ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL W. REED STEVE CARTER
Reed & Earhart Attorneys at Law, P.C. Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
MICHAEL R. WIGGINS , ) ) Appellant-Defendant, ) ) vs. ) No. 43A03-0312-CR-498 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
November 17, 2004
OPINION FOR PUBLICATION
Appellants App. p. 26. The trial court denied Wiggins motion and also
denied his motion to certify the trial courts ruling for interlocutory appeal.
A jury trial commenced on November 5, 2003. The State proceeded to trial on Counts I and III, which alleged that Wiggins operated a motor vehicle with a schedule I or II controlled substance or its metabolite in his body causing the death of Terry Wilson (Count I) and causing serious bodily injury to D.W. (Count III). Appellants App. p. 12. The remaining counts were dismissed on the States own motion. At trial, Wiggins renewed his objection to the admission of the results of his urine toxicology test, but his objection was overruled.
The jury found Wiggins guilty on both counts, and on December 1, 2003, the sentencing hearing was held. Wiggins was sentenced to serve consecutive terms of eight years for his Class C felony operating while intoxicated causing death conviction and three years for his Class D felony operating while intoxicated causing serious bodily injury conviction. The trial court also ordered Wiggins drivers license and driving privileges suspended for two consecutive terms of five years. See footnote Wiggins now appeals. Additional facts will be provided as necessary.
Id. at 543-44 (record citations omitted). Accordingly, we held that the police
officers testimony was insufficient to establish probable cause to compel the defendant to
submit to a blood draw. Id. at 544.
More recently, in Schlesinger v. State, 811 N.E.2d 964, 966 (Ind. Ct. App. 2004), trans. denied, the appellant argued that the trial court abused its discretion when it admitted the results of a toxicology blood test because the test was obtained without a warrant and was not necessary for the defendants medical care. Like Wiggins, Schlesinger argued that the police officer did not have probable cause that his blood would contain evidence of alcohol or illegal substances. Id. at 967. The police officer was aware that Schlesinger had consumed alcoholic beverages earlier in the evening, however, after the accident, Schlesinger performed correctly on each of the field sobriety tests administered. Id. Moreover, the police officers actions demonstrated that he did not believe he had probable cause to obtain the blood sample. In completing the hospital form for release of the blood sample, the officer did not indicate on the form that he believed he had probable cause where he was asked to check a box to indicate why the sample was obtained. Id. Therefore, we concluded that the police officer lacked probable cause to order the blood draw. Id. After also holding that Schlesinger did not consent to the blood draw and that the blood alcohol content test was not performed for medical reasons, we reversed his conviction. Id. at 968.
In this case, Deputy Tyler did not properly attain Wiggins consent to a portable breath test or chemical test under Indianas Implied Consent Law and did not even seek Wiggins consent before ordering the urine test. We also observe that on a hospital form entitled Forensic Drug Testing Custody and Control Form, under the section titled Reason for the Test, only the box for post accident was checked; the box for reasonable suspicion/cause was not marked. See footnote Ex. Vol., States Exs. 4 and 7. At the hearing on the motion to suppress,See footnote Deputy Tyler testified that at the time of the accident, it was the standard policy of the Sheriffs Department to require a blood and/or urine sample in all accidents involving serious bodily injury or death. Tr. p. 22. He also stated that his request for Wiggins blood and urine samples was based on a combination of both probable cause and the standard operating procedure of the department. Tr. p. 9.
When asked to identify each factor used to determine probable cause that Wiggins was intoxicated, Deputy Tyler responded:
I would start with the driving behavior prior to the crash. Where he made a left turn in front of a vehicle and failed to yield the right of way. Then when attempting to clarify something like his address and where he lived, there was some confusion as to what his address was. And when there were two conflicting documents, there was a difficulty determining which ones correct. I seem to recall there was some difficulty in answering the questions as to who his insurance carrier was at the time. I asked him if it was the same one on his insurance . . . registration and he had some confusion as to who that would be. There was [sic] some statements as to what actually occurred at the crash. Whether he saw the motorcycle beforehand or if it came off a side street.
Tr. pp. 19-20. However, Deputy Tyler also stated that he did not observe any physical signs of intoxication. Tr. pp. 7-8. We also note that during Deputy Tylers questioning of Wiggins, Wiggins was being treated by medical personnel. Tr. p. 8 (It was difficult to determine exactly what [Wiggins] state was because he was being restrained at the hospital, according to their procedures, when he was laying [sic] on the board being attended to. And at the scene he was being attended to by medical personnel.).
With regard to Wiggins confusion over his address, during cross-examination of Deputy Tyler, the following exchange occurred:
DEFENSE COUNSEL: Okay. Once he got his drivers license out what did you do?
TYLER: I had already, I believe, Id already obtained his registration from his vehicle. There was a discrepancy on the two. One had a physical address on his license and I believe it was a PO box on the registration. I attempted to clarify which was correct or if they were both correct and just asked him a direct question, which is your current address? [W]here do you live?
DEFENSE COUNSEL: And what did he tell you?
TYLER: He had some confusion as to which one was correct. It was determined that it was the North Webster address that was the correct one.
DEFENSE COUNSEL: Did you . . . When you asked that question, did you give him a choice or did you merely ask him what his address was?
TYLER: Well, I had both documents and I said, which is correct? Gave him . . . Which is the current address? Where do you live?
DEFENSE COUNSEL: Did you say, your drivers license says this and your registration says this or did you say, your drivers license says one address and registration says another, without specifying the address where he lived?
TYLER: I believe I said, that there were two addresses and I would like to know which one was the correct one.
Tr. pp. 14-15.
Deputy Tyler also gave the following testimony concerning Wiggins statements regarding the accident:
TYLER: Id asked him what had happened in the crash. He told me that he didnt see the motorcycle. And then a few sentences later he made the comment that he thought he came off a side street. So there was some confusion in the statements about the actual occurrences that led up to the crash.
Tr. pp. 17-18.
Finally, with regard to testimony concerning Wiggins confusion over his insurance carrier, the following exchange occurred:
TYLER: As I recall I was crouched down next to him and had both the document[s] in my hand and I . . . is this insurance carrier, correct? And it is my common practice to have that in my hand and thats the first indication that I have an insurance carrier. Is this correct? Is State Farm your insurance carrier? I think that was in this case.
DEFENSE COUNSEL: And he was confused as far as what?
TYLER: He could not, I dont believe, he gave me a definitive answer. It was kind of like, his response was not definitive. It wasnt, yeah thats the correct one, no thats it, its changed to, whatever the insurance company would be. I think . . .
DEFENSE COUSNEL: Was it, I dont know or I cant say?
TYLER: I dont know if I ever got a yes its this one or no its not this carrier.
DEFENSEL COUNSEL: So . . .
TYLER: My recollection tells me that the answer ended up being, whatevers on there is correct. And we went with that one being correct.
Tr. pp. 20-21.
Upon review of Deputy Tylers testimony, it is clear that Wiggins had some difficulty answering Tylers questions following the accident while he was being treated at the scene and in the emergency room by medical personnel. But, without some objectively observed clear indication of intoxication, such as dilated pupils, telltale odor or failed field sobriety test(s), under Indianas Implied Consent Law, Wiggins difficulty in answering Deputy Tylers questions under these circumstances is not significant enough, by itself, to provide the probable cause required for the blood and urine tests ordered by Tyler under Duncan and Schmerber. Deputy Tyler therefore lacked the probable cause necessary to compel Wiggins to submit to a blood draw and urine test, and we conclude that the urine toxicology test results should not have been admitted into evidence at trial.
Finally, we observe that pursuant to Indiana Code section 9-30-6-6(a), a physician or other person who has obtained the results of a chemical test on a persons blood or urine is required to deliver the results or the sample itself to a law enforcement officer who requests them as part of a criminal investigation. See Hannoy, 789 N.E.2d at 990; Ind. Code § 9-30-6-6(a) (1992 & Supp. 2003). In Hannoy, our court held that under section 9-30-6-6(a) law enforcement officers may acquire test results that medical personnel have obtained during the normal course of treatment. Id. at 991-92 (To the extent Hannoy does have an expectation of privacy in his medical records generally, we conclude that in Indiana at least, society does not recognize a reasonable expectation of privacy in blood alcohol test results obtained and recorded by a hospital as part of its consensual treatment of a patient, where those results are requested by law enforcement for law enforcement purposes only in the investigation of an automobile accident.). See footnote
In this case, in its findings of fact and conclusions of law, the trial court denied Wiggins motion to suppress in regard to the test results obtained by medical personnel where the tests were performed for purposes of diagnosis and treatment. Appellants App. p. 30. Importantly, however, there is no evidence in the record that any tests results revealing the presence of marijuana metabolites in Wiggins body were performed for the purpose of either diagnosis or treatment. The trial courts finding is therefore clearly erroneous. See Hannoy, 789 N.E.2d at 981 (Findings of fact are clearly erroneous only when the record lacks any evidence to support them.). Furthermore, the State only argues that Deputy Tyler had probable cause to believe that Wiggins was intoxicated and does not contend that Wiggins urine toxicology test results were obtained during the normal course of medical treatment.
Finally, we must determine whether the admission of Wiggins urine toxicology test results was harmless error. Where evidentiary error has occurred, reversal is not required if it is apparent that the fact finder did not rely upon the improper evidence in reaching the verdict. Hannoy, 789 N.E.2d at 899. We must consider the probable impact of the evidence upon the fact finder when we determine whether improper evidence was relied upon in reaching the verdict. Id. Our court may conclude that the fact finder did not rely upon improper evidence where there was other overwhelming evidence of guilt. Id.
In this case, the urine toxicology test was the only evidence admitted which established that Wiggins operated a motor vehicle with a controlled substance or its metabolite in his body causing the death of Terry Wilson and serious bodily injury to D.W. Accordingly, we cannot conclude that the erroneous admission of the urine toxicology test results was harmless and we must therefore reverse Wiggins convictions.
BARNES, J., and CRONE, J., concur.