Priest v. State

215 N.E.3d 1099

Bryan PRIEST, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 22A-MI-2845

Court of Appeals of Indiana.

Filed July 20, 2023

Attorneys for Appellant: Marc Lopez, Matthew Kroes, The Marc Lopez Law Firm, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, George P. Sherman, Supervising Deputy Attorney General, Sierra A. Murray, Deputy Attorney General, Indianapolis, Indiana

Foley, Judge.

[1] Bryan Priest ("Priest") appeals a judgment for an infraction for operating a commercial vehicle with an alcohol concentration equivalent ("ACE") of greater than 0.04 but less than 0.08.¹ Priest sought to challenge the admissibility of the sole evidentiary basis establishing his ACE. He was initially successful on an interlocutory appeal but failed to exclude evidence (albeit from a different source) of his ACE at the subsequent bench trial. On appeal, Priest argues that the trial court erroneously admitted the evidence for two reasons: (1) it constitutes hearsay; and (2) it does not comply with the Indiana Administrative Code. Both arguments fail, and we therefore affirm.

Facts and Procedural History

[2] On the morning of August 13, 2019, Indiana State Trooper Nathaniel Hampton ("Trooper Hampton") observed a dump truck pull onto State Road 267 in Hendricks County. Trooper Hampton performed a "random inspection" of the vehicle, and, in doing so, smelled alcohol on the breath of the driver: Priest. Tr. Vol. II p. 6. Priest passed a series of field sobriety tests. He was then taken to the Plainfield Police Department for a certified breath test,² and at some point, indicated to the police that he consumed six Coors Light beers the previous night but stopped drinking at approximately 1:00 a.m. Priest was stopped shortly before 8:00 a.m. Based on an ACE of .042, the police issued Priest a traffic infraction ticket ("traffic infraction ticket") for operating a commercial vehicle with an alcohol concentration equivalent of 0.04 but less than 0.08. Indiana Code § 9-24-6.1-6.³

[3] The ensuing infraction was initially litigated in Plainfield Town Court, and—after a trial—the town court entered a judgment against Priest. At a subsequent proceeding, Trooper Hampton testified that he provided copies of the breath test report generated by the breath test instrument ("breath-test ticket") to both parties at the initial trial. Nevertheless, the breath-test ticket was "never admitted into evidence in the Plainfield Town Court ...."⁴ Tr. Vol. II p. 11. On December 8, 2020, Priest exercised his right to appeal the matter to a court of record.⁵

[4] At a hearing on February 10, 2021, the parties disputed the admissibility of the breath-test results as recorded by the traffic infraction ticket. Trooper Hampton did not testify. The transcript of that hearing is not included in the record, but it appears that, once again, the breath-test ticket was not admitted. Rather, the State sought to prove Priest's ACE using only the traffic infraction ticket. The trial court ruled that the traffic infraction ticket was admissible. Priest filed a motion to certify the ruling for an interlocutory appeal, which the trial court granted. We reversed the trial court's ruling:

The only evidence in the record related to Priest's ACE or B.A.C. is the traffic [ticket] itself, and that document does not state who was tested, what test was used, who did the testing, and what the test results were, all of which were in evidence in both Mullins and Cranston . [ ] Rather, the traffic ticket issued to Priest—which was completed and signed by an Indiana State Police Officer who did not appear at the suppression hearing or otherwise testify—stated only: "B.A.C. 0.042." App. at 42. That statement, alone, is clearly hearsay; it is an out-of-court statement offered to prove the truth of the matter asserted. See Evid. R. 801.

Priest v. State , 181 N.E.3d 1046, 1049 (Ind. Ct. App. 2022). We concluded that "the only evidence the State presented—the bald statement in the traffic [ticket] that Priest's "B.A.C." was ‘0.042’—was inadmissible hearsay." Id.

[5] On remand, the trial court conducted a bench trial on November 1, 2022. During the proceedings, the trial court asked: "where is the original ticket now, that's been printed off? That was printed off the machine at the time of the test?" Tr. Vol. II. p. 11. The State responded: "I do not know." Id. With the traffic infraction ticket deemed inadmissible for the purpose of proving Priest's ACE and the breath-test ticket missing and presumed lost, the State turned to the database readout, described as a "re-print" of a "physical copy of the results" of the breath test taken from the database of the "Department of Toxicology." Tr. Vol. II pp. 10–11.

[6] Doctor Dana Bors ("Dr. Bors") of the State Department of Toxicology testified. She is the "breath test program supervisor." Id. at 13. She explained that the document that the State had in hand—the database readout—was not a copy of the original breath-test ticket, but rather a readout of the same data recorded by the breath-test ticket and kept separately in the Department of Toxicology's database. She described the process for generating the database readout as follows:

The [breath test] instruments are set up to download each night, so, our central server will attempt to connect with all of the deployed [breath test] instruments across the state each night in order to download any tests that have been run on them that day. So, if they are able to retrieve those tests from a particular day, then that information would move from the internal memory in the instrument to that central database in our system which is called IntoxNet.

Id. at 17–18. In other words, breath test instruments both generate a breath-test ticket and also transmit the data included on the breath-test ticket (but not a copy of the breath-test ticket itself) to a central database. The data can then be printed out. Dr. Bors described the database readout as "an official record of the certified breath test results" and noted that the records they reflect are created automatically when a breath test is conducted. Id. at 18.

[7] The State sought to admit the database readout as Exhibit 3, pictured here:

[8] Priest argued that the database readout was inadmissible because it constituted hearsay and because it did not conform with the requirements of the Indiana Administrative Code. The trial court rejected the hearsay argument without explanation. With respect to the Administrative Code, the trial court stated as follows:

So, the Court finds as follows: number one (1), the breath test, the original or a copy is not present, there is no signature, so step 10 has not been complied with of the [ ] Indiana Administrative Code 260. However, the tests were performed according [sic], except for the signature, were performed according to Indiana Administrative Code, we had a trooper testify to all the steps. He followed the steps. If we would had [sic] the original ticket, or a, a certified copy, then I would be admitting it because he did not fail to do, comply with all the steps, if the test itself was performed correctly, I'm gonna [sic] find that Exhibit 3 is a reliable report, cannot be altered by humans, these were reliable report [sic], for this particular defendant, [ ]Priest, administered by Trooper Hampton, on a machine that was approved by the Indiana Department of Toxicology as required. The only difference in what Exhibit 3 is and what the original breath test ticket that we see every day in OWI cases, is that it's not signed by the trooper. And, perhaps, I don't [ ] mean to burden the Court of Appeals once again on this case, but perhaps it's a decision that needs to be made and so I am going to admit Exhibit 3.

Tr. Vol. II pp. 27–28. At the conclusion of the proceeding, the trial court found Priest "guilty" and then asked Priest's counsel: "Before I assess any fines and costs, are you going to appeal this?" Id. at 38. This appeal ensued.

Discussion and Decision

[9] We afford a trial court broad discretion in ruling on the admissibility of evidence. Sims v. Pappas , 73 N.E.3d 700, 705 (Ind. 2017). We will disturb the trial court's ruling only where the trial court has abused its discretion. Id. " ‘An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it.’ " Id. (quoting Turner v. State , 953 N.E.2d 1039, 1041 (Ind. 2011) ).

I. Hearsay

[10] Priest first contends that the database readout is hearsay. Hearsay is an out-of-court statement offered in court for purposes of proving the matter asserted in the statement. Ind. Evidence Rule 801. Rule 801(a) defines "statement" as "a person's oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion." Thus, by the plain text of the rule, the statement in question must be made by a person. "Hearsay is not admissible unless it fits within some exception to the hearsay rule." Craig v. State , 630 N.E.2d 207, 209 (Ind. 1994) (citing Miller v. State , 575 N.E.2d 272 (Ind. 1991) ); see also Evid. R. 802 (providing that hearsay is inadmissible); Evid. R. 803, 804 (collecting hearsay exceptions).

[11] The State does not attempt to argue here, however, that the database readout falls within one of the hearsay exceptions; its argument is more fundamental than that. The State argues that the database readout does not constitute hearsay by definition because the statements it contains are automatically generated by a machine, and, thus, do not come from a person. We agree.

[12] Thirteen years ago, we handed down Cranston v. State , 936 N.E.2d 342 (Ind. Ct. App. 2010), a case in which we determined that a breath-test ticket similar to the one produced in this case did not constitute testimonial hearsay for purposes of the Sixth Amendment to the United States Constitution. We first...