Felix, J.
Law enforcement officers discovered Tyrone Stokes intoxicated at the scene of a late-night car accident, and an ensuing blood draw revealed Stokes had an alcohol concentration equivalent (“ACE”) to 0.20 grams of alcohol per 100 milliliters of blood. Stokes was charged with multiple offenses, including operating a vehicle while intoxicated endangering a person and operating a vehicle with an ACE to at least 0.15 grams of alcohol per 100 milliliters of blood (“ACE count”). The trial court only entered a conviction on the ACE count. Stokes appeals and raises one issue: Whether the State presented sufficient evidence to support Stokes’s conviction.
We reverse and remand.
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Stokes argues that the State presented insufficient evidence at trial to support his conviction for the ACE count.
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In order to prove Stokes operated a vehicle with an ACE to at least 0.15 grams of alcohol per 100 milliliters of blood, the State had to prove beyond a reasonable doubt that Stokes “operate[d]” the vehicle with the requisite ACE. Ind. Code § 9-30-5-1(b). Stokes does not dispute that he operated the vehicle and that his ACE exceeded 0.15 grams when measured. Rather, Stokes argues that the State failed to prove that his ACE exceeded 0.15 grams when he operated the vehicle because the blood draw was administered “some indeterminate time after he last operated the vehicle.”
The State directs us to the rebuttable presumption provided under Indiana Code section 9-30-6-15(b). The statute provides for a rebuttable presumption that (1) when a blood draw or other “chemical test” is administered “within the period of time allowed for testing under” Indiana Code section 9-30-6-2, and (2) the test reveals “an [ACE] to at least eight-hundredths (0.08) gram of alcohol per . . . one hundred (100) milliliters of the person’s blood at the time the test sample was taken”, then (3) “the person charged with the offense had an [ACE] to at least eight-hundredths (0.08) gram of alcohol per one hundred (100) milliliters of the person’s blood . . . at the time the person operated the vehicle.”7 In other words, the presumption allows the factfinder to “relate the driver’s blood alcohol content at the time of a chemical test back to the blood alcohol at the time of the accident.” Allman v. State, 728 N.E.2d 230, 232 (Ind. Ct. App. 2000) (citing Finney v. State, 686 N.E.2d 133, 135 (Ind. Ct. App. 1997), trans. denied) (footnote omitted).
The period of time allowed for testing under Indiana Code section 9-30-6-2 is “within three (3) hours after the law enforcement officer had probable cause to believe the person committed an offense under IC 9-30-5.” I.C. 9-30-6-2(c). Although the statute references “probable cause,” this court has previously held that the State must prove that the chemical test was performed within three hours of the defendant’s last illegal operation of the vehicle. See, e.g., RamirezVera v. State, 144 N.E.3d 735, 740 (Ind. Ct. App. 2020) (noting that the availability of the presumption depended on whether the State proved “the blood test was administered within three hours of [the defendant] operating the vehicle”).
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Here, as in Mordacq, the State did not present any evidence regarding the timing of Stokes’s last operation of the vehicle; Officer Ohda testified that he did not know when the accident occurred. In fact, the only evidence regarding the timing of the accident was Stokes’s testimony. Stokes claimed that he was on the phone with the tow truck company for “like an hour and 30, maybe two hours” after the accident, he then contacted law enforcement, and Officer Ohda arrived “about 20 to 30 minutes” after the Michigan law enforcement officers initially responded. Tr. Vol. IV at 72. Missing from this timeline is the amount of time that passed (1) after the accident and before Stokes called the tow truck company, (2) after completing the call with the tow truck company and before contacting law enforcement, and (3) before the Michigan officers arrived at the scene after Stokes contacted them. The State concedes that, under Stokes’s timeline and assuming all the aforementioned missing-time events occurred almost immediately, the blood draw would have been completed slightly outside the three-hour time limit. Because the State failed to prove that the blood draw was administered within three hours of Stokes’s last operation of the vehicle, the State was not entitled to rely on the presumption provided under Indiana Code section 9-30-6-15(b).
The unavailability of the presumption, however, does not end our analysis. Even though the blood draw was administered outside the three-hour time limit, that only “impacts ‘the rebuttable presumption, not the admissibility of the chemical test.”
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We conclude the evidence is not sufficient. The blood draw alone is not sufficient to establish the ACE Stokes had when he last operated the vehicle because “[i]t is commonly understood that the drinker’s [blood alcohol content] varies over time, as the physiological processes of absorption and oxidation run their course.” Mordacq, 585 N.E.2d at 24 (citing Tyner v. State, 503 N.E.2d 444, 445–46 (Ind. Ct. App. 1987)).
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To be sure, based on Officer Ohda’s observations of Stokes at the scene, one could reasonably conclude that Stokes drank alcohol before or while driving. But Stokes was specifically convicted of the ACE count. The “question” for this offense “is not whether a person was physically or mentally impaired by alcohol. Rather, to convict the defendant, the fact-finder must instead determine how much alcohol—down to hundredths of a gram—was in 100 milliliters of a person’s blood when that person operated a vehicle.” Artigas v. State, 122 N.E.3d 1003, 1006 (Ind. Ct. App. 2019). Evidence of Stokes’s “visible intoxication” was “not probative of [this] particular scientific measurement.” Id. For these reasons, the State failed to present sufficient evidence to support Stokes’s conviction for the ACE count, and we reverse that conviction.
Prepared for the eventuality of a reversal of the ACE count, the State argues that we should remand with instructions that the trial court enter a conviction for one of the other offenses with which Stokes was charged but on which the trial court did not enter a conviction. We agree and remand with instructions for the trial court to determine whether to enter a conviction for either (1) operating a vehicle while intoxicated endangering a person, a Class A misdemeanor, as alleged in Count II, or (2) operating while intoxicated, a Class C misdemeanor, as alleged in Count III.
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Insufficient evidence supports Stokes’s conviction for the ACE count because the State did not present evidence regarding the time of the car accident. Accordingly, we reverse Stokes’s conviction. However, sufficient evidence would support a conviction for (1) operating a vehicle while intoxicated endangering a person, a Class A misdemeanor, or (2) operating while intoxicated, a Class C misdemeanor. We accordingly remand with instructions that the trial court determine whether to enter a conviction for one of these offenses.
Reversed and remanded.
Brown, J., and Scheele, J., concur.