Bradford, J.
Appellant-Defendant Heath Poortenga was charged with and found guilty of both Class C misdemeanor and Class A misdemeanor operating while intoxicated (“OWI”). Following trial, the trial court dismissed the Class C misdemeanor OWI conviction as a lesser-included offense of the Class A misdemeanor conviction. …
At approximately 3:00 a.m. on July 10, 2016, Officer Kevin Fertig of the police division of the Lake County Sheriff’s Department was on patrol in the area around 141st Street in Lake County. While on patrol, Officer Fertig passed a red Chevy Aveo that had a headlight out. Officer Fertig looked in his rearview mirror and noticed that the license plate was not illuminated. In light of these violations, Officer Fertig decided to initiate a traffic stop. …
When Officer Fertig approached Poortenga’s vehicle, he observed that Poortenga appeared to have trouble locating his driver’s license. He was “speaking very slow” and his “eyes were pretty glossy.” Officer Fertig also noticed the smell of alcohol emanating from the vehicle. …
Poortenga complied with Officer Fertig’s request that he exit the vehicle and calmly participated in three different field sobriety tests—the Horizontal Gaze Nystagmus test, the walk and turn test, and the one-leg stand test—all of which he failed. Given his observations and Poortenga’s inability to successfully complete the field sobriety tests, Officer Fertig formed the opinion that Poortenga was intoxicated. After Officer Fertig read Poortenga the implied consent advisement, Poortenga agreed to submit to a chemical test.
… The results of this test indicated that at the time of his arrest, Poortenga had an ACE of 0.069. Poortenga was then placed under arrest.
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A jury trial commenced on June 23, 2017. During both opening statement and closing argument, Poortenga’s counsel pointed to the fact that Poortenga tested below the legal limit in support of Poortenga’s claim that he was not intoxicated at the time he was stopped by Officer Fertig. The State objected to defense counsel’s statements during opening statement, after which the trial court admonished the jury on the nature of opening statements.
The State also objected to defense counsel’s statements during closing argument, after which the trial court admonished the jury as follows: “Do not put any consideration into a – -.08 that the defense keeps bringing up. … That is not part of this case. Do not put any weight into that.” The jury subsequently found Poortenga guilty as charged.
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Poortenga contends that the trial court abused its discretion in admonishing the jury. …
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“‘Prima facie evidence of intoxication’ includes evidence that at the time of an alleged violation the person had an [ACE of] at least eight-hundredths (0.08) gram of alcohol per … two hundred ten (210) liters of the person’s breath.” Ind. Code § 9-13-2-131. Thus, evidence relating to an individual’s ACE is certainly relevant to prove intoxication when the individual’s ACE is at least 0.08. It would seem unjust to limit relevance of one’s ACE to only cases when the individual’s ACE is found to be 0.08 or more. Further, we have previously noted that once an individual has consented to a chemical test, he may not then object to the results of the chemical test being used against him. See Temperly v. State, 933 N.E.2d 558, 566 (Ind. Ct. App. 2010). It seems the reverse should also be true that the State may not complain if a defendant who tested below the legal limit attempts to introduce that fact in an effort to discredit the State’s claim that he was intoxicated.
For these reasons, we conclude that evidence of an individual’s ACE is relevant to the question of whether the individual was intoxicated, regardless of whether the individual’s ACE was more or less than 0.08. In reaching this conclusion, however, we do not intend to suggest that a finding that an individual’s ACE is under the legal limit of 0.08 per se proves that the individual was not intoxicated. Rather, we merely conclude that such a fact is evidence that may be considered when determining whether an individual was intoxicated.
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By instructing the jury not to consider the evidence that Poortenga’s ACE was under the legal limit of 0.08, the trial court admonished the jury to ignore relevant evidence. Nothing in the record suggests that the probative value of this evidence was substantially outweighed by any prejudicial effect it may have on the jury, see generally, Williams v. State, 741 N.E.2d 1209, 1211 (Ind. 2001) … We therefore conclude that the trial court’s instruction to ignore relevant evidence and reasonable inferences that can be derived from that evidence amounts to an abuse of discretion as it was clearly against the logic and effect of the facts and circumstances before the court.
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The judgment of the trial court is reversed and remanded with instructions.
Baker, J., and Kirsch, J., concur.