran moved to suppress evidence of everything that took place after he was sig-nalled to pull over by the trooper. Baran contended that the trooper's stop was pretex-tual because he had not, in fact, observed the truck weaving between lanes of traffic.

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Bluebook (online)
639 N.E.2d 642, 1994 Ind. LEXIS 114, 1994 WL 472065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baran-v-state-ind-1994.