COA: Despite driver’s admission to smoking meth, state failed to prove OWI

A man who told Indiana State Police that he had smoked methamphetamine hours before he was pulled over has had his operating while intoxicated conviction reversed.

On Wednesday, the Court of Appeals of Indiana reversed for the defendant in Jeffrey L. Awbrey v. State of Indiana, 21A-CR-2867.

In December 2018, ISP trooper Wyatt Phillips was conducting a traffic stop at a gas station when Jeffrey Awbrey drove past and waved at him. Phillips ran Awbrey’s license plate number and discovered his driver’s license had been suspended.

Phillips then initiated a traffic stop, and when he approached the vehicle, Awbrey asked that the trooper “not take [Awbrey] to jail.” Awbrey gave consent for a search of the vehicle, which revealed a glass pipe with crystalline residue and a small digital scale. The pipe was not warm, and no smoke was in the vehicle.

But Awbrey admitted to Phillips that he had smoked meth earlier in the day prior to work, which Phillips interpreted as Awbrey smoking “early in the morning.” Awbrey was then transported to the hospital after he consented to a blood draw.

In November 2021, the state charged Awbrey with Level 6 felony possession of meth, Class C misdemeanor operating a vehicle while intoxicated, Class C misdemeanor possession of paraphernalia and driving while suspended as a Class A infraction.

During trial, when Awbrey, pro se, asked if he seemed impaired while driving, Phillips said, “I am trained to develop probable cause for alcohol impairment. I’m not trained to develop probable cause for any other kind of impairment. But I am trained to recognize impairment. But I cannot say whether or not somebody’s impaired at any time. That’s why there always has to [sic] lead to a blood draw or a breath test.”

Further, Philips said Awbrey “wasn’t driving reckless, or super-fast, or anything like that,” and he pulled Awbrey over for his suspended license and not “driving behavior.” Phillips also said Awbrey passed a field sobriety test.

Christina Beymer, assistant director of the Indiana State Department of Toxicology, testified that she “would expect” to see impairment with the level of meth in Awbrey’s blood, but she did not actually opine that Awbrey was impaired. Beymer also explained that the field sobriety test Awbrey passed would not demonstrate intoxication via meth because the test reveals the presence of a depressant, not a stimulant.

The jury found Awbrey guilty as charged, and Awbrey pleaded guilty to two enhancements. The Morgan Superior Court then sentenced him to an aggregate of 700 days in the Morgan County Jail.

On appeal, Awbrey contested only his conviction of operating a vehicle while intoxicated, arguing the state didn’t present sufficient evidence. The COA agreed.

“… (F)or purposes of Awbrey’s operating while intoxicated conviction, the State was required to prove that Awbrey was ‘under the influence of [an intoxicant] such that there [was] an impaired condition of thought and action and the loss of normal control of a person’s faculties … .’ Chissell v. State, 705 N.e.2d 501, 505 (Ind. Ct. App. 1999) … ,” Judge Elizabeth Tavitas wrote. “… We must conclude that the State failed to present sufficient evidence to establish impairment.

“… The State argues that: ‘Awbrey’s prior use of methamphetamine earlier that day supported the inference that he was impaired.’ We disagree,” Tavitas continued. “In the context of operating while intoxicated under Indiana Code Section 9-13-2-86(1), where alcohol is the intoxicant, we have held that ‘[t]he State is required to establish the defendant was impaired, regardless of his blood alcohol content.’ Fields v. State, 888 N.E.2d 304, 307 (Ind. Ct. App. 2008) … .

“… In other words, we have held that the sheer amount of the intoxicant consumed, standing alone, is insufficient to support a finding of impairment. We are aware of no case, and the State cites none, to the contrary.”

Further, Tavitas wrote that the state didn’t explain how the evidence reasonably gave rise to an inference of impairment given that Awbrey was pulled over for driving with a suspended license. She also noted that Beymer’s testimony didn’t support the conviction.

“… (T)he State points to the testimony of the toxicologist: that she would expect impairment, given the levels of methamphetamine in Awbrey’s blood,” Tavitas wrote. “But the toxicologist did not actually opine that Awbrey was impaired. And testimony that someone would theoretically be impaired is not the same as testimony that somebody is impaired.

“The State cites no case in which the level of an intoxicant in the defendant’s blood, standing alone, is sufficient to establish impairment, though that fact would be sufficient if the State had charged Awbrey under Indiana Code Section 9-30-5-1,” the judge continued.

“… Here, Awbrey’s admitted use of methamphetamine supports a finding of intoxication in a general sense, but the State’s burden was to prove intoxication to the degree that Awbrey was impaired at the time he was stopped. … The State provided insufficient evidence to establish that Awbrey was impaired beyond a reasonable doubt. The evidence, therefore, is insufficient to support the requisite finding of intoxication, and we are duty-bound to reverse Awbrey’s conviction for operating a vehicle while intoxicated.”

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