Olivia Covington for www.theindianalawyer.com
The Indiana Court of Appeals has overturned a man’s Class A misdemeanor operating while intoxicated conviction after finding the trial court abused its discretion in admonishing the jury to ignore relevant evidence. But the appellate court also left the door open to a possible retrial on a lesser-included offense.
In Heath Poortenga v. State of Indiana, 45A03-1709-CR-2148, Lake County Sheriff’s Department Officer Kevin Fertig decided to initiate a traffic stop at 3 a.m. on July 10, 2016 after observing a vehicle without working headlights and taillights. The driver, Heath Poortenga, began to pull over when Fertig activated his lights, but he did not stop his vehicle for two blocks.
When Poortenga finally stopped, Fertig observed that he was speaking slowly, had glossy eyes and smelled like alcohol. Poortenga admitted he had been drinking, then failed three field sobriety tests. A subsequent chemical breath test at the jail showed Poortenga had an alcohol concentration equivalent of 0.069, so he was arrested.
After the state charged Poortenga with Class A and C misdemeanor operating while intoxicated, his counsel repeatedly noted at trial that the results of the chemical test showed Poortenga tested below the legal limit of an ACE of 0.08, meaning he was not intoxicated at the time of his arrest. The judge, however, admonished the jury to ignore similar statements made during closing arguments, telling jurors “(t)hat is not part of this case.”
Poortenga was found guilty as charged, but the judge dismissed the Class C misdemeanor charge as a lesser-included offense of the Class A misdemeanor. The Indiana Court of Appeals, however, overturned the Class A conviction on Tuesday, with Judge Cale Bradford writing that evidence of a person’s ACE is relevant to proving intoxication.
“In reaching this conclusion, however, we do not intend to suggest that a finding that an individual’s ACE is under the legal limit of 0.08 per se proves that the individual was not intoxicated,” Bradford wrote. “Rather, we merely conclude that such a fact is evidence that may be considered when determining whether an individual was intoxicated.”
Thus, when the judge admonished the jury to ignore evidence of Poortenga’s ACE during closing arguments, she committed reversible error by admonishing the jury to ignore relevant evidence, Bradford wrote. Further, the appellate court concluded there was insufficient evidence to prove Poortenga was operating his vehicle in a manner that endangered others — the second element of a Class A misdemeanor OWI charge — and thus prohibited the state from retrying him on the Class A misdemeanor.
However, the court allowed the state to seek a retrial on the Class C misdemeanor charge because there was sufficient evidence to sustain a finding of intoxication.