ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TERESA D. HARPER STEVE CARTER
Bloomington, Indiana Attorney General of Indiana
GRANT H. CARLTON
Deputy Attorney General
COURT OF APPEALS OF INDIANA
BRIAN T. CURLEY, )
vs. ) No. 67A04-0109-CR-392
STATE OF INDIANA, )
APPEAL FROM THE PUTNAM SUPERIOR COURT
The Honorable Robert Lowe, Judge
Cause No. 67D01-9910-CM-761
October 23, 2002
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Appellant-Defendant, Brian Curley (Curley), appeals his conviction of operating a vehicle while intoxicated,
a Class A misdemeanor, Ind. Code § 9-30-5-2.
Curley raises a single issue on appeal, which we restate as follows:
whether the trial court properly granted the States Motion in Limine, which found
that the portable breath tests taken by the passengers in Curleys car were
FACTS AND PROCEDURAL HISTORY
Shortly before midnight on October 14, 1999, Curley, a student at DePauw University
in Greencastle, Indiana, met his friends Mary Ann Potts (Potts) and Karen Prisby
(Prisby) at a local pub. Along with other friends, they shared a
pitcher or two of beer. Curley later estimated that he drank three
small plastic cups of beer. When Curley was ready to leave the
pub, he asked Potts and Prisby if they wanted a ride back to
their sorority house. At about 1:45 a.m. on October 15, 1999, Curley,
Potts, and Prisby got into Curleys vehicle and began to drive to Potts
and Prisbys sorority house.
Officer Eric Streeval observed Curleys vehicle run a stop sign and make an
illegal left-hand turn. Officer Streeval followed Curleys vehicle and pulled it over.
Curley gave Officer Streeval his drivers license, but he could not find
his registration. He told the officer that he had consumed three
cups of beer. Officer Streeval noticed that Curleys eyes were glassy and
bloodshot, and that Curley slurred his speech. He later testified he could
smell alcohol in the car. Officer Streeval administered three field sobriety tests.
Curley failed two of the tests.
Curley refused to take a chemical breath test, saying that his father had
told him not to take any tests if stopped by the police.
Officer Streeval read Curley the implied consent law. When Curley again refused to
take any more tests, Officer Streeval handcuffed and arrested him. Officer Streeval
administered breath tests to Potts and Prisby. Both women passed the test
and left the scene.
See footnote Subsequently, on October 15, 1999, the State filed
an information charging Curley with operating a motor vehicle while intoxicated.
On February 21, 2000, the State filed a Motion to Exclude Testimony of
Defendants Witnesses or in the Alternative Motion to Depose Defendants Witnesses at Defendants
Expense. On the same day, the trial court denied the motion to
exclude testimony, but found that the State could depose or speak to Curleys
On February 23, 2000, the State filed a Motion in Limine requesting that
the trial court order Curley, his counsel, or any witness to refrain from
mentioning or questioning about, in the presence of the jury, the results of
or the actual taking of a portable breathalyzer test due to the fact
that the results of such a test have yet to be proven scientifically
reliable. On the same day, the trial court granted the States motion
in limine to exclude the results of Potts and Prisbys portable breath tests.
Subsequently, a jury trial was held. The jury returned a verdict
of guilty on Count I, operating a motor vehicle while intoxicated. The
trial court then imposed a one-year sentence, with all but ten days suspended
Curley now appeals.
DISCUSSION AND DECISION
I. Standard of Review
The admissibility of evidence is within the sound discretion of the trial court.
Goodson v. State, 747 N.E.2d 1181, 1183 (Ind. Ct. App. 2001).
We will only reverse a trial courts decision on the admissibility of evidence
upon a showing of an abuse of that discretion. Johnson v. State,
722 N.E.2d 382, 383 (Ind. Ct. App. 2001). An abuse of discretion
may occur if the trial courts decision is clearly against the logic and
effect of the facts and circumstances before the court, or if the court
has misinterpreted the law. Smith v. State, 751 N.E.2d 280, 281 (Ind.
Ct. App. 2001), trans. denied.
II. Ind. Code § 9-30-6-5
Curley argues that the trial court erred when it excluded the results of
the portable breathalyzer tests administered by Officer Streeval at the scene. Specifically,
Curley claims that the results of the portable breathalyzer tests were admissible because
the tests were administered to his witnesses, Potts and Prisby, and not to
I.C. § 9-30-6-5 prohibits the admission of results of chemical tests that involve
an analysis of a persons breath unless the test equipment has been approved
by the Department of Toxicology. Specifically, I.C. § 9-30-6-5(d) provides:
Results of chemical tests that involve an analysis of a person's breath are
not admissible in a proceeding under this chapter, IC 9-30-5, IC 9-30-9, or
IC 9-30-15 if:
(1) the test operator;
(2) the test equipment;
(3) the chemicals used in the test, if any; or
(4) the techniques used in the test;
have not been approved in accordance with the rules adopted under [Ind. Code
Additionally, machine breath test results are hearsay. Mullins v. State, 646 N.E.2d
40, 48 (Ind. 1995). Thus, the party moving for admission must establish
a foundation for admission of such results. Id. III. Relevancy of the Evidence
A recent decision indicates the statutory restriction on admissibility of breath test evidence
applies to the same extent regardless of whether it is offered by the
prosecution or by the defense as exculpatory evidence. In Smith v. State,
751 N.E.2d 280, 283 (Ind. Ct. App. 2001), the defendant Smith sought to
admit breath test results showing his blood alcohol level was .09. We
noted that as the party offering the test results, Smith bore the burden
of laying the foundation for admitting those results into evidence. Id.
Because Smith offered no evidence to demonstrate that the test device had been
approved by the Department of Toxicology, we found the results of that test
were inadmissible at trial and were, therefore, properly excluded. Id.
In the present case, Curley claims that the statutory language should control only
when a defendants conduct is in issue, and should not prohibit the admission
of the portable breathalyzer test results of persons other than a defendant.
He further maintains that the concerns reflected in I.C. § 9-60-6-5(d) about the
reliability of the test are not so great here, where the test is
not being offered to prove an essential element of the offense but rather
. . . to support the defendants or a witness testimony. (Br.
of Defendant-Appellant at 8). Conversely, the State asserts that the statutory language
makes no distinctions between applicability for any person. (Br. of the Appellee
at 3.) We find that neither the State nor Curley offers authority
indicating whether the statute has the effect of making inadmissible the result of
a breath test given to a witness rather than a defendant. However,
Curley was the party moving for admission of specific evidence. As the
party offering the test results, Curley bore the burden of laying the foundation
for admitting the results of the portable breathalyzer tests of Potts and Prisby
into evidence. See Smith, 751 N.E.2d at 283. Because Curley offered
no evidence to demonstrate that the portable breathalyzer tests given to Potts and
Prisby had been approved by the Department of Toxicology, we find that the
results of these tests were inadmissible at trial. Id. Thus, we
conclude that the trial court did not err when it excluded the portable
breathalyzer test results at Curleys trial.
Next, Curley contends that the portable breathalyzer tests of Potts and Prisby would
have assisted the jury in determining whether [Curley] was intoxicated because the point
of the breath test results was not what any persons [blood alcohol content]
BAC was but rather [whether Curleys] was less than his two witnesses [BAC].
(Br. of Defendant-Appellant at 12.) Specifically, he claims that the portable
breathalyzer test results of the witnesses who had more to drink than did
Curley were relevant because the results would have shown that even though he
refused a breath test, he was not intoxicated.
On the other hand, the State maintains that the evidence (i.e., the results
of Potts and Prisbys portable breathalyzer tests) was properly excluded because it was
irrelevant to the issue of Curleys intoxication. Evidence is relevant if it
has any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it
would be without the evidence. Ind. Evidence Rule 401 (emphasis supplied); Guadian
v. State, 743 N.E2d 1251, 1254 (Ind. Ct. App. 2001), trans. denied.
Here, Curley argues that the evidentiary rules should have been relaxed to allow
the admission of the statutorily prohibited evidence. He cites to recent Indiana
decisions that have held certain exculpatory evidence must be admitted when the evidence
is essential to meaningful confrontation, even if the evidence otherwise would run afoul
of the provisions of certain statutes. For example, I.C. § 35-37-4-4 provides
generally that in prosecutions for certain sex crimes, evidence of the victim's past
sexual conduct may not be admitted, nor may reference be made to this
evidence in the presence of the jury. However, in Davis v. State,
749 N.E.2d 552, 555-56 (Ind. Ct. App. 2001), trans. denied, we held that
the exclusion of evidence governed by rape shield statute of child victims sexual
activity, would unfairly bolster the victims testimony and was exculpatory because it indicated
there could have been another source of the acts of molestation.
Curley also argues that the effect of excluding the results of the portable
breathalyzer tests of Potts and Prisby violated his right to the compulsory process
as he was unable to bring forward evidence that would have been favorable
to him. Therefore, Curley claims that his constitutional right to present a
defense was abridged. In support of his argument, Curley cites Rock
v. Arkansas, 483 U.S. 44, 107 S. Ct. 1038 (1987), where the Supreme
Court indicated hearsay rules should sometimes be relaxed when they prevent the admission
of exculpatory evidence. The Rock case addressed an evidentiary rule prohibiting the
admission of hypnotically refreshed testimony. The Court relied on Chambers v. Mississippi,
410 U.S. 284, 302, 93 S. Ct. 1038, 1056 (1973), where it invalidated
a states hearsay rule on the ground that it abridged the defendants right
to present witnesses in his own defense. There, Chambers had been tried
for a murder to which another person had confessed in the presence of
acquaintances. The States hearsay rule, coupled with a voucher rule that did
not allow the defendant to cross-examine the confessed murderer directly, prevented Chambers from
introducing testimony concerning these confessions, which were critical to his defense. The
Supreme Court reversed the conviction, holding that when a states rule of evidence
conflicts with the right to present witnesses, the rule may not be applied
mechanistically to defeat the ends of justice, but must meet the fundamental standards
of due process. Id at 302. The state in Chambers had
not demonstrated that the hearsay testimony in that case, which bore assurances of
trustworthiness including corroboration by other evidence, would be unreliable; thus, the defendant should
have been able to introduce the exculpatory testimony. Id.
However, we find that the admission of the results of the portable breathalyzer
tests of Potts and Prisby could not prove whether Curley was intoxicated.
This evidence is irrelevant because it does not have any tendency to make
the existence of any fact that is of consequence to the determination of
the action more or less probable than it would be without the evidence.
See Evid. R. 401; Guadian, 743 N.E2d at 1254. In the
instant case, Curley, his counsel, and any testifying witnesses were prevented from mentioning
or questioning about, in the presence of the jury, the results of or
the actual taking of the portable breathalyzer test because the results of such
a test have yet to be proven scientifically reliable. Curley was not
prevented from questioning witnesses, and Potts and Prisby were not prevented from testifying
about the night in question. Therefore, the trial court did not abridge
Curleys right to present relevant evidence and/or witnesses in his own defense.
See Chambers, 410 U.S. at 302.
Furthermore, we note that evidence of poor driving skills, failed field sobriety tests,
difficulty with physical dexterity, and the smell of alcohol upon a driver is
sufficient to sustain a conviction of operating a motor vehicle while intoxicated.
Mabbitt v. State, 703 N.E.2d 698, 701 (Ind. Ct. App. 1998). The
evidence shows that Curley ran a stop sign and made an illegal left
turn. He failed two of the three sobriety field tests that Officer
Streeval administered. Officer Streeval testified that Curleys speech was slurred and that
Curley had glassy and bloodshot eyes. Even if the trial court had
admitted the results of the portable breathalyzer tests of Potts and Prisby, this
would not have changed the evidence of Curleys intoxication that formed the basis
of his conviction. Clearly, the evidence on the record is sufficient to
sustain a conviction for operating a vehicle while intoxicated. Accordingly, we find
that the trial court properly granted the States Motion in Limine, which excluded
the results of the portable breathalyzer tests administered to Potts and Prisby.
Based on the foregoing, we conclude that the trial court properly granted the
States Motion in Limine.
BROOK, C.J., and VAIDIK, J., concur.
Oral argument was held in this case on September 6, 2002 at
Northwood High School in Nappanee, Indiana.
Footnote: Prisbys test showed a blood alcohol level of .05 percent. Potts
test showed a blood alcohol level of .08 percent.