State v. Johnson , 503 N.E.2d 431 ( 1987 )

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

The State appeals the judgment of the trial court suppressing the results of a breathalyzer test given to the defendant, Keith L. Johnson, pursuant to the Indiana Implied Consent Law, Indiana Code section 9-11-4-1 et seq. We reverse and remand for trial.

FACTS

On September 11, 1984, Trooper Gary Matherly observed Johnson driving 70 miles per hour in a 55 mile per hour zone. Matherly stopped Johnson's car, asked to see Johnson's driver's license and registration, and requested that Johnson accompany the officer to his squad car, where he cited him for speeding. In the squad car, Matherly noticed a moderate odor of alcohol emanating from Johnson.

Matherly testified that Johnson had not been driving erratically, and he noticed nothing unusual about Johnson's speech or ability to walk. At Matherly's request, Johnson submitted to the testing of his breath by means of an alco-sensor device, which indicated that his blood-aleohol content (BAC) was .15%. Matherly then advised Johnson of the implied consent law and offered him a breathalyzer test, to which Johnson consented. The breathalyzer test indicated a BAC of .13%. Johnson was arrested and charged with operating a vehicle with .10% or more BAC, a class C misdemeanor, contrary to Indiana Code section 9-11-2-1, and with a second offense at operating a vehicle while intoxicated, a class D felony, Indiana Code section 9-11-2-2 and 9-11-2-8.

At the hearing on Johnson's pre-trial motion to suppress, the trial court sustained Johnson's objection to admission of the alco-sensor results. The court then granted Johnson's motion to suppress the breathalyzer results. Because the ultimate effect of the order is to preclude further prosecution of Johnson, the State appeals the trial court's order under the authority of Indiana Code section 35-88-4-2(5).

ISSUES

The questions presented for our determination are (1) whether the court erred in excluding the results of the alco-sensor test, and (2) whether the court erred in suppressing the results of the breathalyzer test.

DISCUSSION AND DECISION

Officer Matherly clearly had probable cause to suspect Johnson was driving while intoxicated or with a (BAC) of .10% or more. There is no question of the legality of the stopping of Johnson. The officer observed Johnson driving 70 miles per hour in a 55 mile per hour zone. Having observed a clear traffic violation, the officer's right to stop Johnson cannot be questioned. Castle v. State (1985), Ind.App., 476 N.E.2d 522 (police officer had a right and duty to stop vehicle after driver made an illegal turn). When the officer stopped the speeding car, he noticed an odor of alcohol emanating from Johnson. In our view, this alone was sufficient to give the officer probable cause to believe Johnson had been driving while intoxicated and to justify offering the breathalyzer test pursuant to the Indiana consent law. See Hughes v. State (1985), Ind.App., 481 N.E.2d 135 (defendant observed driving 87 m.p.h. in 55 m.p.h. zone, and had odor of alcohol about him; no evidence of any other erratic driving and defendant's speech was not impaired and he passed manual dexterity tests. Breathalyzer test showed .115% BAC. Evidence held sufficient to sustain conviction).

Although the precise question here has not been dealt with by Indiana courts, decisions from our sister states are instructive. In Curry v. Goldberg (1981), Mo.App., 614 S.W.2d 318, the arresting officer stopped Curry for making a turn without signalling in violation of statute. The officer observed Curry's speech was slurred, his reactions were slow, his eyes were bloodshot, an open bottle of whiskey was in the car, and he smelled of alcohol. The Missouri court held the officer had reasonable grounds to believe Curry was driving while intoxicated, and observed that "[the fact that these objective symptoms were not observed until Curry was stopped for a traffic violation is inconsequential." 614 S.W.2d at 320.

In addition to the officer's personal observation concerning the odor of alcohol, he asked Johnson if he had been drinking and Johnson admitted having consumed three drinks. Johnson then consented to the alco-sensor test which indicated a BAC of .15%. It was at this point that the officer offered the breathalyzer. The odor of alcohol plus the alco-sensor test clearly established probable cause. .The trial court excluded the alco-sensor test, on the ground it was inadmissible because it was not approved by the department of toxicology, and, therefore, not admissible at trial. We agree that the alco-sensor test would not have been admissible at trial. However, it was not offered at trial. It was offered at the suppression hearing to show probable cause. Probable cause can be established by evidence which would not be admissible at trial. Layman v. State (1980), Ind.App., 407 N.E.2d 259, trans. denied. Further, we see no difference in the officer's use of the alco-sensor test than in the use of manual dexterity tests such as the finger-to-nose test, to determine intoxication, the use of which tests are unquestioned. Thus, the trial court erred in not admitting the alco-sensor test to establish probable cause.

Probable cause having been established, the officer was justified in offering the breathalyzer test, and it was error to suppress the results. Further, Johnson consented to the breathalyzer. He may not now object to the results of the test being used against him. State v. Hummel (1977), 178 Ind.App. 170, 363 N.E.2d 227, trans. denied, cert. denied U.S. 905, 98 S.Ct. 2236, 56 L.Ed.2d 403.

We do not mean to imply that, other than in a lawful roadblock, see State v. Garcia (1986), Ind., 500 N.E.2d 158, a police officer may stop a vehicle the driver of which has done nothing wrong, and, if he then observes indications of drinking, base probable cause upon such observation. But, where, as here, the officer stops the vehicle for a traffic offense which he observed, and then, following the lawful stop and incident thereto, he observes indications of drinking on the part of the driver, probable cause to believe the driver was driving while intoxicated is established, and the officer is justified in offering a breathalyzer test. Further, the breathalyzer test results are admissible at trial.

In this case, because probable cause was established, and additionally because Johnson consented to the breathalyzer, it was error to suppress the breathalyzer results for use at trial. For reasons previously stated, it also was error to exclude the alco-sensor test results at the suppression hearing.

Judgment reversed and cause remanded for trial.

NEAL, J., concurs. ROBERTSON, J., dissents with separate opinion.