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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: ZACHARY A. WITTE Fort Wayne, Indiana ATTORNEYS FOR APPELLEE: STEPHEN R. CARTER Attorney General of Indiana Indianapolis, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JAMES D. BROWN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 02A05-0611-CR-639

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Marcia Linsky, Magistrate Cause No. 02D04-0510-CM-7941

NOVEMBER 20, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION ROBERTSON, Senior Judge

STATEMENT OF THE CASE Defendant-Appellant James D. Brown ("Brown") appeals from his conviction after a jury trial of operating a motor vehicle while intoxicated, a Class C misdemeanor. We affirm. ISSUE The sole issue presented for our review is whether the State's evidence of Brown's intoxication was sufficient to support Brown's conviction of operating a vehicle while intoxicated. FACTS Fort Wayne Police Officer Jerry Mericle clocked the car that Brown was driving at 60 miles per hour in a 40 mile per hour speed zone. Mericle stopped the vehicle. After the passenger, who was the owner of the vehicle, protested loudly, Officer Mericle asked Brown to exit the vehicle in order to exchange information. Officer Mericle detected the odor of alcohol coming from the vehicle, and a moderate odor of alcohol coming from Brown after Brown had exited the vehicle. Officer Bradtmueller, who was working on a special OWI patrol, arrived on the scene to assist Officer Mericle. Officer Bradtmueller had Brown perform three field sobriety tests. Brown failed all three tests. Brown was taken to a hospital for a blood alcohol test, which he refused. The doctor was amused by Brown's excuse for refusing the blood alcohol test. Brown stated that he had undergone a medical procedure earlier in the day, and suspected that the red dye injected into him for that procedure contained alcohol. Brown feared that the alcohol would show up in his blood test. 2

DISCUSSION AND DECISION As applicable to this appeal, Ind. Code

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