Abney v. State
| Decision Date | 27 January 2005 |
| Docket Number | No. 49S04-0501-CR-29.,49S04-0501-CR-29. |
| Citation | 821 N.E.2d 375 |
| Parties | Lanny D. ABNEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
John F. Crawford, Crawford & DeVane, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Facts and Procedural History
On July 9, 1999, shortly before 3:00 a.m., deputies of the Marion County Sheriff's Department found the deceased body of Jon Heffernan lying in the middle of a roadway. A car had struck Heffernan and the bicycle he was riding. Shortly thereafter, Danville police officers James Anderson and Dwight Simmons saw Lanny Abney driving in a car that had extensive front-end damage. The windshield was shattered, the hood and top of the car were caved in, and the airbag had been deployed. Abney had to navigate the car by leaning his head out of the driver's side window. When the officers pulled behind Abney and activated their overhead lights, Abney sped away, crossed the centerline, drove on the wrong side of the road, and drove for about a mile before finally pulling into a driveway in a residential neighborhood. When Abney got out of the car, he was unsteady on his feet, he smelled of alcohol, his speech was slurred, and his eyes were glassy and bloodshot. After initial questioning, Abney admitted having hit something with his car, but said he did not know what it was. The officers observed what appeared to be blood, hair, and skin on the front of Abney's car.1
Officer Simmons arrested Abney and read to him Indiana's implied consent law. Abney agreed to submit to a chemical test and Officer Simmons then transported Abney to the Hendricks County Hospital for that purpose. Once there, Abney changed his mind and refused to submit to a blood test. Thereafter Marion County Sheriff's Deputy William Atkinson arrived at the hospital. He read Abney an implied consent advisement as follows:
I have probable cause to believe that you have operated a vehicle while intoxicated. I must now offer you the opportunity to submit to a chemical test and inform you that your refusal to submit to a chemical test will result in a suspension of your driving privileges for one year. Will you now take a chemical test?
Appellant's App. at 120. Deputy Atkinson added however that even if Abney did not consent, "we were going to have to take the blood due to the fact that we had a serious bodily injury or fatality crash." Id. at 121. Abney refused the offer telling Deputy Atkinson that if they took blood it would be "against his will." Id. at 135. Deputy Atkinson then filled out a form that was provided by the hospital for the purpose of requesting hospital staff to take a sample of Abney's blood. The form attested that: (1) Deputy Atkinson had probable cause to believe that Abney had violated a statutory provision; (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 death occurred no more than three hours before the sample was requested. The hospital staff took a blood sample and performed an analysis that showed Abney had a blood alcohol content of .21%.
The State charged Abney with: (1) operating a vehicle while intoxicated causing death, a Class C felony, which was enhanced to a Class B felony because of a prior unrelated conviction of operating while intoxicated within five years from the charged offense; (2) operating a vehicle with .10% or more blood alcohol content causing death, a Class C felony, which was also enhanced to a Class B felony; and (3) leaving the scene of an accident resulting in death, a Class C felony. After a trial by jury Abney was found guilty of the charges as Class C felonies. He thereafter pleaded guilty to the Class B felony enhancements. The trial court sentenced Abney to an aggregate term of twenty years in prison with five years suspended. Abney appealed and the Court of Appeals reversed his convictions because of an erroneous jury instruction. The Court remanded the cause for a new trial. See Abney v. State, 758 N.E.2d 72 (Ind.Ct.App.2001)
. We granted the State's petition to transfer in order to clarify certain points of law. In the end we agreed with the Court of Appeals and also reversed Abney's conviction and remanded the cause for a new trial. See Abney v. State, 766 N.E.2d 1175 (Ind.2002).
Prior to retrial, Abney filed a motion to suppress the results of the blood test, which the trial court denied after a hearing. Upon Abney's request the trial court certified its order for interlocutory appeal, and the Court of Appeals accepted jurisdiction. On review the Court of Appeals affirmed the judgment of the trial court. See Abney v. State, 811 N.E.2d 415 (Ind.Ct.App.2004)
. In so doing the Court of Appeals determined that Indiana Code § 9-30-6-6(g) allowed for the warrantless non-consensual taking of blood samples in cases involving serious bodily injury or death, regardless of whether a physician was reluctant to take the sample. Id. at 422. Abney petitioned this Court for transfer contending among other things that the Court of Appeals' opinion in this case conflicts with other Court of Appeals opinions, namely: Guy v. State, 678 N.E.2d 1130 (Ind.Ct.App.1997); Spriggs v. State, 671 N.E.2d 470 (Ind.Ct.App.1996); and State v. Robbins, 549 N.E.2d 1107 (Ind.Ct.App.1990).
Indiana Code § 9-30-6-6(g) provides:
I.C. 9-30-6-6(g). In Robbins the defendant was charged with several offenses related to the operation of a motor vehicle while intoxicated after he was involved in a one-car collision. 549 N.E.2d at 1108. He filed a motion to suppress the results of a serum blood alcohol test performed by a hospital treating physician. At the hearing on the motion the defendant argued that the State did not comply with subsection (g) of Indiana Code § 9-11-4-6 (predecessor to Indiana Code § 9-30-6-6(g)) in requesting that a test be performed. In reversing the judgment of the trial court, the Court of Appeals determined that subsection (g) was not applicable in that case. The court continued:
Prior to the enactment of subsection (g), a reluctant physician, or member of hospital staff, could avoid turning such evidence of...
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