Estes v. State

656 N.E.2d 528, 1995 Ind. App. LEXIS 1322, 1995 WL 610887

Opinions

OPINION

BAKER, Judge.

Appellant-defendant Vincent D. Estes contests his conviction for Operating a Vehicle with a Schedule I or II Controlled Substance in the Blood ¹, a Class C misdemeanor.

FACTS

The facts most favorable to the judgment reveal that on November 15, 1994, Howard County Sheriff's Deputy Gregory Hargrove observed a yellow vehicle, driven by Estes, make a sharp turn onto State Road 31 and run off the road. Deputy Hargrove followed the vehicle which was travelling at an erratic rate of speed and repeatedly crossing the centerline of the road. After Deputy Har-grove stopped the vehicle, he detected a strong odor of marijuana emanating from the vehicle and noted that Estes' eyes were glassy and bloodshot. Deputy Hargrove informed Estes of Indiana's Implied Consent Law² and Estes agreed to take a urine test. The results of the test revealed that Estes had marijuana metabolites in his urine.

The State charged Estes with operating a vehicle with a Schedule I or II controlled substance in his blood. Following a bench trial, the court convicted Estes as charged, sentenced him to 60 days imprisonment with 20 days suspended, and placed him on probation.

DISCUSSION AND DECISION

Estes claims that the evidence is insufficient to sustain his conviction because the State failed to present any evidence showing that he had a controlled substance in his blood. In reviewing the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Green v. State (1992), Ind., 587 N.E.2d 1314, 1315. Instead, we consider only the evidence most favorable to the verdict and any reasonable inferences to be drawn therefrom. Id. If an inference reasonably tending to support the verdict may be drawn from the evidence, the conviction will not be set aside. Id.

In Moore v. State (1994), Ind.App., 645 N.E.2d 6, we addressed the exact issue presented in this case. In Moore, we held that although marijuana was detected in the defendant's urine, this was not sufficient to prove that the defendant had marijuana in his blood, thus, we were compelled to reverse the defendant's conviction for having a Schedule I or II controlled substance in the blood. Id. at 8. As in Moore, the State failed to present evidence that Estes had a controlled substance in his blood.³ Suceinetly stated, the positive urine test is insufficient to prove that Estes had marijuana in his blood.⁴

Judgment reversed.

KIRSCH, J., concurs. CHEZEM, J., dissents with separate opinion.

Footnotes

1

. IND.CODE § 9-30-5-1(b).

2

. IND.CODE § 9-30-6-1.

3

. Although we acknowledge the existence of the authorities cited by the dissent which suggest that when marijuana is detected in an individual's urine it is necessarily present in that individual's blood, no such evidence was tendered to the trial court. It is on this point that the evidence fails.

4

. We are not persuaded by the State's attempt to distinguish Moore on the grounds that in the present case there is additional evidence of Estes' impairment. None of the other evidence presented by the State proves that Estes had marijuana in his blood.