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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana Court of Appeals reversed the denial of a woman’s motion to suppress a blood sample taken after a police officer suspected her of drunken driving. The judges found the affidavit did not contain specific information alleging the woman drove a vehicle.
The police officer stopped Tonya Herron’s car and filled out a probable cause affidavit for a blood draw when she declined to submit to a chemical test. The officer suspected that she was intoxicated. The affidavit contained boilerplate text regarding the crime of operating a vehicle/motor vehicle while intoxicated, but the officer never filled in specific information to support that Herron was driving a vehicle. His affidavit does mention reasons for suspecting Herron was intoxicated.
The judge signed the warrant and a blood sample was taken, which Herron sought to suppress after she was charged with two drunken-driving charges. The trial court denied her motion, leading to interlocutory appeal in Tonya Herron v. State of Indiana, 49A04-1504-CR-149.
The state made four arguments as to why the affidavit is valid, but the appeals court rejected them all, including that the Implied Consent Law, at issue here and mentioned in the boilerplate text, only applies to drivers.
“This argument fails. This is precisely the type of ‘legal technician’ argument warned against in Gates. Although we do presume that officers know and follow the law, nothing in Indiana Code section 9-30-6 et seq. forbids an officer from offering a chemical test for intoxication to a passenger or a pedestrian. We cannot agree that an officer reading a law to an individual creates probable cause to believe that individual violated a law,” Judge John Baker wrote.
The COA also decided the good faith exception does not apply and so the warrant in this case was invalid.
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