Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

John R. Watkins

Arata Law Firm

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika Prekopa Talbot

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

John D. Anders,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 25, 2017

Court of Appeals Case No.

17A05-1611-CR-2634

Appeal from the DeKalb Superior 

Court

The Honorable George E. Brown, 

Senior Judge

Trial Court Cause No.

17D01-1604-CM-271

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017 Page 2 of 11

Case Summary and Issue

[1] Following a jury trial, John Anders was convicted of operating a vehicle with 

an alcohol concentration equivalent (“ACE”) greater than .08, a Class C 

misdemeanor. Anders appeals his conviction, raising three issues for our 

review, which we consolidate and restate as: 1) whether the trial court abused 

its discretion in admitting and excluding certain evidence, and 2) whether the 

trial court abused its discretion in instructing the jury. Concluding the trial 

court neither abused its discretion in admitting and excluding evidence nor in 

instructing the jury, we affirm.

Facts and Procedural History

[2] In the early afternoon of April 15, 2016, Dekalb County Sheriff Deputy 

Courtney Fuller approached Anders after he parked in a school parking lot. 

Deputy Fuller observed an open beer container in the middle console of 

Anders’ vehicle and a case of beer in the passenger seat. Deputy Fuller also 

recognized an odor of alcohol coming from Anders’ breath. Anders admitted 

to having a few drinks and claimed he only stopped at the school to urinate.

Deputy Fuller then transported Anders to the county jail for a breath test. 

[3] Deputy Rick Short administered the breath test to Anders. Anders did not blow 

hard enough during the first test. Deputy Short then instructed Anders to 

“blow like a motherf***er” and twice re-administered the test. Transcript at 91. 
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The results of the two subsequent tests indicate Anders’ ACE was 

approximately .11. 

[4] On April 21, 2016, the State charged Anders with operating a vehicle with an 

ACE greater than .08, a Class C misdemeanor. During trial, the trial court 

admitted evidence of Anders’ breath test results over his objection. In addition, 

Anders sought to introduce evidence showing he was not impaired. The State 

objected on relevancy grounds, which the trial court sustained. A jury found 

Anders guilty as charged. This appeal ensued. Additional facts will be added 

as necessary.

Discussion and Decision

I. Admission and Exclusion of Evidence

A. Standard of Review

[5] The admission or exclusion of evidence falls within the sound discretion of the 

trial court and we therefore review a trial court’s determination as to the 

admissibility of evidence for an abuse of discretion. Swingley v. State, 739 

N.E.2d 132, 133 (Ind. 2000). A trial court abuses its discretion if its decision is 

clearly against the logic and effect of the facts and circumstance before the 

court. Johnson v. State, 70 N.E.3d 890, 895-96 (Ind. Ct. App. 2017), trans. 

pending.
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B. Breath Test Results

[6] Anders contends the trial court abused its discretion in admitting evidence of 

his breath test results. Specifically, he claims Deputy Short did not follow 

approved techniques for administering the tests when explaining he needed to 

“blow like a motherf***er[,]” tr. at 91, and therefore the State failed to meet its 

burden of establishing a proper foundation to admit the results of the test into 

evidence. We disagree.

[7] Results of chemical breath tests are not admissible if the test 

operator, test equipment, chemicals used in the test, or 

techniques used in the test have not been approved in accordance 

with the rules adopted by the Department of Toxicology. Ind.

Code § 9-30-6-5(d). The admission of chemical breath test results 

is left to the sound discretion of the trial court and will be 

reviewed for an abuse of discretion. Because the State is the 

party offering the results of the breath test, it has the burden of 

establishing the foundation for admitting the results. Therefore, 

the State must set forth the proper procedure for administering a 

chemical breath test and show that the operator followed that 

procedure.

Fields v. State, 807 N.E.2d 106, 109 (Ind. Ct. App. 2004) (internal citations 

omitted), trans. denied. The procedure for administering a chemical breath test, 

as promulgated by the Department of Toxicology in the Indiana Administrative 

Code, provides in relevant part, “STEP TEN: When ‘Please blow’ appears on 

the instrument display, place a new mouthpiece in the breath tube. Instruct the 

subject to deliver a breath sample. Remove mouthpiece when prompted by the 
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instrument display and discard.” 260 Ind. Admin. Code 2-4-2(a) (emphasis 

added). 

[8] Here, Deputy Short explained the testing procedures to Anders, and when 

Anders did not blow sufficiently, Deputy Short further instructed him to “blow 

like a motherf***er.” Tr. at 91. Thus, although this may have been a rather 

vulgar way of instructing Anders, Deputy Short’s explanation satisfied the

procedures promulgated by the Department of Toxicology by instructing 

Anders to deliver a breath sample.1 We conclude the trial court did not abuse 

its discretion in admitting evidence of Anders’ breath test results.

C. Impairment Evidence

[9] Anders also challenges the trial court’s decision to exclude evidence he claims 

shows he was not impaired. Specifically, he claims such evidence is relevant, 

and in the alternative, the State opened the door for the admission of such 

evidence. We disagree. 

[10] Evidence is relevant if it has a tendency to make a fact more or less probable 

than it would be without the evidence and the fact is of consequence in 

determining the action. Ind. Evidence Rule 401. Here, the State charged 

 

1 Anders’ argument relies heavily on the Indiana State Department of Toxicology Manual, which instructs 

police officers to explain to individuals taking a breath test to take a deep breath, tightly purse their lips 

around the test tube, and blow long and steady until the officer stops them. However, this specific instruction 

contained within the manual does not appear to be promulgated into any rules of law. This claim fails. 
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Anders with operating a motor vehicle with an ACE greater than .08 pursuant 

to Indiana Code section 9-30-5-1(a), which provides,

A person who operates a vehicle with an alcohol concentration 

equivalent to at least eight-hundredths (.08) gram of alcohol but 

less than fifteen-hundredths (0.15) gram of alcohol per: 

(1) one hundred (100) milliliters of the person’s blood; or 

(2) two hundred (210) liters of the person’s breath;

commits a Class C misdemeanor.

Despite there being no requirement the State prove Anders was impaired in 

order to secure a conviction under this section, Anders contends evidence 

pertaining to his impairment is relevant. First, he cites to multiple cases where 

we addressed convictions for driving with an illegal ACE and noted evidence 

showing the defendant was impaired. See Fields, 807 N.E.2d at 113-14; Disbro v. 

State, 791 N.E.2d 774, 776 (Ind. Ct. App. 2003), trans. denied; Kopas v. State, 699 

N.E.2d 1193, 1194-95 (Ind. Ct. App. 1998). However, contrary to Anders’ 

assertion, we did not hold in any of the cases cited by him that evidence of 

impairment, or lack thereof, is relevant to the offense of driving with an illegal 

ACE as a matter of law. In addition, we agree with the State that Anders was 

only charged and convicted of driving with an illegal ACE, not driving while 

intoxicated.2 Thus, the issue of Anders’ impairment was not of consequence in 

 

2 We further note Anders also argues evidence of his lack of impairment was relevant to the proceedings 

because such evidence would have the effect of diminishing the probative value of his breath test results. 

Stated differently, Anders alleges the introduction of this evidence would allow him to attack the credibility 

of the breath test. In support, he cites a 1983 Arizona Supreme Court Case holding evidence of a defendant’s 

sobriety may be relevant to the jury’s determination of whether the breath test results were an accurate 

measure of the defendant’s ACE at the time of the offense. Fuenning v. Superior Court, 680 P.2d 121, 132 
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determining the action. See Evid. R. 401. We conclude the trial court’s 

decision to exclude the evidence on relevancy grounds was not clearly against 

the logic and effect of the facts and circumstances of the case.3

[11] Nonetheless, we further observe,

Indiana courts have long recognized that otherwise inadmissible 

evidence may become admissible if a party opens the door to 

questioning on that evidence in order to correct a deceptively 

incomplete disclosure. In order for this to occur, the party 

opening the door must leave the trier of fact with a false or 

misleading impression of the facts related. 

Valdez v. State, 56 N.E.3d 1244, 1249 (Ind. Ct. App. 2016) (citations omitted), 

trans. denied. Anders contends the State opened the door to evidence of his lack 

of impairment when it elicited testimony from Deputy Fuller showing Anders 

was in possession of an open beer and a case of beer, Anders smelled of alcohol, 

and Anders admitted to having a couple drinks. We disagree, however, the 

State’s evidence left the jury with a false or misleading impression of the facts 

related. Rather, the State’s evidence of impairment was not at issue and such 

evidence merely established a timeline of events leading up to Deputy Short 

administering multiple breath tests to Anders, tests which ultimately provided 

 

(Ariz. 1983). In addition, he cites to a 2015 California Supreme Court Case holding evidence of impairment

may be relevant and circumstantial evidence used to bolster the results of a breath test. See Coffey v. Shiomoto, 

345 P.3d 896, 907 (Cal. 2015). However, Anders does not cite to any Indiana authority holding the same 

and we decline Anders’ invitation for us to do so today. 

3

For this reason, Anders’ claim that the trial court’s decision abridged his right to provide a complete defense 

also fails. See Evid. R. 402 (“Irrelevant evidence is not admissible.”).
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the evidence sufficient to establish Anders operated a vehicle with an ACE 

greater than .08. We conclude the trial court did not abuse its discretion in 

excluding evidence of Anders’ lack of impairment.4

II. Jury Instructions

[12] Anders contends the trial court abused its discretion in instructing the jury. 

Again, we disagree.

The purpose of a jury instruction is to inform the jury of the law 

applicable to the facts without misleading the jury and to enable 

it to comprehend the case clearly and arrive at a just, fair, and 

correct verdict. We review a trial court’s instructions to the jury 

for an abuse of discretion. An abuse of discretion arises when 

the instruction is erroneous and the instructions taken as a whole 

misstate the law or otherwise mislead the jury. When evaluating

the jury instructions on appeal this Court looks to whether the 

tendered instructions correctly state the law, whether there is 

evidence in the record to support giving the instruction, and 

whether the substance of the proffered instruction is covered by 

other instructions.

Isom v. State, 31 N.E.3d 469, 484-85 (Ind. 2015) (citations and internal 

quotation marks omitted), cert. denied, 136 S.Ct. 1161 (2016).

[13] Here, the State charged and Anders was convicted pursuant to Indiana Code 

section 9-30-5-1(a), which provides a person who drives with an ACE greater 

 

4 Although we see no error, we take this opportunity to note any error in the exclusion of Anders’ evidence 

was harmless. As noted above, the State need only prove Anders drove with an ACE greater than .08 and 

the admission of Anders’ breath test results was sufficient to convict him. 
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than .08 commits a Class C misdemeanor. In addition, Indiana Code section 9-

30-6-15(b) states,

If, in a prosecution for an offense under IC 9-30-5, evidence 

establishes that:

(1) a chemical test was performed on a test sample taken 

from the person charged with the offense within the period 

of time allowed for testing under section 2 of this chapter; 

and

(2) the person charged with the offense had an alcohol 

concentration equivalent to at least eight-hundredths (0.08) 

gram of alcohol. . . 

the trier of fact shall presume that the person charged with the 

offense had an alcohol concentration equivalent to at least eighthundredths (0.08) . . . at the time the person operated the vehicle. 

However, this presumption is rebuttable.

[14] During trial, the State submitted evidence that Deputy Short administered a 

breath test to Anders within the time allowed, see Ind. Code § 9-30-6-2(c), and 

Anders’ ACE was greater than .08. The trial court then instructed the jury as 

follows:

Before you may convict the Defendant, the State must have 

proved each of the following elements beyond a reasonable 

doubt:

1. The Defendant, John D. Anders,

2. operated a vehicle

3. with an alcohol concentration equivalent to at least 

eight-hundredths (0.08) . . . .

If the State failed to prove each of these elements beyond a 

reasonable doubt, you must find the Defendant not guilty of 

Operating a Vehicle With an Unlawful Alcohol Concentration in 

Blood or Breath, a Class C Misdemeanor.
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(a) If you make the following three findings:

(1) a chemical test was performed on a test sample 

taken from the Defendant; and

(2) the chemical test was performed within three 

hours of the Defendant’s alleged operation of a 

motor vehicle; and

(3) the test results indicated that the Defendant had 

an alcohol concentration of at least eighthundredths (0.08) . . .

then

(b) you may infer that the Defendant had an alcohol 

concentration of at least eight-hundredths (0.08) . . . at the 

time the Defendant is alleged to have operated the motor 

vehicle.

If you do make the findings (1) though (3) listed above under 

subpart (a), however, the law does not require you to make the 

inference of an alcohol concentration of at least eight-hundredths 

(0.08) . . . at the time the Defendant is alleged to have operated 

the motor vehicle. You are free to accept the inference or reject 

it.

Appendix to Brief of Appellant, Volume 2 at 79-80 (emphasis added).

[15] On appeal, Anders takes issue with the portion of the instruction emphasized 

above. Specifically, he claims this portion departs from Indiana Code sections 

9-30-5-1(a) and (b) and had the effect of “reliev[ing] the State of its burden to 

prove unlawful [ACE] at the time of testing.” Reply Brief of Appellant at 7. He 

further explains,

The trial court’s instruction states that if ‘results indicate’ an 

unlawful [ACE] at the time of testing, then the jury may presume 

an unlawful [ACE] at the time of operation. On the other hand, 

the statute says that if the person charged with the offense ‘had’ 
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an unlawful [ACE] at the time of testing, then unlawful [ACE] at 

the time of operation shall be presumed.

Amended Brief of Appellant at 20. However, the final instructions plainly 

provide the jury, upon finding a breath test occurred within three hours of 

Anders’ operation of the vehicle and test results show Anders’ ACE was greater 

than 0.08, the right to “infer that the Defendant had an alcohol concentration of 

at least eight-hundredths (.08) . . . of his breath at the time the Defendant is alleged 

to have operated the motor vehicle.” App., Vol. 2 at 80 (emphasis added). Thus, 

we cannot accept Anders’ assertion that the instructions relieve the State of the 

obligation to meet its burden of proving he drove with an ACE greater than .08. 

The trial court did not abuse its discretion in instructing the jury.

Conclusion

[16] The trial court did not abuse its discretion in admitting evidence of Anders’ 

breath results, excluding evidence of his lack of impairment, or in instructing 

the jury. Accordingly, we affirm.

[17] Affirmed.

Vaidik, C.J., and Bailey, J., concur.