COA rejects woman’s claim that accident occurred outside chemical test period

A woman who drove drunk into a mobile home causing significant damage lost her appeal Wednesday after arguing the state’s blood draw occurred outside the three-hour window under statute and thus did not prove her blood alcohol level at the time of the accident.

Elberta N. Jackson was convicted of Class A misdemeanors operating a vehicle with an alcohol concentration equivalent to at least 0.15 and resisting law enforcement, as well as Class B misdemeanor disorderly conduct following a Jan. 19, 2016, car crash. Marion police officers were dispatched to a trailer court at 1:10 a.m. on the report of a car striking a residence. They found Jackson’s car crashed into an occupied residence, although no one inside was hurt. Jackson was screaming and swearing and acting belligerently toward the officers. One officer smelled alcohol on her breath and tried to get her to submit to a breath test. Jackson refused and after a struggle, the officer able to place her in handcuffs.

Jackson’s blood was drawn at 3:14 a.m. after officers obtained a warrant.

In her appeal, Jackson insisted that the state failed to prove her alcohol concentration equivalent was at least 0.15 at the time she operated her vehicle because the state offered no evidence that the blood draw was completed within the requisite three hours under statute. She maintained that the crash occurred about an hour before police arrived.

“It is undisputed that Jackson had been operating the vehicle at the time of the accident, and the police officers were dispatched at 1:10 a.m. It defies all notions of reasonableness to hypothesize — given the presence of the homeowners, the severity of the damage done to their trailer and Jackson’s vehicle, and the potentially serious injuries of Jackson’s passenger — that nearly an hour would have passed between the time of the accident and the summoning of the police (as the accident must have occurred no later than 12:14 a.m. in order for the statutory presumption to apply),” Judge Patricia Riley wrote.

Jackson also challenged the two-year suspension of her driver’s license, claiming her due process rights were violated because she didn’t receive notice from the state that her license could be revoked.

But under statute, a person who refuses to submit to a chemical test is informed by the officer that refusal will result in the suspension of the person’s driving privileges, Riley pointed out. Once the court determines probable cause the person violated the OWI statute, the clerk of the court forwards a copy of the probable cause affidavit to the Bureau of Motor Vehicles.

Based on a prior conviction, the BMV was obligated to suspend Jackson’s driver’s license for two years, and Jackson did not ask for judicial review of the suspension.

The case is Elberta N. Jackson v. State of Indiana, 27A02-1607-CR-1717.

This article was first published by The Indiana Lawyer.

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