The Indiana Court of Appeals declined to find that a Marion Superior court abused its discretion when it admitted the results of a chemical breath test.
In Bernard Short v. State of Indiana, No. 49A02-1105-CR-403, Bernard Short appealed his conviction of Class A misdemeanor operating a vehicle while intoxicated. He was pulled over by police after an officer saw Short’s car make unsafe lane movements and cut off other cars. Lieutenant Richard Kivett performed a certified chemical breath test on Short, which showed he had a blood alcohol concentration of 0.10.
Short tried to suppress the results of the breath test, but the trial court denied it.
On appeal, Short claimed the trial court abused its discretion in admitting the results of the breath test because Kivett’s testimony as to how he administered the test differed from the suppression hearing to the trial. Short argued Kivett didn’t follow the appropriate testing procedures.
Given the appellate court’s standard of review for admissibility of evidence, it couldn’t say that the trial court abused its discretion in admitting the test results.
Short also argued that the trial court erred in rejecting his proposed jury instruction regarding the breath test and when it should not be admissible.
“The proposed instruction tracks the language of Indiana Code Section 9-30-6-5(d) and Ramirez v. State, 928 N.E.2d 214 (Ind. Ct. App. 2010), trans. denied,” wrote Judge Michael Barnes. “However, simply because the language tracks the language from an opinion from this court and a statute does not make it proper for a jury instruction.”
The proposed instruction concerns admissibility of evidence, which is determined by a trial court, and the trial court properly rejected it, wrote Barnes.