Attorney for Appellant Attorneys for Appellee
John F. Crawford Steve Carter
Crawford & DeVane Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indiana Supreme Court
Lanny D. Abney,
Appellant (Defendant below),
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
Facts and Procedural History
On July 9, 1999, shortly before 3:00 a.m., deputies of the Marion County
Sheriffs 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 drivers 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 Abneys car.
Officer Simmons arrested Abney and read to him Indianas 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 Sheriffs Deputy William Atkinson arrived at the hosp
ital. 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?
Appellants 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 Abneys 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 States petition to transfer in order to clarify certain
points of law. In the end we agreed with the Court of
Appeals and also reversed Abneys 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 Abneys
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 o
btained 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 i
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
Not more than the use of reasonable force is necessary to obtain the
I.C. § 9-30-6-6(g)
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.
Indianas implied consent statutes provide the State with a mechanism necessary to obtain
evidence of a drivers 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 Abneys 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.
DNA testing later confirmed that Abneys car had struck Heffernan.