Dale A. Wells v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 8, 2017
• Docket: 39A01-1705-CR-1119
• Status: Published

Opinion

MEMORANDUM DECISION FILED Dec 08 2017, 10:47 am Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James C. Spencer Curtis T. Hill, Jr. Dattilo Law Office Attorney General of Indiana Madison, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dale A. Wells, December 8, 2017

Appellant-Defendant, Court of Appeals Case No. 39A01-1705-CR-1119 v. Appeal from the Jefferson Superior Court. The Honorable Michael J. Hensley, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 39D01-1612-F6-1134

Shepard, Senior Judge

[1] Appellant Dale Wells contends the trial court wrongly determined that he

refused a certified breath test. Concluding that Wells has not demonstrated that

the evidence leads to just one conclusion that is opposite of the trial court’s

decision, we affirm.

Court of Appeals of Indiana | Memorandum Decision 39A01-1705-CR-1119 | December 8, 2017 Page 1 of 5 Facts and Procedural History [2] On December 21, 2016 at about 1 a.m., Indiana State Police Trooper Garrett

observed a truck fail to stop at a stop sign. Trooper Garrett stopped the truck

and noticed that the driver, identified as Wells, had glossy eyes and smelled of

mouthwash. Garrett had Wells perform field sobriety tests, which he failed.

Wells took a portable breath test and then agreed to take a certified breath test.

Wells was taken to the jail for the certified breath test, but when it came time

for him to provide a breath sample within the allotted time, he failed to do so.

Trooper Garrett considered Wells’ failure to provide a breath sample as a

refusal to submit to the chemical test.

[3] Wells subsequently filed a request to determine the validity of his refusal.

Following the hearing, the trial court determined that Wells’ actions constituted

a refusal to submit to the test. Wells now appeals this decision.

Discussion and Decision [4] Because the trial court denied Wells’ petition, he appeals from a negative

judgment. See G.G.B.W. v. S.W., 80 N.E.3d 264 (Ind. Ct. App. 2017). In such

circumstances, we will reverse the judgment only if it is contrary to law—that

is, where the evidence leads to but one conclusion and the trial court reached

the opposite conclusion. Id. In conducting our review, we consider the

evidence in the light most favorable to the appellee. Id.

[5] By operating a vehicle in Indiana, drivers impliedly consent to submit to a

chemical test. Ind. Code § 9-30-6-1 (1991). If a police officer has probable Court of Appeals of Indiana | Memorandum Decision 39A01-1705-CR-1119 | December 8, 2017 Page 2 of 5 cause to believe a driver is operating a vehicle while intoxicated, the officer

must offer the driver a chemical test. Ind. Code § 9-30-6-2 (1994). Refusal to

submit to the chemical test results in the suspension of driving privileges. Ind.

Code § 9-30-6-9 (2015). A person whose driving privileges have been

suspended in this manner may request a hearing to determine whether he or she

did in fact refuse the chemical test. Ind. Code § 9-30-6-10 (2005). The person

requesting the hearing has the burden of proof by a preponderance of the

evidence, and the court’s order on the issue is a final, appealable judgment. Id.

[6] Here, the trial court held a hearing on Wells’ petition filed pursuant to Section

9-30-6-10. The evidence at the hearing showed that Wells initially agreed to

take a chemical test. When Trooper Garrett and Wells arrived at the jail,

Trooper Garrett began preparing the machine for the test. When the machine’s

display screen instructs “Please blow,” the person has three minutes to perform.

Trooper Garrett testified that he explained the time limit to Wells and that if he

did not take the test it would be a refusal. Yet, when the time period began,

Wells questioned him and argued with him even though he was directed at least

three times to blow into the machine during the three-minute period. Trooper

Garrett described the conversation:

Because he asked me what he tested on the side of the road, and I told him. I said .169. When I told him that, he said, “Well, I already took your test.” I tried to explain to him, no, that’s a preliminary breath test that — you know, this is a certified test. He said, well, he wanted to talk to his lawyer. I explained to him that under Indiana Implied Consent, when you get a driver’s license, you imply that you give consent to take a certified test

Court of Appeals of Indiana | Memorandum Decision 39A01-1705-CR-1119 | December 8, 2017 Page 3 of 5 and that’s not an option. At that point he became even more argumentative saying I was violating his rights to an attorney, and the three-minute time lapse was over . . . . Tr. p. 10. Wells’ counsel asked Garrett if he made any effort to reset the

machine and allow Wells another chance to take the test. The Trooper

responded that, under the approved method of conducting the test, if Wells had

made any effort to take the test, even if he provided an insufficient sample, the

timer would have started over and he would have had a second chance.

However, “if [the person is] being uncooperative and argumentative with [the

officer] about the lawyer and ‘I’ve already taken my test,’ and doesn’t complete

the test within those three minutes, then I tally it up as a refusal based off his

actions not his words.” Id. at 11.

[7] Wells, on the other hand, testified that he and Trooper Garrett maintained “idle

chit-chat” for the duration of the three-minute testing period. Id. at 28. He

testified that he did not ask about rights and calling an attorney until after the

time period ended and the Trooper indicated it was a refusal.

[8] A refusal to submit to a chemical test occurs when the conduct of the driver is

such that a reasonable person in the officer’s position would be justified in

believing the driver was capable of refusal and manifested an unwillingness to

submit to the test. Burnell v. State, 56 N.E.3d 1146 (Ind. 2016). The Burnell

court explained, “[E]ven without saying ‘no’ or ‘I refuse’ a refusal nonetheless

may be established on the basis of conduct alone if the motorist has clearly been

asked to take a test. In short a physical failure to cooperate can amount to a

refusal.” Id. at 1150. Court of Appeals of Indiana | Memorandum Decision 39A01-1705-CR-1119 | December 8, 2017 Page 4 of 5 [9] As Justice Slaughter recently wrote for a unanimous court, “The [Breath Test]

Rule does not require an officer to administer a second test to a subject who

obviously is not cooperating in providing one or more measurable, recordable

breath samples. Officers must—and do—have discretion under the Rule to

make the judgment call that the subject is being uncooperative and thus has

refused the test. An officer needn’t go through the motions to administer a test

to an obviously uncooperative subject. Common sense doesn’t require it, and

neither does the Rule.” Hurley v. State, 75 N.E.3d 1074, 1080 (Ind. 2017).

[10] The record here shows that, although first agreeing to take the test, Wells

refused to follow the officer’s instructions, talked through the three-minute time

period, insisted that he had already taken the test, claimed his rights had been

violated, and was generally uncooperative, justifying a reasonable person in the

officer’s position to believe that he manifested an unwillingness to submit to the

test. Wells has failed to carry his burden of demonstrating the evidence leads to

but one conclusion and the trial court reached an opposite conclusion.

[11] Affirmed.

Riley, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 39A01-1705-CR-1119 | December 8, 2017 Page 5 of 5