Gutenstein v. State, No. 46A04–1511–CR–1892.
| Docket Nº | No. 46A04–1511–CR–1892. |
| Citation | 59 N.E.3d 984 |
| Case Date | August 31, 2016 |
| Court | Court of Appeals of Indiana |
59 N.E.3d 984
Howard B. GUTENSTEIN, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.
No. 46A04–1511–CR–1892.
Court of Appeals of Indiana.
Aug. 31, 2016.
John Mark Vouga, Nicholas Barnes, Vouga & Associates, LLC, Portage, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
BROWN, Judge.
I. Whether the trial court abused its discretion in denying his motion to dismiss; and
II. Whether the trial court erred in denying his motion to suppress.
We affirm.
Facts and Procedural History
[2] Around 2:00 a.m. on April 25, 2013, George Leeth was traveling eastbound on I–94 and observed a gray car later determined to be driven by Gutenstein making unsafe lane movements. Leeth was unable to move around the vehicle, and called 911 to report Gutenstein's behavior. Gutenstein slowed down in the right lane to twenty-five miles per hour, and Leeth activated the hazards on his semi. Gutenstein then stopped his vehicle in the right lane, and Leeth also stopped with his hazards activated. A semi driven by Steve Lunn struck the rear of Leeth's semi.
[3] Indiana State Trooper Rogelio Escutia, a probationary trooper at that time, responded to the scene and observed a semi in the right lane and another semi on the outside shoulder with heavy damage.1 Trooper Escutia observed Lunn in the cabin of one of the semis and asked him if he was okay. Lunn was "only able to lift his body up, as he kept bleeding from his mouth and then he went back down." Transcript at 15. Trooper Escutia observed a small passenger car with no physical
[59 N.E.3d 989
damage and with its lights off in front of the white semi.
[5] Trooper Escutia learned that Gutenstein was going "lane to lane," "was not able to let other vehicles pass," and that he almost crashed into the center barrier wall. Id. at 52. Trooper Escutia determined that Gutenstein stopped his car in the right lane, that Leeth was a concerned driver and stopped to determine "what's going on with this guy in front of me," and then Lunn crashed into Leeth's semi. Id. at 38.
[6] Trooper Adam Rubesha, a more experienced trooper, arrived, also smelled alcohol, and told Trooper Escutia to place Gutenstein in handcuffs. Trooper Escutia placed Gutenstein in handcuffs and into the front seat of his patrol vehicle and put the seat belt on him. Trooper Escutia then assisted the other troopers with the investigation at the scene and in helping Lunn, who died at the scene.
[7] At some point, post command told Trooper Escutia that he needed to obtain a blood draw "because it is policy for us to during serious accidents to always get a consent to, for an alcohol test." Id. at 24. While in his police vehicle, Trooper Escutia read Gutenstein an implied consent warning. Specifically, Trooper Escutia stated:
I have reason to believe that you have operated a vehicle that was involved in a fatal or serious bodily injury crash. 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 suspension of your driving privileges for one year and is punishable as a Class C Infraction. If you have at least one previous conviction for operating while intoxicated, your refusal to submit to a chemical test, will result of [sic] suspension of your driving privilege for two years ... and is punishable as a Class A Infarction [sic].
Id. at 25–26. Trooper Escutia also informed Gutenstein of his Miranda rights. Gutenstein indicated verbally that he understood the implied consent warnings and his Miranda rights. Trooper Escutia told Gutenstein that he was going to take him to the hospital for a blood draw, and Gutenstein stated: "[Y]es." Id. at 56. Trooper Escutia transported Gutenstein to the hospital.
[8] At the hospital, Trooper Escutia gave Gutenstein a printed sheet of his Miranda warning. Trooper Escutia read Gutenstein a form that states "CHECK EACH BOX AS YOU EXPLAIN IT. " State's Exhibit 1. Under that statement, the form contains a heading titled "Miranda Warning, " a list of rights with boxes next to them, and a signature line and a witness line. Id. Under the heading "Fatal/SBI Crash Implied Consent Warning, " the following statements are listed:
[59 N.E.3d 990
I have reason to believe that you have operated a vehicle that was involved in a fatal or serious bodily injury crash.
I must know [sic] offer you the opportunity to submit to a chemical test.
I must inform you that your refusal to submit to a chemical test will result in the suspension of your driving privileges for up to one (1) year and is punishable as a Class C Infraction.
I must inform you that if you have at least one previous conviction for operating while intoxicated, your refusal to submit to a chemical test will result in the suspension of your driving privileges for up to two (2) years and is punishable as a Class A Infraction.
Id. Each of the above statements had a box next to it. Under these statements, the form read: "Will you now take a chemical test?" Id. The word "YES" was circled. Id. Trooper Escutia checked the boxes and placed his signature under the Miranda warning and the implied consent warning because he understood the form as requiring that he do so. Trooper Escutia went through these forms with Gutenstein in the phlebotomist's office of the hospital. Trooper Escutia and the phlebotomist then explained to Gutenstein that there was going to be blood drawn from his body. Gutenstein acknowledged that he understood his rights and consented to the blood draw.
[10] Shortly before the blood draw, LaPorte County Sheriff's Detective Lowell Scott Boswell arrived at the hospital and observed that Gutenstein had an odor commonly associated with alcoholic beverages "permeating" from his person and that his eyes were glassy. Transcript at 68. Gutenstein was not handcuffed and did not voice any objection or concern when his blood was drawn or at any point. The blood test revealed the presence of alcohol, specifically 0.13% ethanol.
[11] On April 26, 2013, the State charged Gutenstein with: Count I, operating a motor vehicle while intoxicated causing death as a class C felony; Count II, reckless homicide as a class C felony; and Count III, operating a vehicle while intoxicated as a class A misdemeanor.
[12] On June 11, 2015, Gutenstein filed a motion to dismiss and a memorandum of law and alleged that the charging informations for Counts I and II were defective because they failed to recite facts that constitute the alleged offenses and that he caused Tunn's death. That same day, he filed a motion to suppress evidence of his blood alcohol concentration and alleged that the police seized a sample of his blood to test for alcohol and other controlled substances without lawful authority. He asserted that the police did not have a warrant, probable cause, or consent to obtain the blood sample. He also alleged that the blood draw was not done for purposes of medical treatment and violated
[59 N.E.3d 991
the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.
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State v. Katz, Supreme Court Case No. 20S-CR-632
...if a trial court's decision is clearly against the logic and effect of the facts and circumstances." 179 N.E.3d 441 Gutenstein v. State , 59 N.E.3d 984, 994 (Ind. Ct. App. 2016), trans. denied. "The constitutionality of an Indiana statute is a pure question of law we review de novo." Horner......
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State v. Katz, 20S-CR-632
...occurs only if a trial court's decision is clearly against the logic and effect of the facts and circumstances." Gutenstein v. State, 59 N.E.3d 984, 994 (Ind.Ct.App. 2016), trans. denied. "The constitutionality of an Indiana statute is a pure question of law we review de novo." Horner v. Cu......
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Isley v. State, 21A-CR-2837
...facts involving drunk driving have given police a high degree of concern, suspicion, or knowledge. See, e.g., Gutenstein v. State, 59 N.E.3d 984, 1004 (Ind.Ct.App. 2016); Frensemeier v. State, 849 N.E.2d 157, 164 (Ind.Ct.App. 2006). Degree of Intrusion [¶20] The degree of intrusion was low.......
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Milo v. State, Court of Appeals Case No. 19A-CR-751
...a ruling on a motion to dismiss a charging information, we take the facts alleged in the information as true. Gutenstein v. State , 59 N.E.3d 984, 994 (Ind. Ct. App. 2016) (citing Pavlovich , 6 N.E.3d at 974 ), trans. denied . " ‘Questions of fact to be decided at trial or facts constitutin......
-
State v. Katz, Supreme Court Case No. 20S-CR-632
...if a trial court's decision is clearly against the logic and effect of the facts and circumstances." 179 N.E.3d 441 Gutenstein v. State , 59 N.E.3d 984, 994 (Ind. Ct. App. 2016), trans. denied. "The constitutionality of an Indiana statute is a pure question of law we review de novo." Horner......
-
State v. Katz, 20S-CR-632
...occurs only if a trial court's decision is clearly against the logic and effect of the facts and circumstances." Gutenstein v. State, 59 N.E.3d 984, 994 (Ind.Ct.App. 2016), trans. denied. "The constitutionality of an Indiana statute is a pure question of law we review de novo." Horner v. Cu......
-
Isley v. State, 21A-CR-2837
...facts involving drunk driving have given police a high degree of concern, suspicion, or knowledge. See, e.g., Gutenstein v. State, 59 N.E.3d 984, 1004 (Ind.Ct.App. 2016); Frensemeier v. State, 849 N.E.2d 157, 164 (Ind.Ct.App. 2006). Degree of Intrusion [¶20] The degree of intrusion was low.......
-
Milo v. State, Court of Appeals Case No. 19A-CR-751
...a ruling on a motion to dismiss a charging information, we take the facts alleged in the information as true. Gutenstein v. State , 59 N.E.3d 984, 994 (Ind. Ct. App. 2016) (citing Pavlovich , 6 N.E.3d at 974 ), trans. denied . " ‘Questions of fact to be decided at trial or facts constitutin......