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FOR PUBLICATION
ATTORNEY FOR APPELLANT: JOHN D. FIEREK Voyles Zahn Paul Hogan & Merriman Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOHN DATZEK, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 30A01-0503-CR-114

APPEAL FROM THE HANCOCK SUPERIOR COURT The Honorable Dan E. Marshall, Judge Cause No. 30D02-0310-CM-1453

December 14, 2005 OPINION - FOR PUBLICATION SHARPNACK, Judge

John Datzek appeals his conviction and sentence for operating a vehicle with a blood alcohol content greater than .08% but less than .15% as a class A misdemeanor. 1 Datzek raises five issues, which we consolidate and restate as: I. Whether the trial court abused its discretion by admitting Datzek's blood alcohol test results obtained from a blood draw following a traffic stop; Whether the evidence is sufficient to sustain Datzek's conviction for operating a vehicle with a blood alcohol content greater than .08% but less than .15%; Whether the trial court abused its discretion in sentencing Datzek.

II.

III. We affirm.

The facts most favorable to the conviction follow. 2

On October 1, 2003,

Greenfield Police Officer Michael Noble was on duty when he stopped at a Citgo gas station to get a drink. While inside, Officer Noble saw Datzek come inside the store and pay for some items. Officer Noble, who was standing four to six feet away from Datzek, noticed that Datzek had "poor balance[,]" "swayed a little bit[,]" and "was unsteady in his steps." Transcript at 20, 22. Officer Noble also thought that he smelled alcohol coming from Datzek. Officer Noble asked a fellow officer whether he smelled alcohol on Datzek, and the officer responded that "he thought so, or that there may have been and he

1

Ind. Code

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