Harts v. State

441 N.E.2d 714, 1982 Ind. App. LEXIS 1473
CourtIndiana Court of Appeals
DecidedNovember 10, 1982
Docket3-482A85
StatusPublished
Cited by6 cases

This text of 441 N.E.2d 714 (Harts v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harts v. State, 441 N.E.2d 714, 1982 Ind. App. LEXIS 1473 (Ind. Ct. App. 1982).

Opinions

HOFFMAN, Presiding Judge.

On September 21, 1981, Earl DeWayne Harts was approaching a stoplight at the corner of Broadway and Taylor Street in Fort Wayne. Harts was driving his motorcycle in the westbound lane of Taylor when the light began to turn red. Some distance before the light, Harts abruptly slowed down and veered off the street to the left, entering a parking lot on the corner. Harts proceeded through the parking lot and exited without stopping onto Broadway and headed south in front of the traffic which now had the green light. Unfortunately for Harts the first car in line at the stoplight southbound on Broadway was a patrol car operated by Officer Hayden of the Fort Wayne Police Department.

Officer Hayden pulled Harts over in a parking lot off Broadway. As Officer Hayden was questioning Harts, he observed that Harts’ breath smelled of alcohol, and that he was abusive and argumentative. Harts was requested to take a breath test and was apprised of the consequences of a refusal to take such test pursuant to IC 1971, 9-4-4.5-3 (Burns 1980 Repl.). Harts agreed to take the test, and Officer Hayden placed him in a “cage car” and proceeded to the City-County Building to administer the test.

During the trip downtown Harts stated that he was not going to cooperate in any way. At the City-County Building, Officer Hayden once again offered Harts a breath-alizer test and advised him of the consequences of a refusal to submit to the test. Harts refused the test. A videotape was taken of this discussion with Harts and was introduced into evidence. At this time Officer Roberson, who operated the videotape machine, also asked Harts to submit to the test and advised him of the consequences. Harts again refused.

A hearing on Harts’ refusal to submit to a breathalizer test was had on December 18, 1981, at which time Harts’ driver’s license was suspended for one year. This appeal results.

Appellant raises the following issues on appeal:

[716]*716(1) whether the trial court erred in finding that probable cause existed for the police officer to stop and question appellant on the night in question;
(2) whether the trial court erred in finding that probable cause existed for the police officer to request that appellant submit to a breathalizer test;
(3) whether the trial court erred in finding that appellant’s refusal to submit to a breathalizer test was certified on the proper form;
(4) whether the trial court erred in denying appellant’s motion to dismiss on the ground that the information failed to state the location of the offense charged; and
(5) whether the State improperly or illegally amended the information to reflect the location of the offense after the hearing to suspend appellant’s license.

At the outset it must be noted that appellant filed his motion to correct errors on the sixty-first day following the judgment in his hearing. Having filed his motion to correct errors late, he has failed to comply with Ind.Rules of Procedure, Trial Rule 59(C). Failure to file a timely motion to correct errors preserves no error for review by this Court. Kelsey v. Nagy (1980), Ind.App., 410 N.E.2d 1333; White v. Livengood (1979), Ind.App., 390 N.E.2d 696.

Appellant argues that justice will not be served if we allow a “mere technicality” to prevent us from reviewing this cause. He further argues that at any rate he could avail himself of the post-conviction remedies of Ind.Rules of Procedure, Post-Conviction Rule 2. This contention is mer-itless.

A hearing to determine whether a person refused to submit to a breathalizer test pursuant to Indiana’s Implied Consent Statute, IC 9-4-4.5-3, is a civil hearing. Hatch v. State (1978), Ind.App., 378 N.E.2d 949; Davis v. State (1977), 174 Ind.App. 433, 367 N.E.2d 1163. Thus, P.C.R. 2 is not available to appellant as such rule contemplates an action which is criminal rather than civil in nature. However, cognizant that these issues may arise again at a later date, they shall be addressed herein.

The first issue raised by appellant involves the existence of probable cause for the police officer to stop appellant on the night in question. The Supreme Court of Indiana has fashioned a test for just such a question: “whether the facts known ... at the time he [a police officer] stopped the car were sufficient to warrant a man of reasonable caution in the belief that an investigation was appropriate.” Luckett v. State (1972), 259 Ind. 174, at 180, 284 N.E.2d 738, at 742. The court has imposed a duty on police officers to stop and investigate when they perceive a situation which poses possible hazards to motor vehicle traffic. Miles v. State (1966), 247 Ind. 423, 216 N.E.2d 847; cf. Collett v. State (1975), 167 Ind.App. 185, 338 N.E.2d 286.

In the case at bar the evidence clearly indicates that probable cause did exist. Of-, ficer Hayden witnessed the appellant abruptly slow his motorcycle, veer off the street, and then dart back onto the street without yielding to oncoming traffic. This type of erratic driving is sufficient to warrant a police officer’s investigation including stopping and questioning the perpetrator.

Next, appellant argues that the police officer lacked probable cause to request that appellant submit to a breathalizer test. The existence of probable cause is a question dependent upon the facts in each case. However, this Court has composed a test to determine its existence in such instances: “[wjhether] ‘reasonable grounds’, i.e., facts and circumstances known to the officer which would warrant a prudent officer to believe that the offense in question [driving under the influence] had been committed.” Bowlin v. State (1975), 164 Ind.App. 693, at 694, 330 N.E.2d 353, at 355. Further, IC 9-4-4.5-4(a)(l) includes a list of factors1 [717]*717which may be considered when determining whether probable cause exists to request a person to submit to a breathalizer test.

In the instant case appellant was observed driving erratically. Upon being questioned he became argumentative and belligerent. His breath smelled of alcohol. These are among the factors specifically included in IC 9-4-4.5 — 4(a)(1). Clearly there is sufficient evidence to support a finding of probable cause to request that appellant submit to a breathalizer test. Clark v. State (1978), 175 Ind.App. 391, 372 N.E.2d 185; Davis v. State (1977), 174 Ind.App. 433, 367 N.E.2d 1163.

The third issue raised by appellant concerns the form certifying his refusal to submit to the' breathalizer test.

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Earl D. Harts v. State of Indiana
732 F.2d 95 (Seventh Circuit, 1984)
Harts v. State
441 N.E.2d 714 (Indiana Court of Appeals, 1982)

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441 N.E.2d 714, 1982 Ind. App. LEXIS 1473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harts-v-state-indctapp-1982.