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Tuesday, August 23, 2005

Ind. Decisions - DUI coviction reversed by Court of Appeals

Timothy M. Flanagan v. State of Indiana (8/23/05)

Judge Vaidik concluded:

This case is similar in several respects to Weida v. State, 693 N.E.2d 598 (Ind. Ct. App. 1998), reh’g denied, trans. denied. Weida was arrested for and convicted of operating while intoxicated after he drove his truck into a ditch. Among other things, Weida appealed his conviction on the basis that the State failed to provide evidence that he was driving “while” intoxicated. We rejected his claim of insufficient evidence regarding the temporal element of the crime because the evidence established that Weida had been drinking at a local tavern before driving his truck into the ditch; the officer reported on the scene within five to seven minutes after the accident was reported; the truck was not in the ditch when the officer had driven by one hour earlier; and that a breath test was administered to Weida within three hours of the accident, which indicated a blood alcohol level of .22. We explained that “[u]nder such circumstances, intoxication at the time the person operated the vehicle may be presumed.”

We cannot reach the same conclusion in this case. Deputy McVoy first spotted the vehicle with Flanagan and Kamphulusa standing outside of it around 4:00 p.m. Deputy McVoy testified that he did not know how long the vehicle had been sitting on the side of the roadway before he first encountered it. After arresting Flanagan and returning to the vehicle to inventory and secure it, Deputy McVoy recovered several Budweiser cans in the back floorboard of the vehicle. Flanagan admitted to Deputy McVoy that he had consumed some beer. In contrast to Weida, there was no evidence presented in this case as to when Flanagan consumed alcohol. This is a critical piece of evidence without which the State cannot sustain its burden. This is so because it could be that Flanagan consumed beer after the vehicle broke down, and when the beers were all gone, the men decided to venture to a nearby store to call for assistance. Consequently, the State failed to meet its burden of proving beyond a reasonable doubt that Flanagan operated a vehicle while intoxicated, and his conviction for that offense must be reversed.

Reversed.
SHARPNACK, J., and MAY, J., concur.

Today's Flanigan decision brings to mind this AP story from last month:
Associated Press
Jul. 27, 2005 08:25 AM

PORTAGE, Ind. - Drunk driving can also be drunk pushing. At least to police in Portage, Ind.

Kaylyn Kezy and Melissa Fredenburg both face DUI charges after the car they were pushing crashed into a parked car. Police say the women took turns pushing the non-running car while the other steered.

After the accident, officers say both women tested with a blood-alcohol level more than twice the legal limit.

Prosecutor Adam Burroughs admits the case might be a tough one to prove in court. But he notes the women were in effect operating the vehicle - even though the car wasn't running at the time.

Posted by Marcia Oddi on August 23, 2005 12:44 PM
Posted to Ind. App.Ct. Decisions