Attorney for Appellant Attorneys for Appellee
John F. Crawford Steve Carter
Crawford & DeVane Attorney General of
Indiana
Indianapolis, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 49S04-0501-CR-29
Lanny D. Abney,
APPELLANT (DEFENDANT BELOW),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the Marion Superior Court, Criminal Division, No. 49G03-9909-CF-
164322
The Honorable Cale J. Bradford, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0307-
CR-380
_________________________________
January 27, 2005
Rucker, Justice.
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).
Discussion
Indiana Code § 9-30-6-6(g) provides:
A physician or a person trained in obtaining bodily substance
samples and acting under the direction of or under a protocol
prepared by a physician shall obtain a blood, urine, or other
bodily substance sample if the following exist:
(1) A law enforcement officer requests that the sample be
obtained.
(2) The law enforcement officer has certified in writing the
following:
(A) That the officer has probable cause to believe the
person from whom the sample is to be obtained has
violated IC 9-30-5.
(B) That the person from whom the sample is to be
obtained has been transported to a hospital or other
medical facility.
(C) That the person from whom the sample is to be
obtained has been involved in a motor vehicle
accident that resulted in the serious bodily injury
or death of another.
(D) That the accident that caused the serious bodily
injury or death of another occurred not more than
three (3) hours before the time the sample is
requested.
3) Not more than the use of reasonable force is necessary to
obtain the sample.
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 intoxication over to the State by refusing to draw a blood
sample or conduct a chemical test. Subsection (g) permits the
State to require a reluctant physician to draw a blood sample,
when certain conditions are met.
Id. at 1110 (citation and footnotes omitted).
Subsequent Court of Appeals opinions cited Robbins for the proposition
that subsection (g) is only applicable when a physician refuses to draw
blood. See, e.g., Guy, 678 N.E.2d at 1134 (“I.C. § 9-30-6-6(g) was
intended to assist law enforcement officers in obtaining evidence of
intoxication by providing them with a mechanism to compel reluctant
physicians to draw blood samples . . .”); Spriggs, 671 N.E.2d at 472
(“subsection (g) applies only when a physician refuses to draw a blood
sample.”); Glasscock v. State, 576 N.E.2d 600, 604 (Ind. Ct. App. 1991)
(“Subsection (g) does not apply when the physician is not reluctant to draw
the blood sample.”) trans. denied. Acknowledging Robbins, Spriggs, and
Guy, the Court of Appeals in this case said, “to the extent that we have
held subsection (g) is only applicable when a physician refuses to draw
blood, we disagree with those cases.” Abney, 811 N.E.2d at 422. Abney
complains that the physician here did not refuse to draw a blood sample.
Thus, according to Abney, subsection (g) did not apply and the Court of
Appeals erred in not following Robbins and its progeny.
Indiana’s implied consent statutes provide the State with a mechanism
necessary to obtain evidence of a driver’s intoxication in order to keep
Indiana highways safe by removing the threat posed by the presence of drunk
drivers. Brown v. State, 774 N.E.2d 1001, 1005 (Ind. Ct. App. 2002). As
the Court of Appeals has observed, Indiana Code § 9-30-6-6(g) is designed
as a tool to acquire evidence of blood alcohol content rather than as a
device to exclude evidence. Guy, 678 N.E.2d at 1134; Spriggs, 671 N.E.2d
at 472. In our view, limiting Indiana Code § 9-30-6-6(g) to those
instances in which a physician refuses to draw blood is inconsistent with
the intent of the implied consent statutes. Contrary language in Robbins,
Glasscock, Spriggs, and Guy is hereby disapproved. We therefore grant
Abney’s petition to transfer and adopt the opinion of the Court of Appeals
in this case.
Conclusion
We affirm the judgment of the trial court.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
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[1] DNA testing later confirmed that Abney’s car had struck Heffernan.