Abney v. State

• Decision Date: 30 June 2004
• Docket Number: No. 49A04-0307-CR-380.,49A04-0307-CR-380.
• Citation: 811 N.E.2d 415
• Parties: Lanny D. ABNEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

811 N.E.2d 415

Lanny D. ABNEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-0307-CR-380.

Court of Appeals of Indiana.

June 30, 2004.

John F. Crawford, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

In this interlocutory appeal, Lanny Abney appeals the trial court's denial of his motion to suppress blood alcohol test results. Abney raises one issue, which we restate as whether the trial court erred by denying Abney's motion to suppress his blood alcohol test results because Abney's blood was drawn after the police had invoked the implied consent statute and Abney had refused to consent to the blood draw. We affirm.

The relevant facts follow. On July 9, 1999, shortly before 3:00 a.m., Jon Heffernan was riding a bicycle on Rockville Road and was struck by a car and killed. Marion County Sheriff deputies responded to the scene, they found Heffernan's body in the center of the road, his severed foot on another part of the road, and bicycle parts scattered on the road.

Around 3:15 a.m., Danville Police Officers Dwight Simmons and James Anderson saw Abney driving down a street in Danville and saw that his car had extensive front-end damage. The officers saw that the windshield of Abney's car was shattered, the hood and the top were caved in, the airbag had been deployed, and Abney had to lean his head out the window to see to drive. Officer Anderson drove up behind Abney and activated his emergency lights. Abney sped away and drove for almost one mile before he stopped his car. During this time, Abney crossed the centerline and drove on the wrong side of the road. When Abney got out of his car, he was unsteady on his feet, lurched toward Officer Anderson, and said that he had hit something. Blood, hair, and skin were on the front of Abney's car. The officers noted that Abney smelled of alcohol, had glassy, bloodshot eyes, had slurred speech, and had difficulty standing. Officer Simmons administered four field sobriety tests to Abney, each of which he failed. Officer Simmons read Indiana's implied consent law to Abney, and Abney initially agreed to submit to a chemical blood test.

Officer Simmons then transported Abney to Hendricks County Hospital for a chemical blood test, but upon arriving at the hospital, Abney refused to submit to the blood test. Thereafter, Marion County Sheriff's Deputy William Atkinson went to the hospital and read the implied consent law to Abney. While Deputy Atkinson was talking to Abney, he noted that Abney had the smell of alcohol on his breath, bloodshot eyes, and slurred speech. Deputy Atkinson requested that Abney submit to a chemical test, told Abney that he needed for Abney to have the blood draw because the police were investigating a fatality, and asked Abney if he was going to cooperate with the hospital staff. Deputy Atkinson filled out a form, which was provided by the hospital, to request that the hospital staff take a sample of Abney's blood.¹ The form attested that: (1) Deputy Atkinson had probable cause to believe that Abney had violated a statutory provision;² (2) Abney was transported to the hospital; (3) Abney was involved in a motor vehicle accident that resulted in serious bodily injury or death of another; and (4) the accident that resulted in the death occurred no more than three hours before the sample was requested. The hospital staff performed the blood test, and the test results showed that Abney had a blood alcohol content of 0.21 percent.

The State charged Abney with: (1) operating a vehicle while intoxicated causing death, a class C felony,³ which was enhanced to a class B felony because Abney had a prior unrelated operating while intoxicated conviction within five years from this charged offense; (2) operating a vehicle with 0.10% or more of alcohol by weight in grams in one hundred milliliters of his blood causing death, a class C felony,⁴ which was enhanced to a class B felony because Abney had a prior unrelated operating while intoxicated conviction within five years from this charged offense; and (3) leaving the scene of an accident resulting in death, a class C felony.⁵ A jury found Abney guilty of the three charges as class C felonies, and Abney pleaded guilty to the class B felony enhancements. The trial court sentenced Abney to an aggregate term of twenty years in the Indiana Department of Correction, with five years suspended.

Abney appealed, his convictions were overturned due to an erroneous instruction, and the case was remanded for retrial. See Abney v. State, 766 N.E.2d 1175 (Ind.2002)

. Prior to his retrial, Abney filed a motion to suppress the blood test evidence. The trial court held a hearing and denied Abney's motion. Upon Abney's request, the trial court certified the order for interlocutory appeal. Thereafter, we accepted jurisdiction of the interlocutory appeal pursuant to Ind. Appellate Rule 14(B).

The sole issue is whether the trial court erred by denying Abney's motion to suppress his blood alcohol test results because Abney's blood was drawn after the police had invoked the implied consent statute and Abney had refused to consent to the blood draw. We review the trial court's ruling on a motion to suppress in a manner similar to other sufficiency questions. Edwards v. State, 759 N.E.2d 626, 630 (Ind.2001). We affirm if substantial evidence of probative value supports the trial court's decision. Id. We may neither reweigh the evidence nor assess the credibility of the witnesses. Id. In addition, we consider the evidence in the light most favorable to the trial court's decision. Id.; see also Crabtree v. State, 762 N.E.2d 217, 219-220 (Ind.Ct.App.2002)

(discussing a conflict between the standard announced in Edwards and the standard announced in other appellate court cases, which require the appellate court to also consider uncontested evidence contrary to the trial court's decision).

Abney argues that the taking of his blood without his consent violated his constitutional rights against unreasonable search and seizure under the Fourth Amendment to the United States Constitution. The Fourth Amendment protects persons from unreasonable search and seizure, and this protection has been extended to the states through the Fourteenth Amendment. Sweeney v. State, 704 N.E.2d 86, 106-107 (Ind.1998), cert. denied, 527 U.S. 1035, 119 S.Ct. 2393, 144 L.Ed.2d 793 (1999). The drawing of blood for the purpose of administering a compulsory blood test is a search. Duncan v. State, 799 N.E.2d 538, 542 (Ind.Ct.App.2003) (citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). As a general rule, the Fourth Amendment prohibits a warrantless search. Sweeney, 704 N.E.2d at 107. When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search. Id. Probable cause and exigent circumstances are recognized exceptions to the warrant requirement. Id. We have previously held the dissipation of alcohol in the blood to be an exigent circumstance. State v. Straub, 749 N.E.2d 593, 600 (Ind.Ct.App.2001). However, absent an auto accident, the dissipation of alcohol in the blood does not alone create an exigent circumstance. Justice v. State, 552 N.E.2d 844, 847 (Ind.Ct.App.1990).

The United States Supreme Court has held that a nonconsensual blood draw does not violate the Fourth Amendment if: (1) there is probable cause to believe that the person has operated a vehicle while intoxicated; (2) the dissipation of alcohol in the blood creates exigent circumstances under which there is no time to secure a search warrant; (3) the test chosen to measure the person's blood alcohol concentration is a reasonable one; and (4) the test is performed in a reasonable manner. Schmerber, 384 U.S. at 768-772,86 S.Ct. at 1834-1836; see also Duncan, 799 N.E.2d at 542. However, these standards in Schmerber are the outer limits of what constitutes acceptable police conduct in taking blood samples from unwilling people, and the states are free to further limit police conduct within the confines of Schmerber. Brown v. State, 774 N.E.2d 1001, 1005 (Ind.Ct.App.2002),reh'g denied, trans. denied. Indiana's implied consent laws define acceptable police behavior within the constitutional limits set forth in Schmerber. Justice, 552 N.E.2d at 848. Indiana's implied consent laws seek to keep Indiana highways safe and protect the public by removing the threat posed by the presence of drunk drivers on the highways. Id.

Abney concedes that the officers had probable cause to believe that he had been operating his vehicle while intoxicated but argues that the trial court erred by denying his motion to suppress his blood tests results because he refused to consent to the blood draw offered to him under the implied consent laws. Abney argues that the implied consent laws do not allow the police to obtain a warrantless blood draw after a person refuses to consent to a chemical test even if the police have probable cause because the only consequences for refusing to consent to submit to a chemical test are civil sanctions. The State argues that the refusal of consent under the implied consent statutes and the resulting penalties for refusal do not preclude police from gathering a blood sample by a different exception to the warrant requirement other than consent. The State also argues that the blood draw was proper under Ind.Code § 9-30-6-6(g) because the officers had probable cause to believe that Abney recently operated a vehicle while intoxicated and was involved in an accident resulting in serious bodily injury or death.

This matter requires us to interpret the implied consent statutes, and specifically, to address the application of Indiana's implied consent statutes, Ind.Code §§ 9-30-6 a...