ATTORNEY FOR APPELLANT
Nicholas C. Deets
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Janet Brown Mallett
Deputy Attorney General
INDIANA PROSECUTING ATTORNEYS COUNCIL
Stephen J. Johnson
Robert J. Guy
SUPREME COURT OF INDIANA
MARK A. SALES, )
) Indiana Supreme Court
Appellant (Defendant Below), ) Cause No. 08S02-0001-CR-29
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 08A02-9806-CR-515
Appellee (Plaintiff Below). )
APPEAL FROM THE CARROLL SUPERIOR COURT
The Honorable Jeffrey R. Smith, Judge
Cause No. 08D01-9801-CM-22
ON PETITION TO TRANSFER
February 7, 2000
This case deals with the interpretation of a 1997 amendment to Indiana
Code § 9-30-5-1(a) which criminalized operating a vehicle with at least ten-hundreths percent
(0.10%) of alcohol by weight in grams in: . . . two hundred
ten (210) liters of the persons breath. We hold that prosecutions under
this section, which has since been amended to eliminate any ambiguity, may proceed
upon proof of operating a vehicle with .10 grams of alcohol in 210
liters of the persons breath.
Factual and Procedural Background
On January 10, 1998, Mark Sales was stopped by police for failing to
yield the right-of-way. He was later administered a breath test that showed
.14 grams of alcohol per 210 liters of breath. Sales was charged
with a violation of section (2) of Indiana Code 9-30-5, Operating a Vehicle
While Intoxicated. The State later added Count II, operating a vehicle with
.10 percent of alcohol in blood in violation of section 1(a)(1), and Count
III, operating a vehicle with .10 percent alcohol in breath in violation of
section 1(a)(2). Sales moved to suppress the results of the breath test,
and the trial court denied the motion. At the same time, the
trial court sua sponte dismissed Count III in a ten-page order in which
it reasoned that a conviction under section 1(a)(2) required a level of alcohol
intake that was so great that it was physically and medically impossible.
The Court of Appeals did not find the statute to demand a lethal
dose of alcohol but affirmed the dismissal of Count III on the ground
that Sales breathalyzer result produced only a .06 reading as it understood the
calculation under the statute. See Sales v. State, 714 N.E.2d 1121, 1128
(Ind. Ct. App. 1999). We granted transfer on January 18, 2000.
The Competing Interpretations of the Statute
Indianas first statute criminalizing the operation of a motor vehicle while intoxicated was
enacted in 1939. See Acts 1939, c. 48, s. 52(b). Not
until 1978 did the legislature attempt to provide a means of measuring intoxication.
See Pub. L. No. 2-1978, § 927, 1978 Ind. Acts 208.
That law provided that a .10% blood-alcohol content was prima facie evidence of
intoxication. In 1983, operating a vehicle with that level was criminalized.
See Pub. L. No. 143-1983, §1, 1983 Ind. Acts 989. The 1983
statute provided: A person who operates a vehicle with ten-hundredths percent (.10%),
or more, by weight of alcohol in his blood commits a Class C
misdemeanor. This language remained essentially the same until it was amended in
1997 to read as follows:
A person who operates a vehicle with at least ten-hundreths percent (0.10%) of
alcohol by weight in grams in:
(1) one hundred (100) milliliters of the persons blood; or
two hundred ten (210) liters of the persons breath;
commits a Class C misdemeanor.
Pub. L. No. 33-1997, § 7, 1997 Ind. Acts 1357 (codified as amended
at Ind. Code § 9-30-5-1(a) (1998)).
Resolution of This Case
The assumption underlying this provision is, as the Court of Appeals observed, that
the weight of alcohol in one unit of volume (milliliters are typically used)
of a persons blood is equivalent to the weight of alcohol present in
2100 units of the same persons breath. See Sales, 714 N.E.2d 1121,
1124 n.5 (Ind. Ct. App. 1999). Before the 1997 amendment introduced breath
alcohol content as a per se violation, law enforcement officials nonetheless used a
machine that measured alcohol in breath, not in blood. The trial courts
order quotes the following language from a Department of Toxicology
memorandum explaining the
proposed 1997 amendment: The proposed change amends the current blood alcohol concentration standard
(percent of alcohol, by weight in grams) to include grams of alcohol per
210 liters of breath as well as grams of alcohol per 100 milliliters
of blood. As the trial court observed, the intent of the 1997
amendment was to adopt the 2100:1 standard and to make clear that breath
content itself was a basis for prosecution, as a majority of states had
The trial court concluded that the language of the statute did not do
the job and dismissed Count III, operating a vehicle with at least ten
hundredths percent (.10%) of alcohol by weight in his breath. This result
was produced by the trial courts detailed calculations which concluded that in order
to violate the statute the fluid in a persons veins would have to
be 210% alcohol. It is obviously impossible to reach an alcohol content
above 100%, and the process would produce death long before that level is
The Court of Appeals also found the statute to be clear on its
face but to demand a different calculation. It concluded:
As written, to be convicted under the breath-alcohol provision a person must have
.10% by weight of alcohol in grams in 210 liters of his breath.
To express the weight of alcohol as a percentage of 210 liters
of breath, we would divide the weight of alcohol by 210, then multiply
by 100 to obtain a percentage.
Id. at 1128. Application of this formula to Sales Intoxilyzer 5000 reading
of .14 grams of alcohol per 210 liters of breath yields .0667%,
is less than the .10% necessary for a conviction under the statute.
We believe both the trial courts and the Court of Appeals calculations reflect
heroic but ultimately failed efforts to make sense of an inherently ambiguous provision.
The statutory language at face value asks for a calculation of the
percent of a number of grams (a unit of weight) found in a
number of liters (a unit of volume). It is, of course, sensible
to speak of the number of grams of alcohol found in a given
volume of blood or breath. It is not meaningful to speak of
a number of grams as a percent of a number of liters, at
least as percent would be understood by one accustomed to dealing with numbers.
The two are not qualitatively the same thing and neither is a
portion of the others whole. To be sure, the relationship between any
two numbers may be stated as a ratio (or one as a percent
of the other). But when different units of measure are attached to
the two numbers, the arithmetic relationship of the numbers can become nonsensical if
percent means what it means in ordinary usage. In simple terms, one
apple is not any percent of two oranges as the term is commonly
This is not the end of the story, however. The term percent
is used in some circles to refer to a measure of weight in
relation to volume, and not to its commonly understood mathematical meaning. We
are told this derives from the usage of the term by laboratory technicians
as a shorthand method of referring to the strength of a solution of
a liquid or solid dissolved in a liquid. A number of courts
have recognized that it is this usage to which percent refers in statutes
dealing with blood alcohol measurement technology.
See, e.g., Rickstrew v. People, 822
P.2d 505, 507-09 (Colo. 1991); Commonwealth v. Brooks, 319 N.E.2d 901, 904-07 (Mass.
1974). Thus, the plain language approach does not resolve this case.
We are dealing with a term that has a commonly understood meaning and
also a meaning derived from its application in the general area of laboratory
measurement of the strength of a solution
and in more recent times specifically
to blood alcohol content.
Because we do not agree with the Court of Appeals that the term
percent is unambiguous in this context, we also disagree that there is
a plain, ordinary and usual meaning of this statute without resorting to other
rules of construction. Sales, 714 N.E.2d at 1128. A number of
considerations are relevant. The goal of statutory construction is to determine, give
effect to, and implement the intent of the legislature. Collier v. Collier,
702 N.E.2d 351, 354 (Ind. 1998). The statute is examined as
a whole and it is often necessary to avoid excessive reliance on a
strict literal meaning or the selective reading of individual words. See id.;
see also Park 100 Dev. Co. v. Indiana Dept of State Revenue, 429
N.E.2d 220, 222 (Ind. 1981) (legislative intent as ascertained from the statute as
a whole prevails over the strict literal meaning of any word or term).
The legislature is presumed to have intended the language used in the
statute to be applied logically and not to bring about an unjust or
absurd result. See Riley v. State, 711 N.E.2d 489, 495 (Ind. 1999).
We conventionally construe penal statutes strictly against the State, see Smith v.
State, 675 N.E.2d 693, 697 (Ind. 1996), but they are not to be
read so narrowly that they exclude cases they fairly cover, see Cape v.
State, 272 Ind. 609, 613, 400 N.E.2d 161, 164 (1980).
Although the first and often the last step in any effort to interpret
a piece of legislation is to examine the language of the statute,
e.g., Indiana Bell Telephone Co. v. Indiana Utility Regulatory Commn, 715 N.E.2d 351,
354 (Ind. 1999), here the statutory language is at best unclear in using
a term with at least two potential meanings, and at worst unintelligible if
we read percent as it is customarily used in general discourse. Given
this ambiguity, we think it is plain which usage the General Assembly intended
to adopt in its 1997 amendment. First, it seems obvious that subsections
(1) and (2) of section 1(a) are intended to provide alternative means of
measuring the same underlying condition. It is alcohol in the brain that
is the ultimate concern, but no one urges the potentially fatal testing that
would be the most reliable measurement of ascertaining brain impairment. For obvious
reasons, blood and breath measures are taken as reasonable proxies. As already
noted, one commonly accepted ratio of alcohol by weight in blood to alcohol
by weight in the same volume of breath is 2100:1. See generally
State v. Downie, 569 A.2d 242, 246-48 (N.J. 1990). Indianas statute reflects
this common assumption in its reference to 210 liters of breath and 100
milliliters (1/10 of a liter) of blood. Other states have taken the
same view in adopting statutes making an alcohol in breath ratio a per
se violation. See, e.g., State v. Brayman, 751 P.2d 294, 296 (Wash.
1988); State v. McManus, 447 N.W.2d 654, 655 (Wis. 1989). Subsection 1(a)(1)
plainly refers to alcohol in grams as a percent of 100 milliliters of
blood. That subsection thus adopts the laboratory technicians use of percent, and
not the mathematicians. Because subsections (1) and (2) measure the same ultimate
condition, it is at least plausible that percent means the same thing in
It is also instructive that the regulations for instruments in effect at the
time of Sales arrest provided, inter alia, that the instrument was to report
results in units of percent by weight (% weight/volume) of alcohol in blood.
Ind. Admin. Code tit. 260, r. 1.1-5-1(a)(1) (1996). This was adopted
before volume of breath was added as a measure, but it reflects the
same usage of percent to describe a ratio of weight to volume.
The 0.10 percent test for blood-alcohol content has long been understood to mean
0.10 grams per 0.10 liters (100 milliliters) of blood. The Court of
Appeals noted that some other states have statutorily defined percent to mean grams
per 100 milliliters.
See Sales, 714 N.E.2d at 1128. We agree
that it would be more elegant had the drafters of the Indiana law
included an express definition to make clear the somewhat odd usage of percent.
Nonetheless, we think it sufficiently clear based on the usage in this
industry that weight to volume is intended.
Other courts have reached the same conclusion. Confronted with similar statutory language,
the Florida Court of Appeals concluded that [a]lthough it may initially seem counter-intuitive
because percent has a common definition for mathematical purposes, in this context it
means grams per 210 liters of breath.
State v. Brigham, 694 So.
2d 793, 793 (Fla. Dist. Ct. App. 1997). An underlying premise of
Brigham and other cases is the notion that the term percentage in drunk-driving
statutes compares grams of alcohol to liters of breath, which are both different
substances and different units of measure. See, e.g., id. at 799 (Appendix
A) ([G]rams as a part of liters should not be expressed as a
percentage, since it is not two measurements of the same thing and it
is not based upon 100 when the measurement is grams per 210 liters.);
City of Monroe v. Robinson, 316 So. 2d 119, 121 n.1 (La. 1975)
([P]er cent by weight of alcohol in the blood is not truly a
percentage at all because it compares weight to volume.). The State and
amicus point to these and other cases in support of their contention that
the term percent has a distinct meaning when used in the context of
blood or breath testing in drunk driving statutes.
Although a claim of resort to common sense is often a mask for
lack of principled rules of decision, in this case we think it appropriate.
Under the trial courts calculations and rationale, a person would violate Indiana
Code § 9-30-5-1(a)(2) only if his or her alcohol blood ratio were 210%,
which would long since have produced not an impaired driver but a corpse,
indeed one perhaps needing no embalming. Under the Court of Appeals interpretation,
a person would require at least .21 grams of alcohol per 210 liters
of breath to violate the statute, a more than a doubling of the
legal alcohol content before the 1997 amendment.
We think it plain that neither view is consistent with the purpose of
the legislature in adopting the 1997 changes to the statute. In recent
years the General Assembly has given serious consideration to legislation proposed by Senator
Wyss that would lower the limit to .08.
See Mary Beth Schneider,
Lawmakers Say No to Drunk-Driving Bill, Indianapolis Star, Jan. 28, 1998, at B05.
There has been no suggestion of raising, much less doubling, the long-standing
.10 legal limit. In view of the other sections of the Indiana
Code affected by the 1997 amendment,
it is clear that the legislature was
merely attempting to validate the existing use of breathalyzers as a means of
measuring the .10 level and to prohibit operating a vehicle with a specified
level of alcohol in the breath as well as in the blood.
Subsequent legislation does not serve retroactively to amend legislation or declare the intent
of a prior General Assembly.
See FGS Enterprises, Inc. v. Shimala, 625
N.E.2d 1226, 1229 (Ind. 1993) (An expression of intent by a subsequent legislature
as to the proper construction of a statute is of no judicial force,
but in cases of doubt such construction is entitled to respectful consideration and
may be given weight by the courts.). Nonetheless, it is comforting to
note that in November of 1999, in an unusually expedited process, and presumably
in response to the Court of Appeals ruling, the General Assembly further amended
the sentence in question to state clearly the result we find today.
See Pub. L. No. 1-2000, §6 (A person who operates a vehicle with
an alcohol concentration equivalent to at least ten-hundreths (0.10) gram of alcohol per:
. . . two hundred ten (210) liters of the persons breath; commits
a Class C misdemeanor.).
In sum, we agree with the courts that have, notwithstanding the somewhat arcane
usage of percent, found these statutes to prohibit operating a vehicle with either
0.10 percent alcohol by weight in the persons blood or 0.10 grams of
alcohol in 210 liters of breath. In reaching this conclusion, we believe
we are implementing the legislative scheme and not substituting our judgment for that
of the legislature. If we are wrong, the legislature can readily correct
Finally, we are mindful that clarity in penal statutes is a very high
priority. Every citizen is entitled to know what the law prohibits before
facing the weight of a criminal prosecution. Here, however, we are dealing
with a statute that is universally understood and fully appreciated by all vehicle
operators. Driving after consuming too much alcohol is a violation of the
law, and drivers understand this means a point one blood content that will
be measured by a breathalyzer. This case presents no obscure regulatory crime
but rather one known to one and all, and one described in the
drivers manual required for licenses.
See Bureau of Motor Vehicles, Indiana Drivers
Manual 66 (Driving while intoxicated or with a blood-alcohol content (BAC) in excess
of the legal limit is a criminal offense and will have an immediate
and significant effect on your privilege to operate a motor vehicle.). No
one reporting a .10 breathalyzer reading can fairly claim surprise at being convicted
of operating a vehicle while intoxicated.
The trial courts sua sponte dismissal of Count III is reversed. We
summarily affirm the Court of Appeals holding that the results of the Intoxilyzer
5000 were admissible. Ind. Appellate Rule 11(B)(3). This case is remanded
to the trial court for further proceedings consistent with this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
We assume this refers to the Department of Toxicology of the
Indiana University School of Medicine referred to in Indiana Code § 9-30-6-5 and
title 260 of the Indiana Administrative Code. The memorandum is not in
The Court of Appeals reached this result by dividing .14 (the
reading) by 210 (the number of liters of breath) then multiplying by 100
(to make the result a percent). The trial court based its calculation
on 210000 as the divisor rather than 210 because it used the number
of milliliters, not the number of liters. This yields .000067% for Sales
.14 Intoxilyzer 5000 reading.
See L. Poindexter Watts, Some Observations on Police-Administered Tests for Intoxication,
45 N.C. L. Rev. 34, 50 n.53 (1966).
See, e.g., 1 Edward Louis Fiandach, Handling Drunk Driving Cases §
10.1 (2d ed. 1995).
See Ind. Code §§ 4-31-8-4; 9-13-2-131; 9-13-2-151; 9-24-6-15; 9-30-5-4; 9-30-5-5; 9-30-5-8.5;
9-30-6-15; 9-30-8-2; 9-30-10-4; 9-30-10-9; 9-30-15-3; 14-15-8-5; 14-15-8-6; 14-15-8-8 (Supp. 1997).