Ramirez-Vera v. State

144 N.E.3d 735

Jackelin Andrea RAMIREZ-VERA, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 19A-CR-1368

Court of Appeals of Indiana.

FILED March 17, 2020

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

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Stephen Creason, Deputy Attorney General, Indianapolis, Indiana

Najam, Judge.

Statement of the Case

[1] Jackelin Andrea Ramirez-Vera¹ appeals her conviction for operating a vehicle with an alcohol concentration equivalent to at least 0.15 gram of alcohol per 100 milliliters of blood, as a Class A misdemeanor, following a bench trial. Ramirez presents three issues for our review, which we revise and restate as follows:

1. Whether the State presented sufficient evidence to demonstrate that she was operating a vehicle when officers found her intoxicated in her parked car.

2. Whether the State laid an adequate foundation for the admission of a chemical blood test.

3. Whether the trial court erred when it admitted into evidence her pre- Miranda statements.

[2] We affirm.

Facts and Procedural History²

[3] On the evening of August 12, 2017, Amanda Matern went to a bar. While at the bar, Matern met Ramirez, and the two "wound up leaving together" in Ramirez' vehicle. Tr. at 9. Ramirez drove her car that night, and she drove the "entire time." Id. at 11. Sometime between 9:00 and 10:00 p.m., Nick Templeton observed Ramirez' car "on the travel portion of the road" at "a stop sign" of a county road "getting ready to turn" onto Indiana State Road 3. Id. at 16, 17. Ramirez' vehicle was running and the brake lights were on, but the headlights were off. As Templeton approached the vehicle, he saw people in the car who appeared to be "passed out." Id. at 17. Templeton also noticed that an individual in the car had her right "leg hiked up and the left leg was down ... on the brake[.]" Id. Templeton called 9-1-1.

[4] Deputy Garrett Hoppock with the Jennings County Sheriff's Office responded to the call and arrived at the intersection at 10:53 p.m. When Deputy Hoppock arrived, he observed Ramirez' vehicle to be on the county road "just west of State Road 3." Id. at 21. Deputy Hoppock noticed that Ramirez' vehicle was running but that the headlights were off. Deputy Hoppock then saw a broken beer bottle on the ground near the driver's side door.

[5] As Deputy Hoppock approached the vehicle, he initially did not see anyone inside. However, as he got closer, he observed two females in "the front passenger seat," which had been "laid back," and no one in the driver's seat. Id. at 27. Deputy Hoppock then saw a pair of shoes and a pair of pants on the floor in front of the driver's seat, and he noticed that Ramirez was "in a state of undress" on top of Matern in the front passenger seat. Id. Deputy Hoppock also observed an empty six-pack of beer in the back seat that was the same brand as the bottle he had found on the ground.

[6] Deputy Hoppock knocked on the passenger's side window and woke Ramirez and Matern up. Once they were awake, Ramirez "crawled over" to the driver's seat and put her pants and shoes on. Id. at 29. She then opened the window, and Deputy Hoppock detected an odor of an "alcoholic beverage" emitting from the vehicle. Id. at 30. When Deputy Hoppock asked Ramirez questions, her answers were "pretty short." Id. And Deputy Hoppock noticed that Ramirez "fumbled" with her identification card. Id.

[7] Ramirez then exited the car. However, she had to "grab on to the door and pull herself from the vehicle," which is an action Deputy Hoppock "[n]ormally" sees in "somebody that is impaired." Id. at 31. At that point, Deputy Hoppock administered a series of field sobriety tests to Ramirez. Ramirez agreed to take two of the tests. The results of the horizontal gaze nystagmus test demonstrated that Ramirez was "impaired." Id. at 39. And the results of the vertical gaze nystagmus test indicated that there was "a high dose of alcohol" present in her system. Id. at 41. Deputy Hoppock asked Ramirez to perform two additional field sobriety tests, but she "refused." Id.

[8] Deputy Hoppock read Ramirez the implied consent advisement, and Ramirez agreed to take a certified blood test. At that point, Deputy Hoppock transported Ramirez to a hospital. Once at the hospital, Virgil Mullikin drew Ramirez' blood at 12:25 a.m. on August 13. The results of that test demonstrated that Ramirez had a blood alcohol concentration of 0.229 gram of alcohol per 100 milliliters of blood.

[9] The State charged Ramirez with one count of operating a vehicle with an alcohol concentration equivalent to at least 0.15 gram of alcohol per 100 milliliters of blood, as a Class A misdemeanor (Count I); one count of operating a vehicle while intoxicated, as a Class C misdemeanor (Count II); and one count of operating a motor vehicle without ever receiving a license, as a Class C misdemeanor (Count III).

[10] The trial court held a bench trial on May 23, 2019. At the start of the bench trial, the State moved to dismiss Count III, which motion the trial court granted. The State then called Deputy Hoppock. Deputy Hoppock testified that Ramirez had told him "that she was driving earlier." Id. at 31. At that point, Ramirez objected to the admission of her statements to Deputy Hoppock because those statements were made before Deputy Hoppock advised her of her Miranda rights. The trial court determined that Deputy Hoppock was "entitled" to ask Ramirez questions at that stage of his investigation and overruled her objection. Id. at 34. Deputy Hoppock then testified that Ramirez told him that she had been driving "earlier," but that she had "drank too much, so she pulled over to sleep it off." Id. at 35.

[11] The State then called Mullikin as a witness. Mullikin testified that, when he drew Ramirez' blood, he followed a specific protocol. He then testified that the protocol he had followed was "approved by all who reviewed it," and that "usually" one of the people who reviews it is a physician. Id. at 53. And he testified that the pathologist, who is a physician, reviews "all policies" that go into place. Id. at 54.

[12] Ramirez objected to any evidence of Ramirez' blood draw on the ground that the State had failed to lay an adequate foundation, namely, that the State had failed to establish that the protocol followed by Mullikin had been approved by a physician. The State responded and asserted that evidence of the blood draw was admissible because Mullikin testified that a pathologist, a physician, had reviewed the policy. The trial court overruled Ramirez' motion.

[13] Cheryl Anderson, a forensic scientist with the Indiana Department of Toxicology, then testified about the results of Ramirez' blood test. During Anderson's testimony, the State moved to admit the results of that test. Ramirez stated that she had "[n]o objections" to the admission of that evidence. Id. at 71. The court admitted the results of the blood test, which showed that Ramirez' blood alcohol content was 0.229 gram per 100 milliliters of blood.

[14] At the conclusion of the bench trial, the court found Ramirez guilty of Counts I and II. The court then vacated Count II and sentenced her to 365 days on Count I, with all but time served suspended to probation. This appeal ensued.

Discussion and Decision

Issue One: Sufficiency of the Evidence

[15] Ramirez first asserts that the State failed to present sufficient evidence to support her conviction on Count I.³ Our standard of review on a claim of insufficient evidence is well settled:

For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

Love v. State , 73 N.E.3d 693, 696 (Ind. 2017).

[16] In order to convict Ramirez, the State was required to prove that she had operated a vehicle with an alcohol concentration equivalent to at least 0.15 gram of alcohol per 100 milliliters of blood. Ind. Code § 9-30-5-1(b) (2019). Further, Indiana Code Section 9-30-6-15 provides:

At any proceeding concerning an offense under IC 9-30-5 ..., evidence of the alcohol concentration that was in the blood of the person charged with the offense:

(1) at the time of the alleged violation; or

(2) within the time allowed for testing under section 2 of this chapter;

as shown by an analysis of the person's breath, blood, urine, or other bodily substance is admissible.

I.C. § 9-30-6-15(a). Section 2 provides that a chemical blood test "must be administered within three (3) hours after the law enforcement officer had probable cause to believe the person committed an offense under IC 9-30-5[.]" I.C. § 9-30-6-2(c). And, if the evidence establishes that a chemical test was taken "within the period allowed for testing under section two" and that the person had an illegal blood alcohol concentration, the trier of fact "shall presume" that the person had an illegal alcohol concentration at the time the person operated the vehicle. I.C. § 9-30-6-15(b). However, that presumption is rebuttable. Id.

[17] On appeal, Ramirez argues that the State could only rely on the presumption that she had operated her vehicle with an alcohol concentration equivalent to more than 0.15 if it could prove that she had operated her vehicle at some point after 9:25 p.m., three hours before the blood test at 12:25 a.m., which she contends the State failed to do. Specifically, she asserts that the evidence demonstrates that she had stopped operating her car sometime before Templeton found her, which was as early as 9:00 p.m. We cannot agree.

[18] In Mordacq v. State , 585...