FOR PUBLICATION




ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

JOE KEITH LEWIS     KAREN M. FREEMAN-WILSON
Marion, Indiana    Attorney General of Indiana

TIMOTHY W. BEAM
Deputy Attorney General
Indianapolis, Indiana

DARNELL CARTER,         )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 79A02-9910-CR-738
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

Pub. L. No. 33-1997 § 7. Although this amendment was the first reflection that a particular level of alcohol in one’s breath was a per se violation, law enforcement officials had been using a machine which measured alcohol in breath prior to the amendment. Sales, 723 N.E.2d at 418. Therefore, this amendment was intended as an affirmation that breath content could be the basis of prosecution. Id.
After the legislature amended this provision, a debate quickly arose about how its exact language should be interpreted. For example, the trial court in Sales held that the amendment did not reach its goal of allowing prosecutions based upon alcohol readings in a person’s breath alone. Id. The trial court found that a conviction for operating a vehicle with at least .10% of alcohol by weight in grams in 210 liters of a person’s breath based upon a reading of .14 grams could not stand. Id. In fact, after long calculations, the trial court concluded that in order to violate the statute, “the fluid in a person’s veins would have to be 210% alcohol.” Id. at 419.
A panel of this court, on appeal, also concluded that the conviction in Sales could not be affirmed, although we disagreed with the trial court’s interpretation of the statute. See Sales v. State, 714 N.E.2d 1121 (Ind. Ct. App. 1999), aff’d on reh’g by 715 N.E.2d 1009 (Ind. Ct. App. 1999). While we held that on its face, the statute was clear, after engaging in a formula to convert the .14 grams of alcohol into a percentage, we concluded that .14 grams of alcohol per 210 liters of breath would yield only .0667% which is less than the .10% required for conviction. Id. at 1128.
On transfer, the Indiana Supreme Court noted that both efforts of the trial court and of our court failed “to make sense of an inherently ambiguous provision.” Sales, supra, 723 N.E.2d at 419. The court identified that the confusion with the amendment arose because the provision “asks for a calculation of the ‘percent’ of a number of grams (a unit of weight) found in a number of liters (a unit of volume).” Id. The court noted that it is not meaningful to measure what percent a unit of weight is of a unit of volume. The court stated, “one apple is not any ‘percent’ of two oranges as the term is commonly understood.” Id. However, the court also gave credit to a more technical interpretation of the word “percent” which laboratory technicians use as a “shorthand method of referring to the strength of a solution . . . .” Id.
Noting that more than one interpretation of Ind. Code § 9-30-5-1(a) exists, the court concluded that the use of the word “percent” in the statute was ambiguous. Therefore, the court read the provision to give effect to the intent of the legislature in adopting this provision. Id. at 420. The court examined the statute as a whole and concluded that the legislature intended to provide alternative measurements for the same condition. Id. Recognizing that the legislature should have defined the meaning of “percent”, the court resorted to common sense to hold that the legislature intended to compare the amount of grams of alcohol in 210 liters of breath without the use of a percentage. Id. at 420-21. The court reasoned that the legislature was trying to validate the use of breath tests in prosecutions and not change the amount of alcohol in blood or breath required to prosecute. Id. at 421.
Here, Carter claims that the breath results are hearsay. Breath test printouts are hearsay. Mullins v. State, 646 N.E.2d 40, 48 (Ind. 1995); Storrjohann v. State, 651 N.E.2d 294, 295 (Ind. Ct. App. 1995). It is well-settled, however, that evidence of blood alcohol content is admissible under a statutory exception. See Ind. Code § 9-30-6-15 (Burns 1997 & Supp. 2000).
Yet, Carter asserts this hearsay exception does not apply to measurements based upon alcohol in a person’s breath. We disagree. The Sales decision stands for the proposition that regardless of the imperfections in the language of Ind. Code § 9-30-5-1(a), the legislature was trying to validate the use of breath tests in prosecutions. Id. Although the hearsay exception in Ind. Code § 9-30-6-15 stated at the time that “the amount by weight of alcohol that was in the blood of the person charged with the offense . . . is admissible,” the Sales decision clearly holds that a measurement in breath is equally acceptable without any conversion to a measurement in blood. Further, Ind. Code § 9-30-6-15 provided that analysis of the person’s breath is an acceptable method for measuring the amount of alcohol in a person’s blood. The breath test results, therefore, fall within the hearsay exception.
Carter’s arguments that the breath test results are irrelevant and fail to conform with state toxicology guidelines also fail. Both of these contentions focus upon the State’s failure to introduce evidence converting the breath measurement to blood alcohol content in order to better track the exact language of the statute and the toxicology regulations. Again, the Sales decision concluded that the legislature’s intent in adopting Ind. Code § 9-30-5-1(a) was to validate breath test results as an alternative measure of intoxication without requiring other evidence proving blood alcohol content. Further, the Indiana Supreme Court was correct in its conclusions, as the legislature later amended the statute to reflect that it intended to make the breath test result an equal and alternative measure to blood alcohol content. See Pub.L.No.1-2000, § 6. Thus, we conclude that the trial court did not error in admitting Carter’s breath test results.

The endangerment portion of the statutory definition of ‘intoxicated’ does not require that the State prove that any person other than the defendant was actually in the path of the defendant’s vehicle or in the same area; endangerment can be established by showing that the defendant’s condition or driving manner could have endangered another person, so proof that the defendant’s condition renders driving unsafe is sufficient to establish endangerment and endangerment applies to any person, including the public, police and defendant, regardless of proximity.

Record at 77. Carter asserts that this was a mandatory instruction because it told the jury to ignore the evidence which showed that Carter’s performance was not impaired.
    “A mandatory instruction is one which ‘attempt[s] to set up a factual situation directing the jury to a certain result.’” Neuhoff v. State, 708 N.E.2d 889, 892 (Ind. Ct. App. 1999) (quoting Ajabu v. State, 677 N.E.2d 1035, 1039 n.3 (Ind. Ct. App. 1997), trans. denied). Article 1, section 19 of the Indiana Constitution provides “[i]n all criminal cases whatever, the jury shall have the right to determine the law and the facts.” In Pritchard v. State, 248 Ind. 566, 230 N.E.2d 416 (Ind. 1967), the Indiana Supreme Court interpreted Article 1, section 19 to forbid a trial court from invading this constitutional province of the jury by giving an instruction which binds the conscience of the jury to return a guilty verdict if it finds certain facts.
    In the instant case, the jury instruction told the jury that it “may find the defendant guilty.” Record at 77. The use of the word “may” maintains some level of discretion from which the jury is permitted to decide the facts and the law of the case. Additionally, “[j]ury instructions are not to be considered in isolation but as a whole and in reference to each other.” Hollowell v. State, 707 N.E.2d 1014, 1023 (Ind. Ct. App. 1999). Here, the trial court also gave Indiana Pattern Jury Instruction 1.03 which stresses that the jury was the judge of both the law and the facts in the case. While we agree that the instruction on endangerment should have been worded more clearly to reiterate the constitutional province of the jury, we conclude that as a whole, the instructions properly advised the jury.
    Carter finally asserts that the trial court erred in failing to instruct the jury that although the trial court took judicial notice of the Indiana Department of Toxicology Guidelines, it was not required to accept those facts as conclusive. This jury instruction which tells the jury that it may, but is not required, to accept any judicially noticed fact as conclusive is derived from Indiana Evidence Rule 201(g).
The trial court in this case took judicial notice of certain regulations and failed to give an instruction pursuant to Indiana Evidence Rule 201(g). Carter, however, failed to request this instruction and did not object to the trial court’s failure to give the instruction. “A party cannot complain of incomplete or omitted instructions when he failed to tender any instruction on the point of law.” Mitchell v. State, 712 N.E.2d 1050, 1054 (Ind. Ct. App. 1999). Thus, Carter waived the issue. But, Carter contends that the failure to give the instruction resulted in fundamental error. Carter argues that the court’s failure to instruct the jury that it did not have to accept the toxicology guidelines as conclusive confused the jury. The jury’s confusion over whether the formula from the guidelines should be used was displayed by its asking questions about whether the breath test results were measured in grams or in a percentage. Carter challenges that this confusion denied him a fair trial. Because the Sales decision held that results could be reported in a breath or blood test and we have held that the breath test results in this case were admissible, any confusion experienced by the jury regarding the particular formulas employed was harmless.
As a final point, although not raised by the appellant, we conclude sua sponte that both the operating while intoxicated conviction as a class A misdemeanor and the operating while intoxicated conviction with having a previous operating while intoxicated conviction within the past five years as a class D felony may not stand. The class A misdemeanor conviction is subsumed by the enhanced class D felony conviction.
Judgment affirmed in part and reversed in part and remanded to the trial court with instructions to vacate the class A misdemeanor conviction.
SULLIVAN, J., and BAILEY, J., concur.