Howard B. Gutenstein v. State of Indiana , 2016 Ind. App. LEXIS 324 ( 2016 )

FILED
Aug 31 2016, 9:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
John Mark Vouga Gregory F. Zoeller
Nicholas Barnes Attorney General of Indiana
Vouga & Associates, LLC
Portage, Indiana Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Howard B. Gutenstein, August 31, 2016
Appellant-Defendant, Court of Appeals Case No.
46A04-1511-CR-1892
v. Appeal from the LaPorte Superior
Court
State of Indiana, The Honorable Michael S.
Appellee-Plaintiff. Bergerson, Judge
Trial Court Cause No.
46D01-1304-FC-157
Brown, Judge.
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[1] In this interlocutory appeal, Howard B. Gutenstein appeals the trial court’s
order denying his motion to dismiss and motion to suppress evidence of his
blood alcohol concentration. Gutenstein raises three issues which we
consolidate and restate as:
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
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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 damage and with its lights off in front of the white semi.
[4] Leeth hobbled towards Trooper Escutia and spoke to him in a clear concise
voice. Trooper Escutia then observed Gutenstein on the ditch grass area
walking very slowly toward him and being “[j]ust nonchalant.” Id. at 19-20.
As Trooper Escutia spoke to Leeth and Gutenstein, Gutenstein “really didn’t
say anything,” and Leeth was “just doing all the talking and . . . Gutenstein just
remained quiet.” Id. at 20. Trooper Escutia asked Gutenstein what happened,
and Gutenstein said: “I’m just sleepy and tired.” Id. Trooper Escutia asked
Gutenstein if he had been drinking, and Gutenstein just said that he was tired.
Trooper Escutia smelled the odor of alcohol coming from Gutenstein and
observed that Gutenstein “seemed confused” and had “no idea what had
happened or transpired at the accident.” Id. at 32. Gutenstein also had
bloodshot eyes that were “kind of glassy” and he spoke with a “very slow draw
[sic].” Id. at 34.
[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
1
Trooper Escutia testified that he graduated from the State Academy on December 21, 2013, was an FTO
for three months, and that the collision occurred during his first week on solo patrol.
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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].
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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:
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.
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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.
[9] At 4:45 a.m., Trooper Escutia filled out a form titled “Law Enforcement
Officer’s Certification To Physician of Death or Serious Bodily Injury.” Id.2
The form, which was signed by Trooper Escutia, stated in part that he was
requesting that Julie Whistler obtain a sample of blood pursuant to Ind. Code §
9-30-6-6(g) and that he had probable cause to believe that Gutenstein operated a
vehicle while intoxicated, with a controlled substance in his body, or with
unlawful blood alcohol content. Id.[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
2
At the hearing, during cross-examination of Trooper Escutia, Gutenstein’s counsel asked: “If you believed
you had consent, why did you additionally fill out [the form titled Law Enforcement Officer’s Certification
To Physician of Death or Serious Bodily Injury]?” Transcript at 42. Trooper Escutia answered: “Because
that’s how I was instructed to do it by the more experienced trooper, sir.” Id. at 43.
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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 Lunn’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 the Fourth
Amendment to the United States Constitution and Article 1, Section 11 of the
Indiana Constitution.
[13] On September 18, 2015, the court held a hearing on Gutenstein’s motions.
Trooper Escutia and Detective Boswell testified. During Trooper Escutia’s
testimony, the form including the Miranda warning and the implied consent
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warning was discussed, and Trooper Escutia testified that he made a mistake by
signing on those lines and that “I took it as understanding that as I checked
marked it, because I’m the one that read it to him, I was going to sign, sir.” Id.
at 47. On redirect examination, the prosecutor asked Trooper Escutia whether
Gutenstein consented to the blood draw, and Trooper Escutia answered: “Yes.”
Id. at 49. Upon questioning by the court, Trooper Escutia testified that he
explained the implied consent responsibilities and Miranda warnings on two
different occasions. He testified that Gutenstein verbally indicated that he
understood the implied consent warnings and his rights under Miranda. When
asked how Gutenstein indicated to him that he understood him, Trooper
Escutia answered: “He said, yes.” Id. at 58.
[14] Trooper Escutia also testified that the police received a dispatch that the
individual that was driving the car was walking around the ditch or the canal
area of I-94 prior to the crash and was walking away from the accident. The
following exchange occurred during the redirect examination of Trooper
Escutia:
Q . . . At that point, and, and when this accident occurred was
there any, I think you had testified Mr. Gutenstein was not in the
car at the time of the actual crash –
A No.
Q -- between the – okay, he was out on the, on the side of the
highway?
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A Yes.
Id. at 51-52. At one point, the court asked Trooper Escutia what Leeth told
him, and Trooper Escutia answered:
[T]he gray Audi was making unsafe lane movements and he was
unable to get around the subject’s vehicle traffic in the adjacent
lane. He then followed the gray Audi and called 911 to advise
that the D3, which is the, Mr. Gutenstein’s driving behavior. As
I, as he continued to talk to dispatch and advised the driver here
very uh, he slowed down – Mr. Gutenstein’s vehicle slowed
down in the right lane to 25 miles per hour. And the witness had
stated that he stayed behind the V3, which is the – Mr.
Gutenstein’s vehicle, with his hazards activated on his semi.
He then advised that the gray Audi stopped and his – stopped his
vehicle in the right lane, and then he then attempted to stop
behind the gray Audi with his hazards activated. And he was
stopped about 10 feet, and as he attempted to exit his vehicle, he
was struck in the rear by Mr. Lunn.
Id. at 53-54.
[15] After the presentation of evidence, Gutenstein’s counsel argued the issues raised
in his motion to dismiss and motion to suppress. He contended that
Gutenstein’s driving behavior could be explained by any number of things
including a narcoleptic episode, and stated that he wanted to address an issue
that was not in his memorandum of law which was the issue of operation, and
he asserted that Gutenstein was not operating his vehicle at the time of the fatal
accident.
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[16] The prosecutor stated:
I think, and this is the crux of the whole matter is [the] causation
issue. I think we’re, we’re in agreement on that. It becomes the
issue of, from the testimony that we heard from the officer,
basically, the car, we, we all know the car is parked in the, the far
right lane. And it’s – it has its lights off. It’s locked. And he was
not in the vehicle at the time. . . . Because we have to go beyond,
and it becomes a legal issue I think. You know, when you have
those facts is, is that foreseeable that, that him parking, is that
causation? Him causing that chain of events? And, and frankly,
I think that’s, that’s what the Court has to make a determination
on, is because of the, the case law I read on the operation, is it
enough that he operated his vehicle? Because we have operation.
. . . It’s not a situation where the car is just parked out there. We
know we have that operation. We have operating while
intoxicated. The issue is, does it end? When, when does the –
when does it end? When does the operation end?
Id. at 91-92. He later stated: “I know back in 2013 there was an obstruction of
traffic statute that’s now been repealed, I think it’s in 2014, that may have been
the more appropriate rather than, you know, reckless homicide or the
obstruction of, of traffic would probably have been causing death, because
that’s kind of the situation is that, he didn’t operate his vehicle, but he put his
vehicle there in the way that it caused a serious accident.” Id. at 94-95. After
some discussion, the prosecutor spoke and appeared to refer to statements by
Leeth who did not testify at the hearing. Specifically, the prosecutor stated:
And the, and the timing it – when Mr. Leeth was here, he said
something that I thought was very interesting. He said that he
saw Mr. Gutenstein stop his vehicle, turn off the lights, and get
out of the car when he was still a half mile behind him. And, and
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that was something that to me when I heard him say that, that
was – and I asked him afterwards to talk to his counsel I said,
that’s, that’s new information to me, because I thought he was
following him. He said he was following him, I thought he was
following him closely, but he’s talking about following him even
more further back, and that kind of pushes that time back. And
he has enough time to get out of his car and talk to him before
the accident occurs. So that – and that’s the issue, Your Honor,
is, is that enough causation? Is him just – the mere presence of
him operating his vehicle and parking it there on the highway, is
that enough to prove causation? And I think that becomes a legal
issue for the Court to make a determination on, because I think
the facts are clear. There, there’s no issue that Mr. Leeth stopped
his vehicle, was able to get out of his car, go up to him and talk to
Mr. Gutenstein and then he saw Mr. Lunn’s, Lunn’s vehicle
coming up and he decided to either, either go to the second lane
of the highway to get out of the way or go back in his cab? And
he chose to go back in his cab, because he wanted to go for the
safety of his, of his vehicle versus that he didn’t want to prohibit
Mr., if Mr. Lunn was to go to the left, instead of going to the
right, and Mr. Lunn chose to go to the right. And I think if he’d
gone to the left we, we would be in uh, uh, it may have been a
fatality of Mr. Leeth, you know, because the accident would
have went the other direction, the forces and all that.
So, I think, I think really, it really comes down to a legal issue. Is
that a sufficient for the State, him parking his vehicle to cause – is
that causation for both, on Counts I and Count II?
Id. at 96.
[17] The court then asked the prosecutor if he was saying Gutenstein’s motion to
dismiss should be granted or denied. The prosecutor stated that it would leave
that to the court’s determination, that he could see both sides of the argument,
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and that he saw an argument that he could make for causation. When asked by
the court what argument he was going to make, the prosecutor stated:
The argument is that, but for him parking the car there, this
would not have occurred. And, and – but, but is that a proper
argument? That almost becomes like the negligence argument,
that it’s, it’s gross negligence. And I, and I see under the case
law that operation of the vehicle, that you need to operate – you
have to show causation by the operation of the vehicle.
Id. at 97. After further discussion, the prosecutor stated that he did not want
the court to dismiss the case.
[18] On September 29, 2015, the court denied Gutenstein’s motions. The court’s
order states in part:
LEGAL CONCLUSIONS
1. Count I of the Charging Information is not defective under
I.C. 35-34-1-4 because it does recite facts that constitute the
alleged offense. See “Facts alleged by State” in Defendant’s
Memorandum of Law.
2. Count II of the Charging Information is not defective under
I.C. 35-34-1-4 because it does recite facts that constitute the
alleged offense. See “Facts alleged by State” in Defendant’s
Memorandum of Law.
3. The factual allegations, if taken as true, support the theory
that the defendant’s conduct: a) was the actual and proximate
cause of the accident that resulted in Mr. Lunn’s death
(Bowman v. State 564 N.E. 2nd 309), and b) that the result
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was the “natural and probable” consequence of the
defendant’s conduct, ie. foreseeable. Id.
4. The alleged facts in support of Count II, Reckless Homicide,
are sufficient to survive the Motion to Dismiss. The facts
alleged in the charging information are not the basis upon
which a jury convicts; they are allegations supporting the
charge. See “Facts Alleged by State” in Defendant’s
memorandum of Law.
5. The implied consent statutes are designed to give law
enforcement officers the authority to perform chemical tests
on drivers who are either thought to be intoxicated or those
who have been involved in an accident involving a fatality or
serious bodily injury. Abney v. State, 811 N.E.2d 415, 419-420
(Ind. [Ct. App.] 2004)[, adopted by 821 N.E.2d 375 (Ind.
2005)].
6. Under chapter six of the Indiana Implied Consent laws, a
person impliedly consents to a chemical test through the
operation of a vehicle. See I.C. 9-30-6-1.
7. Trooper Escutia did not lack probable cause to conduct a
chemical test. The Defendant was involved in an accident in
which a death occurred; an odor of alcohol was detected and
the defendant’s eyes were glassy. Defendant was observed
wandering near the scene seemingly indifferent to what had
occurred.
8. Regardless of Trooper Escutia’s failure to obtain the written
consent of the defendant, the evidence supports the
conclusion that the defendant knowingly and voluntarily
consented to the blood test both in word and in deed.
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9. At no time on April 25, 2014 did the defendant indicate that
he suffered from narcolepsy.
Appellant’s Appendix at 99-100.
Discussion
I.
[19] The first issue is whether the trial court abused its discretion in denying
Gutenstein’s motion to dismiss Counts I and II. We review a trial court’s ruling
on a motion to dismiss a charging information for an abuse of discretion, which
occurs only if a trial court’s decision is clearly against the logic and effect of the
facts and circumstances. An-Hung Yao v. State, 975 N.E.2d 1273, 1276 (Ind.
2012). A trial court also abuses its discretion when it misinterprets the law. Id.[20] At the outset, we observe that Gutenstein’s motion to dismiss alleged that
Counts I and II must be dismissed under Ind. Code § 35-34-1-4(a)(5) which
provides that “[t]he court may, upon motion of the defendant, dismiss the
indictment or information upon any of the following grounds . . . [t]he facts
stated do not constitute an offense.” In his memorandum of law in support of
his motion to dismiss, he also referenced Ind. Code § 35-34-1-4(a)(11), which
provides that the court may dismiss the indictment or information upon “[a]ny
other ground that is a basis for dismissal as a matter of law.”
[21] In deciding whether an information fails to state facts constituting an offense,
we take the facts alleged in the information as true. Pavlovich v. State, 6 N.E.3d
969, 974 (Ind. Ct. App. 2014), trans. denied. Facts permitted to be raised in a
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motion to dismiss a charging information generally concern only pre-trial
procedural matters, such as jurisdictional issues, double jeopardy, collateral
estoppel, and the like. Id. (citing State v. King, 502 N.E.2d 1366, 1369 (Ind. Ct.
App. 1987)). “Questions of fact to be decided at trial or facts constituting a
defense are not properly raised by a motion to dismiss.” State v. Isaacs, 794
N.E.2d 1120, 1122 (Ind. Ct. App. 2003). “It is only when an information is
facially deficient in stating an alleged crime that dismissal for failure to state an
offense is warranted.” Pavlovich, 6 N.E.3d at 969; see also Isaacs, 794 N.E.2d at
1123 (holding dismissal of charge was warranted where information alleged
defendant operated a vehicle with a schedule I or II controlled substance in the
body, but substances alleged to be in defendant’s body were schedule IV
controlled substances or non-controlled substances, and it was not a crime to
operate a vehicle with such substances in the body).
[22] Gutenstein’s arguments address the specificity of the charging informations,
whether his conduct as alleged could constitute reckless homicide, causation,
and his operation of the vehicle. We address these arguments separately.
A. Specificity
[23] At the time of the offense and charging information, Ind. Code § 35-34-1-2provided in part:
(a) The indictment or information shall be in writing and allege
the commission of an offense by:
*****
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(2) stating the name of the offense in the words of the
statute or any other words conveying the same meaning;
(3) citing the statutory provision alleged to have been
violated, except that any failure to include such a citation
or any error in such a citation does not constitute grounds
for reversal of a conviction where the defendant was not
otherwise misled as to the nature of the charges against the
defendant;
(4) setting forth the nature and elements of the offense
charged in plain and concise language without
unnecessary repetition;
(5) stating the date of the offense with sufficient
particularity to show that the offense was committed
within the period of limitations applicable to that offense;
(6) stating the time of the offense as definitely as can be
done if time is of the essence of the offense . . . .
*****
(d) The indictment or information shall be a plain, concise, and
definite written statement of the essential facts constituting the
offense charged. It need not contain a formal commencement, a
formal conclusion, or any other matter not necessary to the
statement. Presumptions of law and matters of which judicial
notice is taken need not be stated.
(Subsequently amended by Pub. L. No. 85-2013, § 115 (eff. July 1, 2013)).
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[24] Gutenstein argues that the State failed to allege facts constituting the offenses
charged and that the clear logic and effect of the facts and circumstances
compel the conclusion that he was improperly charged. He asserts that the
charging information for Count I was facially defective because it failed to set
forth the approximate time at which he was alleged to have operated his motor
vehicle, as well as the time the accident occurred as required under Ind. Code §
35-34-1-2(a)(6). He contends that this information is critical as the State is
required to show that his blood sample was collected within three hours from
the time he was operating his motor vehicle in order to presumptively relate his
chemical test results back to the alleged time of operation. He also posits that
the charging information did not contain facts to show operation of a vehicle,
signs of intoxication, the actions that caused Lunn’s death, or even allege that
he was operating a motor vehicle that was involved in an accident. The State’s
position is that the charging informations were sufficiently specific and that,
even if a deficiency in the pleading existed, then amendment of the information
and not dismissal of the charge would be the appropriate remedy.
[25] As to Count II, Gutenstein concedes that the charging information appears to
meet the minimum requirements of Ind. Code § 35-34-1-2(a), but asserts that
the information still fails to state the essential facts alleged in support of the
charged offense as required under Ind. Code § 35-34-1-2(d). He argues that the
charging information in Count II is so fatally defective that it is impossible for
him to discern what conduct the State is alleging to be reckless.
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[26] “The State is not required to include detailed factual allegations in a charging
information.” Laney v. State, 868 N.E.2d 561, 567 (Ind. Ct. App. 2007), trans.
denied. “An information that enables an accused, the court, and the jury to
determine the crime for which conviction is sought satisfies due process. Errors
in the information are fatal only if they mislead the defendant or fail to give him
notice of the charge filed against him.” Dickenson v. State, 835 N.E.2d 542, 550
(Ind. Ct. App. 2005) (citations and quotation marks omitted), trans. denied.
“[W]here a charging instrument may lack appropriate factual detail, additional
materials such as the probable cause affidavit supporting the charging
instrument may be taken into account in assessing whether a defendant has
been apprised of the charges against him.” State v. Laker, 939 N.E.2d 1111,
1113 (Ind. Ct. App. 2010), trans. denied.
[27] In Count I, operating a motor vehicle while intoxicated causing death as a class
C felony, the State alleged:
On or about the 25th day of April, 2013, at or about Mile Marker
43 in the eastbound lane of I-94, LaPorte County, State of
Indiana, Howard B. Gutenstein did cause the death of another
person, namely Steve Lunn, while operating a motor vehicle with
at least eight-hundredths gram (0.08) of alcohol concentration in
the defendant’s blood, to-wit: .13% serum, plasma or blood.
Appellant’s Appendix at 13 (italics, capitalization, and bold removed). At the
time of the offense, Ind. Code § 9-30-5-5 provided in part that “[a] person who
causes the death of another person when operating a vehicle . . . with an alcohol
concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per
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. . . one hundred (100) milliliters of the person’s blood . . . commits a Class C
felony.”3
[28] We cannot say that the charging information for Count I was facially deficient.
To the extent that Gutenstein asserts that the State did not provide the time that
he operated the vehicle, we observe that he argues, without citation to the
record, that “the State chose not to file a probable cause affidavit in support of
the charging information; thus, the charging information alone must contain a
statement of facts constituting the offenses charged in Counts I and II.”
Appellant’s Brief at 30. While the record does not contain a copy of the
probable cause affidavit, the record suggests that it was filed along with the
charging information. The second page of the charging information states:
“This affidavit having been filed in open court this 26th day of April, 2013,
together with supporting testimony of Det. Scott Boswell with a finding thereon
of probable cause for issuance of a warrant(s) for the arrest” of Gutenstein.
Appellant’s Appendix at 14. Further, Gutenstein filed a Motion to Preserve
Evidence in July 2013, which stated: “In reading the information and the
probable cause affidavit filed with it . . . .” Id. at 28 (emphasis added). As noted,
we have previously reviewed an attached probable cause affidavit in addressing
whether a charging information is defective. See Laker, 939 N.E.2d at 1113(“Here, the underlying allegations reveal two potential subject vehicles—a
3
Subsequently amended by Pub. L. No. 158-2013, § 161 (eff. July 1, 2014); and Pub. L. No. 26-2016, § 1 (eff.
July 1, 2016).
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Lexus and a farm tractor. None of the State’s charges specifies which of the
vehicles Laker is alleged to have illegally driven. However, the attached
probable cause affidavit and summons tickets clarify that the State’s charges are
based specifically on Laker’s farm tractor. We therefore find no fatal
uncertainty in the State’s charging information.”). While the fact that
Gutenstein did not include the probable cause affidavit in his appendix does not
result in waiver,4 he fails to cite to the record for the assertion that the probable
cause affidavit was not filed despite the record, including his own admission
suggesting otherwise, and he does not assert that the probable cause affidavit
did not include a time that he allegedly operated the vehicle. Moreover, as
pointed out by the State, the evidence presented at the hearing provided details
regarding the time of the crash and the time at which Gutenstein’s blood was
drawn. Further, Gutenstein’s memorandum in support of his motion to dismiss
states under the heading “Facts Alleged by the State” that he was driving on I-
94 at approximately 2:00 a.m. and refers to an Indiana State Police Incident
Report. Appellant’s Appendix at 69 (capitalization, underlining, and bold
removed).
[29] In Count II, reckless homicide as a class C felony, the State alleged that “[o]n
or about the 25th day of April 2013, at or about the Mile Marker 43 in the
Eastbound Lane I-94, LaPorte County, State of Indiana, Howard B. Gutenstein
4
Ind. Appellate Rule 49(B) provides that “[a]ny party’s failure to include any item in an Appendix shall not
waive any issue or argument.”
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did recklessly kill another human being, to-wit: Steve Lunn.” Id. at 13
(capitalization and bold removed). At the time of the offense, Ind. Code § 35-
42-1-5 provided that “[a] person who recklessly kills another human being
commits reckless homicide, a Class C felony.” 5 The charging information for
Count II tracks the language of the relevant statute and alleges the commission
of every necessary element of the crime. Gutenstein also does not assert that
the probable cause affidavit, which he admitted to the trial court was filed with
the charging information, did not include additional facts. We cannot say that
the charging information for Count II was facially deficient or that the trial
court abused its discretion by denying Gutenstein’s motion to dismiss on this
basis.
B. Reckless Homicide
[30] Gutenstein asserts that the facts alleged by the State fail to support a reasonable
inference that he recklessly killed Lunn as a matter of law. He contends that if
the State is alleging that leaving his parked car on the highway as he stood
along the side of the road is a reckless act, then his conduct did not substantially
deviate from acceptable standards of conduct because Leeth also parked his
semi in the same lane and exited his vehicle. 6 The State argues that a jury could
conclude that Gutenstein’s conduct was reckless and caused Lunn’s death.
5
Subsequently amended by Pub. L. No. 158-2013, § 415 (eff. July 1, 2014).
6
Gutenstein asserts that the State admitted that its own allegations merely support a finding of negligence or
gross negligence and that a charge related to the obstruction of traffic may have been the more appropriate
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[31] Ind. Code § 35-41-2-2 provides that “[a] person engages in conduct ‘recklessly’
if he engages in the conduct in plain, conscious, and unjustifiable disregard of
harm that might result and the disregard involves a substantial deviation from
acceptable standards of conduct.” “Proof that an accident arose out of the
inadvertence, lack of attention, forgetfulness or thoughtfulness of the driver of a
vehicle, or from an error of judgment on his part, will not support a charge of
reckless homicide.” Whitaker v. State, 778 N.E.2d 423, 425 (Ind. Ct. App. 2002)
(quoting Beeman v. State, 232 Ind. 683, 690, 115 N.E.2d 919, 922 (1953)). We
have previously held:
[R]elatively slight deviations from the traffic code, even if they
technically rise to the level of “reckless driving,” do not
necessarily support a reckless homicide conviction if someone is
subsequently killed. Some gross deviations from the traffic code,
however, may under certain circumstances be such a substantial
departure from acceptable standards of conduct that they will
support a reckless homicide conviction, such as ignoring traffic
signals at a high rate of speed, driving on a dark road at night
without headlights, or intentionally crossing the centerline
without a legitimate reason for doing so. Speed may support a
reckless homicide conviction, but only greatly excessive speeds,
such as twenty or more miles per hour over the posted speed
limit, or where inclement weather and poor road conditions
render higher speeds greatly unreasonable.
charge. We cannot say that the prosecutor’s comments support Gutenstein’s statement that the State
admitted that its allegations merely support a finding of negligence or gross negligence, particularly where the
prosecutor ultimately stated that he did not want the court to dismiss the case.
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Id. at 426.
[32] Based upon the charging information and the facts developed at the hearing, we
cannot say that a driver who stops his car in the middle of a travel lane of an
interstate highway at 2:00 a.m. and turns off the lights does not act recklessly as
a matter of law. Accordingly, we cannot say that the trial court abused its
discretion in denying Gutenstein’s motion to dismiss on this basis. 7
C. Causation
[33] Gutenstein argues that the trial court erroneously interpreted and applied the
law as it relates to causation with respect to both Counts I and II, and that the
clear logic and effect of the facts and circumstances before the trial court fail as
a matter of law to support a reasonable inference that his conduct was the legal
cause of the collision. He argues that the State cannot show that he was the
proximate cause of the collision where he was not operating his motor vehicle
7
Gutenstein discusses DeVaney v. State, 259 Ind. 483, 288 N.E.2d 732 (1972), and Whitaker v. State, 778
N.E.2d 423 (Ind. Ct. App. 2002). We find that these cases are distinguishable and do not require reversal. In
DeVaney, the Court held: “Can the mere fact that it was shown that appellant crossed the center line while
driving be considered driving ‘with reckless disregard for the safety of others’? We think not. Such an
occurrence could be completely accidental.” 259 Ind. at 493, 288 N.E.2d at 738. The Court also held: “Can
the mere fact that defendant was driving in close proximity to the time he had been drinking be sufficient to
find ‘reckless disregard for the safety of others’? We think not. Although the evidence of intoxication could
certainly be considered by the jury, see Patton v. State (1962), 242 Ind. 477, 179 N.E.2d 867, that alone is not
sufficient to convict for reckless homicide.” Id. The Court concluded that the facts that the defendant
crossed the center line and was intoxicated were insufficient to constitute reckless homicide. Id. Whitaker
involved “a non-intoxicated, well-rested truck driver who drove slightly above the speed limit and arguably
followed too closely behind another vehicle on a clear, dry day, with undeniably tragic results.” 778 N.E.2d
at 428. We held that “where there is evidence of non-excessive speeding and some inconclusive indication of
failing to maintain a proper interval, this is insufficient to establish guilt of reckless homicide beyond a
reasonable doubt for a death resulting from a motor vehicle collision.” Id.Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016 Page 23 of 39
at the time of the collision, his vehicle was not physically involved in the
collision at all, and the collision resulted directly from Lunn’s act of driving into
the back of Leeth’s semi.
[34] The State’s position is that the trial court properly refused Gutenstein’s request
because the factual issues he raised should be first addressed by a jury, and that
a jury could conclude that both Leeth and Lunn’s actions were reasonably
foreseeable responses to Gutenstein’s conduct. The State asserts that “[e]ven if
enough time elapsed that one can infer that Lunn could have stopped if he had
been paying close attention to road conditions, which cannot be discerned from
the present record, a jury must still decide whether Lunn’s inattention was so
unforeseeable as to be an intervening cause relieving Defendant of
responsibility.” Appellee’s Brief at 38. The State contends that Gutenstein is
not entitled to have his charges dismissed merely because he may raise some
evidence suggesting another cause contributed to the fatal collision.
[35] The Indiana Supreme Court discussed causation in Abney v. State, 766 N.E.2d
1175 (Ind. 2002). In that case, the Court rejected the argument that proof that
the defendant’s conduct was a contributing cause was all that was necessary to
sustain a conviction under Ind. Code § 9-30-5-5 and held:
As we stated in Micinski [v. State, 487 N.E.2d 150 (Ind. 1986),]
“[a]nalysis of [Ind. Code § 9-30-5-5] should focus on the driver’s
acts. . . . If the driver’s conduct caused the injury, he commits
the crime; if someone else’s conduct caused the injury, he is not
guilty.” 487 N.E.2d at 154. This is simply a short-handed way
of stating the well-settled rule that the State must prove the
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defendant’s conduct was a proximate cause of the victim’s injury
or death. Boswell v. State, 250 Ind. 607, 609, 238 N.E.2d 283, 285
(1968) (citing, inter alia, Dunville v. State, 188 Ind. 373, 379, 123
N.E. 689, 691 (1919)); Warner v. State, 577 N.E.2d 267, 270 (Ind.
Ct. App. 1991). This was the basis for Abney’s defense that,
although his vehicle struck Heffernan’s body, the evidence
tended to show that another vehicle struck Heffernan first and
threw Heffernan into Abney’s vehicle. If the trier of fact accepts
Abney’s scenario, Abney’s driving may not have been a
proximate cause of Heffernan’s death.
766 N.E.2d at 1177-1178.8 We have previously held that “proximate cause
questions are often couched in terms of ‘foreseeability’; an actor is not held
responsible for consequences which are unforeseeable. In Indiana, a result is
deemed foreseeable if it is a ‘natural and probable consequence’ of the act of the
defendant. Bowman v. State, 564 N.E.2d 309, 313 (Ind. Ct. App. 1990) (quoting
Outlaw v. State, 484 N.E.2d 10, 13 (Ind. 1985)), summarily aff’d in relevant part and
vacated in part, 577 N.E.2d 569 (Ind. 1991).
[36] The Court in Abney suggested that the issue of causation was one for the trier of
fact by stating “[i]f the trier of fact accepts Abney’s scenario, Abney’s driving
may not have been a proximate cause of Heffernan’s death.” 766 N.E.2d at
1178. See also Rippy v. State, 493 N.E.2d 477, 480 (Ind. Ct. App. 1986) (“Rippy
claims that Hogan’s own intoxication was an intervening cause of the accident.
However, causation is a question for the trier of fact. Pollard [v. State, 439
8
The version of Ind. Code § 9-30-5-5 addressed in Abney provided that a person who violates Ind. Code § 9-
30-5-1 commits a Class C felony “if the crime results in the death of another person.” 766 N.E.2d at 1177.
Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016 Page 25 of 39
N.E.2d 177 (Ind. Ct. App. 1982), reh’g denied]. Here, as in Micinski, Rippy
presented a theory that the victim was at fault. As in Micinski, the trier of fact
was entitled to reject Rippy’s theory of defense based upon the evidence
presented.”), reh’g denied, trans. denied.
[37] The record supports that Gutenstein stopped his vehicle in the right lane of I-94
shortly after 2:00 a.m. and turned off the lights on his vehicle, and Leeth
stopped his semi and activated his hazard lights in an attempt to warn other
drivers. We cannot say that the trial court abused its discretion in denying
Gutenstein’s motion to dismiss on this basis.
D. Operating
[38] Gutenstein argues that the court erred in failing to dismiss Count I, operating a
motor vehicle while intoxicated causing death, because he was not operating his
vehicle at the time of the collision, and the plain language of Ind. Code § 9-30-
5-5 requires a showing that the defendant was, at the very least, operating his
vehicle at the time of the accident. The State contends that the statute requires
only that the person’s state of intoxication coincide with his operation of the
vehicle and that the operation cause the death of another person.
[39] At the time of the offense, Ind. Code § 9-13-2-117.5 provided that “[o]perate”
“means to navigate a vehicle.”9 Navigate is generally defined as “[t]o plan,
9
Subsequently amended by Pub. L. No. 85-2013, § 16 (eff. July 1, 2013); Pub. L. No. 259-2013, § 4 (eff. July
1, 2013); and Pub. L. No. 198-2016, § 138 (eff. July 1, 2016).
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record, and control the course and position of . . . .” THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1173 (4th ed. 2006).
[40] As noted by the State on appeal, there is no clear evidence in the record
regarding how much time elapsed between the time Gutenstein parked his car
on I-94 and the time Lunn’s semi struck Leeth’s semi and that no one who was
present at the time of the accident testified at the hearing. Trooper Escutia
testified that the police received a dispatch that the individual who was driving
the car was walking around the ditch or the canal area of I-94 prior to the crash
and was walking away from the accident and that Leeth told him that the car
stopped, that he stopped his semi, and that Lunn struck his semi as he
attempted to exit his semi. However, the prosecutor suggested that Gutenstein
exited his vehicle and that Leeth had completely exited his vehicle and talked to
Gutenstein prior to the collision. In his reply brief, while Gutenstein argues
that he was not operating his vehicle at the time of the collision and cites to the
prosecutor’s comments to support his assertion that Leeth exited his vehicle,
spoke to Gutenstein, saw Lunn approaching at an unsafe speed, and ran back to
his semi prior to the collision, he also states in another section that the facts
alleged “fail to establish either the time at which Mr. Gutenstein last operated
his vehicle or the time at which the accident occurred.” Appellant’s Reply Brief
at 21.
[41] Even if Gutenstein was not inside his vehicle at the moment when Lunn’s semi
struck Leeth’s semi, we cannot say that this fact standing alone means, as a
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matter of law, that he was not “operating” the vehicle for purposes of the
statute.
[42] At least under certain circumstances, other courts have held that a person who
uses a motor vehicle and places that vehicle in a position posing a significant
risk of causing a collision constitutes operating a vehicle. See People v. Wood,
538 N.W.2d 351, 353 (Mich. 1995) (concluding that “‘operating’ should be
defined in terms of the danger the operating under the influence of liquor statute
seeks to prevent: the collision of a vehicle being operated by a person under the
influence of intoxicating liquor with other persons or property. Once a person
using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a
position posing a significant risk of causing a collision, such a person continues
to operate it until the vehicle is returned to a position posing no such risk.”);
People v. Lechleitner, 804 N.W.2d 345, 347-348 (Mich. Ct. App. 2010)
(addressing statutes that set forth penalties for a person who “operates a motor
vehicle” while intoxicated “and by the operation of that motor vehicle causes
the death of another person,” define “operate” and “operating” as “being in
actual physical control of a vehicle,” and “operator” as “every person, other
than a chauffeur, who is in actual physical control of a motor vehicle upon a
highway,” and holding that “[t]he statute does not require that the defendant’s
vehicle be in motion at the time of the accident, but rather that the victim’s
death be caused by the defendant’s operation of the vehicle while intoxicated.
In this case, defendant was intoxicated, operated his vehicle, and crashed it,
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with the result that it sat in the middle of the freeway at night creating a risk of
injury or death to others.”), appeal denied.
[43] Under the circumstances we cannot say that the trial court abused its discretion
by denying Gutenstein’s motion to dismiss on this basis.
II.
[44] The next issue is whether the trial court erred in denying Gutenstein’s motion
to suppress. Gutenstein argues that he never gave his express consent to search
and the State failed to prove, under the totality of the circumstances, that it
obtained his knowing and voluntary consent. He asserts that the coercion that
renders his consent involuntary “arises from an impermissibly intimidating
environment” and that his “‘so-called consent’ can amount to no more than a
passive submission to the supremacy of law.” Appellant’s Brief at 15. He
contends that he was taken into custody before Trooper Escutia’s request for
consent, that the trial court’s legal conclusions erroneously presume that the
implied consent statute authorizes a warrantless blood draw in all cases
involving a fatal collision, and that the court failed to appropriately analyze
whether his consent was freely and voluntarily given under the totality of the
circumstances. He asserts that the implied consent laws are administrative in
nature and do not lessen the Fourth Amendment requirement that warrantless
blood draws are justified only by proof of either a knowing and voluntary
consent or the existence of both probable cause and exigent circumstances, and
that the exigent circumstances exception does not justify the blood draw.
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[45] The State maintains that the trial court properly denied Gutenstein’s motion to
suppress because he consented to the blood draw and, even if he had not, police
had lawful authority to take a nonconsensual blood sample under the
circumstances. The State asserts that the fact that Gutenstein did not sign the
forms waiving his rights and giving consent was only because Trooper Escutia,
who was a new officer, misunderstood the forms and believed he was required
to sign them himself to affirm that Gutenstein had been read, understood, and
waived his rights and gave consent to the blood draw. The State also argues
that the police presence at the scene was in response to a fatal accident
involving two semis on the interstate and police attention was focused on Lunn
and the accident scene. The State further posits that the fact the police post
informed Trooper Escutia that he needed to obtain a blood sample from
Gutenstein did not influence the voluntariness of the consent because there was
no evidence that Trooper Escutia conveyed the message to Gutenstein. Finally,
the State notes that the record indicates that, other than a few preliminary
questions about the accident, Trooper Escutia only spoke to Gutenstein as
necessary to read him his rights, confirm Gutenstein understood, and obtain his
consent.
[46] The admission of evidence is entrusted to the trial court’s sound discretion.
Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). “We review a trial court’s
denial of a defendant’s motion to suppress deferentially, construing conflicting
evidence in the light most favorable to the ruling, but we will also consider any
substantial and uncontested evidence favorable to the defendant.” Id. “We
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defer to the trial court’s findings of fact unless they are clearly erroneous, and
we will not reweigh the evidence.” Id. “When the trial court’s denial of a
defendant’s motion to suppress concerns the constitutionality of a search or
seizure, however, it presents a question of law, and we address that question de
novo.” Id.A. Fourth Amendment
[47] The Fourth Amendment provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
U.S. CONST. amend. IV.
[48] The taking of a blood sample is a search. Birchfield v. North Dakota, 136 S. Ct.
2160, 2173 (2016). Normally, the Fourth Amendment is satisfied when police
obtain a warrant. Garcia-Torres v. State, 949 N.E.2d 1229, 1237 (Ind. 2011). A
warrant is not required, however, when there is consent to search. Garcia-
Torres, 949 N.E.2d at 1237. Consent to search is valid when it is given
voluntarily, and voluntariness is a question of fact determined from the totality
of the circumstances. Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93
S. Ct. 2041 (1972)). Voluntariness is not vitiated merely because the defendant
is in custody. Id. (quoting United States v. Watson, 423 U.S. 411, 424, 96 S. Ct.
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820 (1976)). Although a failure to provide Miranda warnings is a factor to be
considered in the totality of the circumstances analysis, it is not dispositive. Id.The Fourth Amendment does not require a Miranda warning before officers ask
for consent to search. Id. “It is well established that a search is reasonable
when the subject consents and that sometimes consent to a search need not be
express but may be fairly inferred from context.” Birchfield, 136 S. Ct. at 2185
(citations omitted).
[49] To the extent Gutenstein argues that Trooper Escutia asserted implicit and
unlawful claims of authority over him through continuing violations of his
Fourth Amendment rights, we disagree. Gutenstein contends that Trooper
Escutia patted him down and “removed his keys from his left pants pocket,
without an explanation or a request for consent, and used them to unlock Mr.
Gutenstein’s parked car, open the glove compartment, and take Mr.
Gutenstein’s vehicle registration.” Appellant’s Brief at 18 (citing Transcript at
50-51). The portion of the transcript cited by Gutenstein indicates that Trooper
Escutia testified that the keys were located in Gutenstein’s left pocket of his
pants, but does not indicate that Trooper Escutia patted Gutenstein down,
removed the keys from his pocket, or failed to ask Gutenstein for his consent to
unlock his car or access the glove compartment.
[50] Gutenstein also contends that Trooper Escutia illegally seized him when he
placed him in the patrol vehicle because he did not have probable cause to
arrest him. Gutenstein posits that “[b]y his own admission, Trooper Escutia’s
[sic] determined that he had probable cause to arrest Mr. Gutenstein based
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solely on the odor of alcohol and the fact that there had been a fatal collision.”
Appellant’s Brief at 17 (citing Transcript at 35). The portion of the transcript
cited by Gutenstein indicates that Trooper Escutia based his finding of probable
cause on the two facts mentioned by Gutenstein, as well as his observation that
Gutenstein may have been under the influence of alcohol. During direct
examination of Trooper Escutia, the following exchange occurred:
Q . . . So then basically your probable cause at the scene was
that – for the, for the blood test was the fatality at the scene or the
serious bodily injury, plus your observation that he may have
been under the influence of alcohol?
A And his odor, sir.
Q And his – that’s what I mean, the odor?
A Yes.
Transcript at 35. During cross-examination, Gutenstein’s counsel questioned
Trooper Escutia regarding the form titled “Law Enforcement Officer’s
Certification To Physician of Death or Serious Bodily Injury,” which stated that
Trooper Escutia had probable cause to believe that Gutenstein operated a
vehicle while intoxicated. State’s Exhibit 1. Trooper Escutia testified that he
signed his name to the form certifying that he had probable cause to believe that
Gutenstein had committed the act of operating while intoxicated based upon
his observing the odor of alcoholic beverages and his behavior at the crash
scene including “how he was walking slow,” “his slow draw [sic],” his
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bloodshot and glassy eyes, and his “ability to be nonchalant and unconcerned
for what had just happened.” Transcript at 44. We cannot say that Trooper
Escutia did not have probable cause to place Gutenstein in his patrol vehicle.
See State v. Gilbert, 997 N.E.2d 414, 417 (Ind. Ct. App. 2013) (holding that an
officer’s detection of a strong odor of alcohol coming from the defendant and
observation that the defendant ran a stop sign and stumbled while attempting to
exit his vehicle were sufficient to constitute probable cause and that the
defendant’s arrest and transportation to the roll call site did not violate his rights
under the Fourth Amendment).
[51] While Trooper Escutia placed Gutenstein in handcuffs and in the front seat of
his police vehicle, we cannot say that this act rendered Gutenstein’s consent
involuntary. The record reveals that Trooper Escutia read Gutenstein his
Miranda rights and the implied consent warning while he was in the patrol
vehicle. Specifically, Trooper Escutia informed Gutenstein that he had the
opportunity to submit to a chemical test and of the consequences for failing to
take the test. Trooper Escutia testified that Gutenstein verbally indicated that
he understood his rights under Miranda and the implied consent warnings.
Trooper Escutia told Gutenstein that he was going to take him to the hospital
for a blood draw, and Gutenstein stated: “[Y]es.” Transcript at 56.
[52] At the hospital, Trooper Escutia gave Gutenstein a printed sheet of the Miranda
warning and read and went through a form containing a Miranda warning and
an implied consent warning with him. A part of the form again informed
Gutenstein that he had the opportunity to submit to a chemical test and
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informed him of the consequences of refusing. Trooper Escutia and the
phlebotomist explained to Gutenstein that there was going be blood drawn
from his body. Trooper Escutia testified that Gutenstein acknowledged that he
understood his rights and consented to the blood draw. Gutenstein was not
handcuffed and did not voice any objection or concern when his blood was
drawn.
[53] Under the circumstances, we conclude that Gutenstein’s consent was voluntary.
Accordingly, the blood draw was not a violation of the Fourth Amendment.
See Garcia-Torres, 949 N.E.2d at 1237 (holding that the defendant consented to a
cheek swab where the officer described the procedure and asked defendant if it
was okay, the defendant answered “no problem,” the defendant opened his
mouth and cooperated and was helpful through the entire procedure); Cochran
v. State, 771 N.E.2d 104, 108 (Ind. Ct. App. 2002) (holding that the trial court
properly denied the defendant’s motion to suppress his chemical test results
where the defendant consented to the chemical testing), trans. denied.10
10
Gutenstein cites Thurman v. State, 602 N.E.2d 548 (Ind. Ct. App. 1992), trans. denied, and argues that this
case compels the same conclusion. In Thurman, five or six police officers swooped in on the defendant and
his companions, blocking their exit and ordering them out of a vehicle, and the defendant and the others
were then forced to keep their hands on the vehicle while each one was patted down. 602 N.E.2d at 552. A
detective later testified that he asked the defendant for permission to remove paperwork out of the glove
compartment and the defendant consented. Id. On appeal, the court noted that the consent occurred while
the defendant was surrounded by five other officers and still being forced to keep his hands on the vehicle and
was not advised of his Miranda rights nor informed in any way that he could refuse the detective’s request.
Id. The court concluded that “[g]iven this intimidating atmosphere, [the defendant’s] consent was merely
submission to the supremacy of the law rather than a voluntary relinquishment of a known right.” Id. at 552.
We find Thurman distinguishable.
Gutenstein also argues that “the trial court’s conclusions suggest that the State bear[s] the burden of proving a
knowing and voluntary consent only where it first fails to establish compliance with the implied consent
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C. Article 1, Section 11
[54] Article 1, Section 11 of the Indiana Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall
not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
seized.
[55] Although its text mirrors the federal Fourth Amendment, we interpret Article 1,
§ 11 of our Indiana Constitution separately and independently. Robinson, 5
N.E.3d at 368. “When a defendant raises a Section 11 claim, the State must
show the police conduct ‘was reasonable under the totality of the
circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d 1200, 1205-1206
(Ind. 2008), reh’g denied). “We consider three factors when evaluating
reasonableness: ‘1) the degree of concern, suspicion, or knowledge that a
violation has occurred, 2) the degree of intrusion the method of the search or
seizure imposes on the citizen’s ordinary activities, and 3) the extent of law
enforcement needs.’” Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind.
2005)).
statute.” Appellant’s Brief at 19. The trial court’s order states in part: “Regardless of Trooper Escutia’s
failure to obtain the written consent of the defendant, the evidence supports the conclusion that the defendant
knowingly and voluntarily consented to the blood test both in word and in deed.” Appellant’s Appendix at
100. Given that the trial court found that Gutenstein consented to the blood draw and we cannot say that the
trial court abused its discretion in doing so, we need not address the impact of the implied consent statute.
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[56] Gutenstein contends that the degree of suspicion is moderate at best given that
he was not questioned about and never admitted to his operation of his motor
vehicle, he never admitted to drinking, and there was no evidence that either he
or his vehicle was actually involved in the collision, and that the intrusiveness
of the search is high where it involves a nonconsensual warrantless blood draw.
As for the extent of law enforcement needs, Gutenstein maintains that there
was no evidence of any special needs of law enforcement to justify a
nonconsensual warrantless blood draw. The State’s position is that the blood
draw was reasonable under the totality of the circumstances.
[57] We consider “the degree of concern, suspicion, or knowledge that a violation
has occurred.” Litchfield, 824 N.E.2d at 361. When Trooper Escutia arrived at
the scene he discovered a semi with heavy damage and a severely injured Lunn
inside. He learned that the vehicle driven by Gutenstein had previously made
unsafe lane movements, slowed down to twenty-five miles per hour, and then
stopped in the right lane of I-94. Gutenstein walked very slowly toward him
and when Trooper Escutia asked him if he had been drinking, Gutenstein said
that he was just tired. Trooper Escutia smelled the odor of alcohol coming
from Gutenstein and observed that he “seemed confused,” had “no idea what
had happened or transpired at the accident,” had bloodshot eyes that were
“kind of glassy,” and he spoke with a “very slow draw [sic].” Transcript at 32,
34. We conclude that the degree of concern, suspicion, or knowledge that a
violation had occurred was high.
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[58] Regarding the degree of intrusion, the record reveals that Trooper Escutia twice
informed Gutenstein of his Miranda rights and Indiana’s implied consent law,
and informed him of the opportunity to submit to a chemical test. Gutenstein
verbally indicated that he understood his rights and the implied consent
warnings. Trooper Escutia and the phlebotomist explained to Gutenstein that
there was going to be blood drawn from his body. He consented to the blood
draw and did not voice any objection or concern when his blood was drawn.
Under these circumstances, this degree of intrusion was not high.
[59] We note that the Indiana Supreme Court has observed that few Hoosiers would
dispute the heartbreaking effects of drunk driving in our state and that law
enforcement has a strong interest in preventing crashes involving alcohol-
impaired drivers. See Robinson, 5 N.E.3d at 368; see also Frensemeier v. State, 849
N.E.2d 157, 164 (Ind. Ct. App. 2006) (addressing a defendant’s claim that a
blood draw violated Article 1, Section 11 of the Indiana Constitution, and
observing that the law enforcement needs were great in this instance, given the
desire to remove intoxicated drivers from our highways and the motor vehicle
accident resulted in injuries to both drivers), reh’g denied, trans. denied. Under
the totality of the circumstances, we conclude that the blood draw was
reasonable and did not violate Gutenstein’s rights under Article 1, Section 11 of
the Indiana Constitution.
Conclusion
[60] For the foregoing reasons, we affirm the trial court’s denial of Gutenstein’s
motion to dismiss and motion to suppress.
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[61] Affirmed.
Baker, J., and May, J., concur.
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