Attorney for Appellant Attorneys for Appellee
Brady J. Lory Steve Carter
Indianapolis, IN Attorney General of Indiana
Richard C. Webster
Matthew D. Fisher
Deputy Attorneys General
Appeal from the Rush Superior Court, No. 70D01-0201-CM-019
The Honorable David E. Northam, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 70A01-0310-CR-401
May 3, 2005
Ham failed the horizontal gaze nystagmus test, which tests the smoothness of the
side-to-side movement of a persons eyes and is seventy-seven percent accurate. Hatfield
noticed her glassy, bloodshot eyes and her slurred speech. She refused the
walk-and-turn test and said she did not want to take any more field
sobriety tests, claiming she had an inner ear infection. He read her
the Implied Consent Law, and she refused to submit to a chemical breath
test. He arrested Ham and transported her to the Rush County jail.
At the jail, she again refused further sobriety tests. Hatfield explained
that Hams license would be suspended for a year if she did not
take the chemical breath test, and she refused.
The State charged Ham with driving while intoxicated, a class A misdemeanor.
At the jury trial on May 13, 2003, the trial court gave a
final instruction to the effect that Hams refusal to submit to a chemical
breath test may be considered as evidence of her intoxication. The jury
found her guilty of operating a vehicle while intoxicated, a class C misdemeanor.
The Court of Appeals held the instruction erroneous, having a significant potential
to mislead the jury. Ham v. State, 810 N.E.2d 1150, 1154 (Ind.
Ct. App. 2004) vacated. It held the error to be harmless, though,
and upheld the conviction. Id. at 1155.
Hams sole contention on appeal is that instruction number ten (A [D]efendants refusal
to submit to a chemical test may be considered as evidence of intoxication)
misleads the jury by unnecessarily emphasizing a specific piece of evidence. (Appellants
Br. at 4). Two panels of the Court of Appeals have agreed.
See Schmidt v. State, 816 N.E.2d 925, 932-33 (Ind. Ct. App. 2004);
Stoltmann v. State, 793 N.E.2d 275, 280 (Ind. Ct. App. 2003) (error to
instruct that refusal is evidence of guilt). Two other panels have held
the opposite. See Luckhart v. State, 780 N.E.2d 1165, 1168-69 (Ind. Ct.
App. 2003) (instruction that refusal was evidence of guilt not error, but instruction
probably should have used intoxication instead of guilt); Hurt v. State, 553 N.E.2d
1243, 1249 (Ind. Ct. App. 1990) (instruction that refusal was evidence of guilt
Instructing a jury is a matter assigned to trial court discretion, and an abuse of that discretion occurs when the instructions as a whole, mislead the jury as to the law in the case. Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002). Instructions that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved. Ludy v. State, 784 N.E.2d 459, 461 (Ind. 2003) (citing Fehlman v. State, 199 Ind. 746, 755, 161 N.E. 8, 11 (1928)).
We first observe that Indiana Code § 9-30-6-3 only says that a refusal is admissible into evidence, not that it is evidence of intoxication. Judge Baker was correct to say that such evidence is probative only to explain to the jury why there were no chemical test results. Ham, 810 N.E.2d at 1154.
Secondly, Hatfield testified about his entire encounter with Ham from the moment he first spotted her until he booked her in jail, but his testimony about her refusal to submit to a chemical test was the only part of his testimony the court highlighted in the instruction. Whether a defendants refusal to submit to a chemical test is evidence of intoxication or merely that the defendant refused to take the test is for the lawyers to argue and the jury to decide. An instruction from the bench one way or the other misleads the jury by unnecessarily emphasizing one evidentiary fact. See, e.g. Dill v. State, 741 N.E.2d 1230, 1232-33 (Ind. 2003) ([A]lthough evidence of flight may, under appropriate circumstances, be relevant, admissible, and a proper subject for counsel's closing argument, it does not follow that a trial court should give a discrete instruction highlighting such evidence.)
The contrary holdings of Luckhart, 780 N.E.2d at 1168-69, and Hurt, 553 N.E.2d
at 1249, are disapproved.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.