                                                                              FILED
                                                                        Dec 29 2017, 11:27 am

                                                                              CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
Rory Gallagher                                            George P. Sherman
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Monica Dycus,                                             December 29, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A05-1705-CR-978
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable David J. Certo,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable David Hooper,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G12-1601-CM-1053



Riley, Judge.




Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017                      Page 1 of 21
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Monica Dycus (Dycus), appeals her conviction for

      operating a vehicle while intoxicated endangering a person, a Class A

      misdemeanor, Ind. Code § 9-30-5-2(a).


[2]   We reverse and remand for a new trial.


                                                    ISSUES
[3]   Dycus presents this court with two issues on appeal, which we restate as:


      (1) Whether the trial court abused its discretion by admitting chain of custody

      forms from the Indiana State Department of Toxicology in violation of her

      Right to Confrontation under the United States Constitution; and


      (2) Whether a person in custody must be advised of the right to counsel before

      being able to validly consent to a drug recognition exam.


                      FACTS AND PROCEDURAL HISTORY
[4]   On January 8, 2016, El-Hadj Barry (Barry) noticed his ex-girlfriend, Dycus,

      following him when he was on his way to pick up a female friend from school.

      Barry pulled over and told Dycus to stop tailing him. Dycus did not respond

      and continued to follow Barry to the school. After picking up his friend, Barry

      decided to drive around for a while in an attempt to lose Dycus. However,

      Dycus “was shouting” at Barry “every time [he] came to a stop. She was

      tailgating.” (Transcript p. 87). Barry observed Dycus swerving and if he



      Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 2 of 21
      “accidentally would have made a quick stop, she would have hit [his] car.” (Tr.

      p. 87). Barry’s friend called 911.


[5]   Indianapolis Metropolitan Police Department Officer Christopher Cooper

      (Officer Cooper) was dispatched to the area near 16th Street and Lafayette Road

      in response to the 911 call. When Officer Cooper arrived at the intersection,

      Barry and Dycus were stopped at a red light. Dycus’ “driver’s door was

      opened. [Dycus] ha[d] one foot on the pavement. The other foot was on the

      brake. And, she was leaning out of the car window yelling at the vehicle in

      front of her.” (Tr. p. 103). Officer Cooper activated his emergency lights.

      Approaching Dycus’ car, he requested her identification and instructed her to

      remain in the vehicle. After speaking with Barry and checking his information,

      Officer Cooper informed him that he was free to leave.


[6]   Officer Cooper continued to detain Dycus because he believed she was driving

      on a suspended license. While speaking with her, the officer noticed the “odor

      of marijuana coming from her breath.” (Tr. p. 107). Dycus told Officer Cooper

      that “there was nothing in her vehicle, [and] that her and her mom had smoked

      marijuana about an hour before.” (Tr. p. 107). At that point, Officer Cooper

      radioed for backup, requesting for the help of Indianapolis Metropolitan Police

      Officer Christopher Winter (Officer Winter), who is certified to conduct a drug

      recognition evaluation (DRE). Upon arriving, Officer Winter asked Dycus to

      perform a field sobriety test. While conducting the field sobriety test, Officer

      Winter smelled “a strong odor of marijuana coming from her when she spoke.

      It was so strong that [the officers] thought that she had some hidden on her

      Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 3 of 21
      somewhere.” (Tr. p. 118). Dycus passed the horizontal gaze nystagmus test,

      which indicated that she was not under the influence of alcohol. She failed the

      walk-and-turn test and the one-legged stand test. Dycus consented to a certified

      breath test, which returned negative for the presence of alcohol. However,

      while performing the breath test at the IMPD Northwest office, Officer Winter

      observed a green, leafy substance in Dycus’ mouth and “a green streak going

      down her tongue.” (Tr. p. 130).


[7]   Officer Winter advised Dycus that the signs that she was impaired were not

      consistent with the negative alcohol results and asked Dycus if she would

      submit to a DRE. A DRE is a standardized, 12-step program designed to

      determine whether an individual is impaired by the use of drugs based on the

      totality of the evaluation. Pursuant to the DRE guidelines, it is possible to infer

      the type of substance that caused the impairment by using a seven-category 1

      evaluation matrix. During the exam, which also includes three behavioral tests,

      Officer Winter took Dycus’ temperature with an oral thermometer, he

      measured her blood pressure, and examined her arms. He illuminated her nasal

      cavities with a flashlight to look inside. He ordered Dycus to open her mouth

      and examined the inside. Officer Winter measured Dycus’ pupil size in three

      different lighting conditions. Some parts of the DRE took place in a pitch black

      room—in this case, a closet at IMPD’s northwest office. Officer Winter entered




      1
        These seven categories are: (1) central nervous system depressants, (2) central nervous system stimulants,
      (3) hallucinogens, (4) PCP, (5) inhalants, (6) cannabis, and (7) narcotic analgesics. (State’s Exh. 8).

      Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017                       Page 4 of 21
       all the observations of Dycus’ DRE into a “drug symptom matrix.” See State’s

       Exh. 8). At the conclusion of the thirty-minute DRE, Officer Winter concluded

       that Dycus was under the influence of marijuana.


[8]    Dycus consented to a blood draw and was transported to Eskenazi hospital. A

       nurse at Eskenazi drew two vials of blood from Dycus and handed the blood

       samples to Officer Winter, who sealed them with evidence tape, signed his

       name, and transported the blood samples to the IMPD property room.

       According to the Indiana State Department of Toxicology Analysis Request

       Form, the blood samples were then received by Indianapolis Metropolitan

       Police Officer Michael Duke, who transported the vials to the Indiana State

       Department of Toxicology (ISDT) for testing. ISTD assigned an identifying

       number to the blood samples and the vials were subsequently shipped via

       FedEx to National Medical Services (NMS).


[9]    NMS is an accredited laboratory, located in Pennsylvania. ISDT outsources

       some of its casework to NMS, including blood tests for marijuana. NMS lab

       support specialist Samantha Hill (Hill) prepared the blood sample for testing,

       and NMS forensic scientist Craig Leopold analyzed the sample, which tested

       positive for Delta-9 THC in the amount of 3.0 ng/ml. Delta-9 THC is an active

       metabolite of marijuana with psychoactive effects, and which “generally shows

       impairment at around a level of one nanogram per milliliter.” (Tr. p. 227).


[10]   On January 9, 2016, the State filed an Information, charging Dycus with Count

       I, operating a vehicle while intoxicated endangering a person, a Class A


       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 5 of 21
       misdemeanor. On October 27, 2016, the State amended the charging

       Information, adding Count II, operating a vehicle with a controlled schedule I

       or II substance or its metabolite in the person’s body, a Class C misdemeanor.

       On March 16, 2017, the trial court conducted a jury trial. During the trial court

       proceedings, Dycus objected to the admission of the DRE, arguing that the

       officer should have given her a Pirtle 2 advisement prior to requesting her

       consent. Dycus also contended that the admission of the chain of custody

       forms and shipping documents for her blood samples violated her right to

       confrontation. The trial court overruled both objections. At the conclusion of

       the evidence, the jury found Dycus guilty as charged. At the sentencing hearing

       on April 19, 2017, the trial court vacated Count II and sentenced Dycus to 365

       days on Count I, with 361 days suspended to probation.


[11]   Dycus now appeals. Additional facts will be provided as necessary.


                                 DISCUSSION AND DECISION
                                                 I. Standard of Review


[12]   Generally, “[a] trial court has broad discretion in ruling on the admissibility of

       evidence and we will disturb its rulings only where it is shown that the court

       abused that discretion.” Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). A

       trial court abuses its discretion if its decision is clearly against the logic and




       2
         Pirtle v. State, 323 N.E.2d 634 (Ind. 1975), stands for the proposition that the Indiana Constitution requires
       that a person in custody be informed of the right to consult with counsel prior to consenting to a search.

       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017                          Page 6 of 21
       effect of the facts and circumstances before the court or if the court misapplies

       the law. Mack v. State, 23 N.E.3d 742, 750 (Ind. Ct. App. 2014), trans. denied.

       But where, as here, a constitutional violation is alleged, the proper standard of

       appellate review is de novo. Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013), cert.

       denied, 134 S.Ct. 2299 (2014).


                                 II. Admission of Chain of Custody Exhibits


[13]   As an issue of first impression, Dycus contends that the trial court violated her

       Sixth Amendment Right to Confrontation by admitting formal documents from

       the ISDT to establish a detailed chain of custody without presenting live

       testimony. Maintaining that these documents contain extrajudicial statements

       about the chain of custody of Dycus’ blood sample, Dycus asserts that the

       documents must be susceptible to cross-examination. While recognizing that

       the State was not required to admit those forms, as omissions in the chain of

       custody go towards weight, Dycus argues that once the state moved to admit a

       strict and detailed chain of custody, live testimony was required to preserve her

       Right to Confrontation under the United States Constitution.


[14]   The Confrontation Clause of the Sixth Amendment provides in relevant part

       that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

       confronted with the witnesses against him.” U.S. CONST. AMEND. VI. “[T]his

       bedrock procedural guarantee applies to both federal and state prosecutions.”

       Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177

       (2004). In Crawford, the United States Supreme Court held that the


       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 7 of 21
       Confrontation Clause guarantees a defendant the right to confront all of those

       who bear testimony against him. Id. at 51. Testimonial statements are

       “inadmissible unless the witness appears at trial or, if the witness is unavailable,

       the defendant had a prior opportunity for cross-examination.” Id. at 54. A

       statement is testimonial when “[a] solemn declaration or affirmation [is] made

       for the purpose of establishing or proving some fact,” and this “core class of

       testimonial statements” includes: (1) “ex parte in-court testimony or its

       functional equivalent;” (2) “extrajudicial statements contained in formalized

       testimonial materials;” (3) “statements made under circumstances that would

       lead an objective witness to reasonably believe that the statement would be

       available for use at a later trial;” and (4) “statements taken by police officers in

       the course of interrogation.” Id. at 51-52.


[15]   Five years after Crawford was decided, the Supreme Court considered the

       Confrontation Clause implications of admitting sworn certificates of forensic

       analysts. In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S.Ct. 2527,

       174 L.Ed. 2d 314 (2009), the trial court allowed certified lab reports indicating

       the weight and identity of cocaine to be admitted into evidence. Id. The

       defendant was convicted and his convictions were affirmed by the state appeals

       court. Id. The Supreme Court, by a 5-4 vote, vacated the defendant’s

       conviction, with the majority determining that the “certificates of analysis”

       were “incontrovertibly a solemn declaration or affirmation made for the

       purpose of establishing or proving some fact,” and thus were testimonial in

       nature. Id. at 310. The Court observed that certificates of analysis were


       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 8 of 21
       functionally identical to live in-court testimony, doing “precisely what a witness

       does on direct examination,” and that the analysts who authored them were

       witnesses for Sixth Amendment purposes. Id. at 310-11. The Court, citing its

       decision in Crawford, held that “[a]bsent a showing that the analysts were

       unavailable to testify at trial and that petitioner had a prior opportunity to cross-

       examine them, petitioner was entitled to be confronted with the analysts at

       trial.” Id. (emphasis in original).


[16]   The Court was careful, however, to reject the notion that the prosecution must

       call everyone whose identity is relevant in establishing the chain of custody, the

       authenticity of the sample, or the accuracy of the testing device used to perform

       the analysis. The Melendez-Diaz Court stated:


               [W]e do not hold, and it is not the case, that anyone whose
               testimony may be relevant in establishing the chain of custody,
               authenticity of the sample, or accuracy of the testing device, must
               appear in person as part of the prosecution’s case. While the
               dissent is correct that “[i]t is the obligation of the prosecution to
               establish the chain of custody, . . .” this does not mean that
               everyone who laid hands on the evidence must be called. As
               stated in the dissent’s own quotation, . . . “gaps in the chain [of
               custody] normally go to the weight of the evidence rather than its
               admissibility.” It is up to the prosecution to decide what steps in
               the chain of custody are so crucial as to require evidence; but
               what testimony is introduced must (if the defendant objects) be
               introduced live. Additionally, documents prepared in the regular
               course of equipment maintenance may well qualify as
               nontestimonial records.


       Id. at 311, n.1.


       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 9 of 21
[17]   The Supreme Court once again addressed the scope of the Confrontation

       Clause in Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d

       610 (2011). In Bullcoming, the defendant was charged with driving under the

       influence, and at trial, objected to the prosecution’s attempt to admit a blood

       content analysis report through the testimony of an analyst who did not

       perform or observe the defendant’s blood test. Id. at 651. Instead of calling the

       analyst who signed and certified the forensic report, the prosecution called

       another analyst who had not performed or observed the actual analysis, but was

       familiar with the general testing procedures of the laboratory. Id. The

       Bullcoming Court declined to accept this surrogate testimony, despite the fact

       that the testifying analyst was a “knowledgeable representative of the

       laboratory” who could “explain the lab’s processes and the details of the

       report.” Id. at 673. The Court stated simply: “[t]he accused’s right is to be

       confronted with the analyst who made the certification.” Id. at 652.


[18]   Just as in Melendez-Diaz, the forensic report that was “introduce[d]” in

       Bullcoming “contain[ed] a testimonial certification, made in order to prove a fact

       at a criminal trial.” Id. at 658. Specifically, the report was introduced at trial

       for the substantive purpose of proving the truth of the matter asserted by its out-

       of-court author—namely, that the defendant had a blood-alcohol level of 0.21.

       Id. This was the central fact in question at the defendant’s trial, and it was

       dispositive of his guilt. See id. at 664. The Court emphasized that the forensic

       laboratory report at issue did more than merely report a “machine-generated

       number;” the report verified that the lab had received the blood sample intact

       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 10 of 21
       with the seal unbroken, that the testing analyst performed a particular test in

       accordance with a specific protocol, and that nothing affected the integrity of

       the sample or the validity of the analysis. Id. at 659. In concurrence, Justice

       Sotomayor highlighted the narrow scope of the majority’s decision and

       reaffirmed the proposition that not all of those in the chain of custody are

       required to provide live testimony. Id. at 670. In so doing, Justice Sotomayor

       cited the relevant language of Melendez-Diaz, stating: “[Not] every person noted

       on [the lab] report must testify.” Id at 670 n.2.


[19]   Most recently, in Speers v. State, 999 N.E.2d 850, 855 (Ind. 2013), cert. denied,

       134 S.Ct. 2299 (2014), the sole analyst who conducted the DNA testing and

       prepared the laboratory reports that were introduced as exhibits testified as to

       the results of the testing at trial. However, Speers complained that the

       prosecution had violated his confrontation rights because the technician who

       removed the blood sample from a piece of glass to a swab for testing—but did

       not perform any testing—did not testify at trial. Id. Relying on Melendez-Diaz

       and Bullcoming, our Indiana supreme court concluded that “there is no

       Confrontation Clause violation where the State introduces evidence and links in

       the chain of custody of that evidence are missing. Id. at 855. “Indeed, ‘the

       State need not establish a perfect chain of custody, and any gaps go to the

       weight of the evidence and not its admissibility.’” Id. (citing Kennedy v. State,

       578 N.E.2d 633, 639 (Ind. 1991)).


[20]   Turning to the case at hand, Dycus objected to the State’s Exhibits 9 through

       12, as being testimonial statements admitted in violation of her Right to

       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 11 of 21
       Confrontation. Asserting that the primary purpose of the documents was to

       identify, describe, and vouch for the reliability of the evidence during the

       proceedings, Dycus maintained that the Exhibits constituted “formalized

       extrajudicial statements created for the purpose of prosecution[.]” (Appellant’s

       Br. p. 19). Exhibit 9 is the ISDT’s analysis request form, listing Dycus’ name

       and identifying characteristics, the charge, the submitting agency, and Dycus’

       case number # 16-00359. It includes a specific section on evidence collection

       and chain of custody information, identifying the analyst and task. The form

       does not include any test results. Exhibit 10 is the ISDT case chain of custody

       report for case # 16-00359 and describes twenty separate transfers of Dycus’

       blood sample over a period of nine months. It specifies the dates, times, and

       purposes for which these transfers were made, as well as the person/location

       sending the sample and the person/location receiving the sample. Exhibits 11

       and 12 are ISTD’s shipping manifests, representing that sample # 16-00359 was

       shipped via FedEx, and containing the signatures of the persons sending and

       receiving the sample.


[21]   We find Dycus’ claim that her Confrontation Right was violated to be

       unpersuasive. Dycus’ argument contradicts the plain language of Melendez-

       Diaz, which provides that not every individual who “laid hands” on the

       evidence need to testify to satisfy the Confrontation Clause; rather, only when

       the statement sought to be introduced is testimonial in nature live testimony is

       required. Melendez-Diaz, 557 U.S. at 311 n.1. In analyzing whether a statement

       is testimonial and therefore subject to the protections of the Confrontation


       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 12 of 21
       Clause under Crawford, we apply the “primary purpose test,” in which “we

       objectively evaluate the circumstances in which the encounter occurs and the

       statements and actions of the parties.” Michigan v. Bryant, 562 U.S. 344, 359,

       131 S.Ct. 1143, 1156, 179 L.Ed. 93 (2011). Here, the primary purpose of the

       creation and maintenance of State’s Exhibits 9 through 12 was to document the

       evidence and attempt to accurately account for the samples as they were

       transferred from IMPD’s northwest office to ISTD and ultimately to NMS.

       These chain of evidence forms were not created for the sole purpose of

       providing evidence against the defendant. In fact, none of these Exhibits

       include test results or any evidence that would aid in the prosecution’s burden

       of establishing Dycus’ guilt.


[22]   Moreover, Melendez-Diaz and the other cases relied upon by Dycus are factually

       distinguishable from the case at bar. Melendez-Diaz and Bullcoming all addressed

       situations in which a forensic report was admitted to prove evidentiary facts at

       issue other than, or in addition to, the chain of custody. It was on those

       separate ground that the plaintiffs’ Confrontation Clause challenges focused.

       Here, the testing and certifying analyst testified and was subject to cross-

       examination. The analyst explained in detail the process used to test Dycus’

       blood and testified to the results of the analysis at trial, where the defense was

       provided a full opportunity to cross-examine her. Accordingly, as the State’s

       Exhibits 9 through 11 were not testimonial or created for the purpose of

       prosecuting Dycus, Dycus’ rights under the Confrontation Clause were not

       violated.


       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 13 of 21
                                             III. Pirtle Advisements


[23]   Next, Dycus argues that the trial court abused its discretion by admitting the

       results of the DRE because she was not given a Pirtle advisement before

       conducting the thirty-minute evaluation. Likening the DRE to an unlimited

       search which was quasi-medical in nature, Dycus maintains that she was

       entitled to be advised of her right to speak with counsel prior to submitting to

       the test. In response, the State maintains that because the DRE was not very

       intrusive and is only likely to reveal the presence of drugs, no Pirtle warning was

       necessary.


[24]   Under the Indiana Constitution “‘a person in custody must be informed of the

       right to consult with counsel about the possibility of consenting to a search

       before a valid consent can be given.’” Joyner v. State, 736 N.E.2d 232, 241 (Ind.

       2000) (citing Pirtle v. State, 323 N.E.2d 634, 640 (1975)). In Pirtle, the Indiana

       Supreme Court held that “a person who is asked to give consent to search while

       in police custody is entitled to the presence and advice of counsel prior to

       making the decision whether to give such consent.” Pirtle, 323 N.E.2d at 640.


               [T]he purpose of the Pirtle doctrine is to ensure that no person in
               custody consents to an unlimited search unless []he is fully
               informed of the constitutional rights []he is waiving. The
               purpose of the doctrine is served by the requirement that a person
               in custody be advised that []he may consult with an attorney
               before consenting to the unlimited search.


       Ackerman v. State, 774 N.E.2d 970, 981 (Ind. Ct. App. 2002) (citing Pirtle, 323

       N.E.2d at 640), reh’g denied, trans. denied. This right is unique to Indiana and
       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 14 of 21
       has no parallel under the Federal Constitution. See United States v. LaGrone, 43

       F.3d 332, 337 (7th Cir. 1994) (“A person in custody has no federal constitutional

       right to consult with an attorney before consenting to a search of his property.

       However, the Indiana [C]onsitution does afford such a right.”). And, where a

       defendant’s rights under Pirtle have been violated, the fruits of the search are not

       admissible in court. See Brown v. State, 653 N.E.2d 77, 80 (Ind. 1995).


[25]   We have previously held that the purpose of the Pirtle doctrine would not be

       served by extending that doctrine to apply to field sobriety tests or chemical

       breath tests and that, therefore, a police officer is not required to advise a person

       in custody that he may consult with an attorney before administering field

       sobriety tests or a chemical breath test. See Schmidt v. State, 816 N.E.2d 925,

       944 (Ind. Ct. App. 2004), reh’g denied, trans. denied; Ackerman, 774 N.E.2d at

       982. In addition, we have held that “a person who drives on Indiana’s roads

       has no right to consult with an attorney prior to deciding whether or not to

       submit to a chemical test under the Implied Consent Law.” Dalton v. State, 773

       N.E.2d 332, 335 (Ind. Ct. App. 2002), trans. denied; Datzek v. State, 838 N.E.2d

       1149 (Ind. Ct. App. 2005), reh’g denied, trans. denied. Most recently, our

       supreme court declared that a buccal swab for DNA gathering purposes does

       not require a Pirtle advisement. Garcia-Torres v. State, 949 N.E.2d 1229 (Ind.

       2011).


[26]   In Ackerman, we held that police officers are not required to advise a person in

       custody that he may consult with an attorney before administering field sobriety

       tests and, thus, field sobriety tests are not governed by Pirtle. Ackerman, 774

       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 15 of 21
       N.E.2d at 982. We noted that the only four Indiana opinions in which the

       Indiana Supreme Court has applied the Pirtle doctrine have all addressed police

       searches of either dwellings or automobiles and that the Court “only applied

       Pirtle where, without the suspect’s consent, the search in question was a general,

       unlimited search and would only have been reasonable with probable cause.”

       Id. at 981. Accordingly, we concluded that field sobriety tests “are qualitatively

       different from the general, unlimited searches that concerned the Pirtle court.”

       Id. at 981. We further reasoned that field sobriety tests “are non-invasive[,] take

       little time to administer[,] are narrow in scope[,] and are unlikely to reveal any

       incriminating evidence other than impairment.” Id. Thus, we declined to

       extent the Pirtle doctrine to require the police to advise a person in custody that

       he may consult with an attorney before administering a field sobriety test. Id. at

       982.


[27]   Similarly, in Schmidt, we held that police are not required to advise a person in

       custody that he may consult with an attorney before offering a person a

       chemical breath test. Schmidt, 816 N.E.2d at 944. We reasoned that “[l]ike

       field sobriety tests, chemical breath tests are ‘qualitatively different from the

       general, unlimited searches that concerned the Pirtle court.’” Id. at 943 (quoting

       Ackerman, 774 N.E.2d at 981). We noted that chemical breath tests “reveal

       only whether the suspect has alcohol in his system[,] are narrower in scope and

       more specific than field sobriety tests[, and] take little time to administer.” Id.


[28]   We extended this analysis to chemical blood tests in Datzek. See Datzek, 838

       N.E.2d at 1160. “Like chemical breath tests, chemical blood tests are
       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 16 of 21
       qualitatively different from general unlimited searches that concerned the Pirtle

       court.” Id. Chemical blood tests only reveal the presence of alcohol or drugs in

       a person’s body and take little time to administer. See id. “Furthermore,

       consent to submit to a chemical blood test under Indiana’s implied consent law

       is only consent to submit to an ‘analysis of a person’s blood . . . for the

       determination of the presence of alcohol, a controlled substance, or a drug.’”

       Id.; see I.C. § 9-13-2-22. Therefore, we concluded that “unlike the suspect in

       Pirtle, a suspect who is asked to submit to a chemical blood tests does not

       subject himself to a general search without probable cause.” Id.


[29]   Lastly, in Garcia-Torres, our supreme court declared that “Pirtle and the ensuing

       cases have applied this rule only to the weightiest intrusions.” Garcia-Torres,

       949 N.E.2d at 1238. However, “the intrusion here is slight. The swabbing [for

       DNA] caused no discomfort, and Garcia-Torres has virtually no legitimate

       interest in concealing his identity following his lawful arrest.” Id. at 1239.

       Comparing fingerprinting with a buccal swab, the court noted that “[t]his Court

       has long held that the police are allowed to take fingerprints and other

       identifying physical information from those lawfully arrested.” 3 Id.

       Accordingly, our supreme court opined that a Pirtle advisement is not required

       for a buccal swap. See id.




       3
         Our Supreme Court appeared to find it important that “two witnesses testified at length about how the
       samples taken from Garcia-Torres were used. There is no evidence in the record that the DNA from Garcia-
       Torres’s swab was or will be used for any purpose other than comparing it to the samples in the rape kit and
       from the shoe.” Id. at 1236.

       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017                    Page 17 of 21
[30]   As is clear from Pirtle and its progeny, our case law declines to apply the Pirtle

       doctrine to intrusions that are “slight” and not very “serious,” instead

       seemingly reserving its application to searches of homes and vehicles. Id. at

       1238-39. However, the Indiana Constitution makes no such distinction,

       protecting Hoosiers against “unreasonable searches” of “their persons as well as

       their “houses, papers, and effect.” 4 See Article I, Section 11 Indiana

       Constitution. Accordingly, a person maintains a reasonable expectation of

       privacy in that person’s body and body cavities. See Smith v. State, 744 N.E.2d

       437, 439 (Ind. 2001) (acknowledging a legitimate expectation of privacy in body

       and blood samples). When courts have permitted DNA searches or other

       bodily intrusions, they have done so on the basis that the search is minimally

       intrusive or a statutory exception was present.


[31]   Lacking a statutory exception as in the case of chemical blood tests, the main

       question becomes whether the DRE can be characterized as a limited search,

       only amounting to a slight intrusion into an individual’s privacy. We conclude

       that it cannot. Unlike a blood test which only takes “three minutes” and a field

       sobriety test, which takes “little time to administer,” the DRE in the instant

       case took thirty minutes to conduct. See Datzek, 838 N.E.2d at 1159, 1160.

       Whereas the chemical blood draw and field sobriety tests are qualitatively




       4
         The same is true under the Federal Constitution. As Justice Brennan expressed in writing for the majority
       in Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed. 2d 908 (1966), “Search warrants are
       ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where
       intrusions into the human body are concerned.”

       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017                    Page 18 of 21
       limited, a DRE is all-encompassing and amounts to a quasi-medical

       examination. The evaluation not only includes the field sobriety tests, but also

       involves a detailed search of an individual’s body. The thoroughness of the

       search, including shining a flashlight up a person’s nose, inserting a

       thermometer into an individual’s mouth, inspecting the arms, and placing the

       suspect in a pitch black closet for the sole purpose to measure the reaction of the

       person’s pupil in various lighting conditions are, when taken together, invasive

       and expansive in scope, and resemble a general search. It provides police

       officers not only with possible incriminating evidence, but also with

       information about a person’s general health. Most importantly, unlike the pass-

       fail character of the other tests, the result of the DRE battery of tests must be

       analyzed through a drug symptom matrix, which requires a police officer’s

       subjective assessment of the outcome and which “might be colored by [his]

       primary involvement in the often competitive enterprise of ferreting out crime.”

       See Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 20 L.Ed. 889 (1968). Because

       the DRE is akin to an unlimited search that the Pirtle doctrine is designed to

       protect against, we hold that a person in custody must be advised of his right to

       consult with an attorney prior to consenting to a DRE. As Dycus was not given

       the Pirtle advisement, her consent was invalid as a matter of law and the

       evidence obtained thereby was inadmissible.


[32]   The State now contends that even though Dycus was not informed of her right

       to consult with counsel, the evidence is admissible because the error was

       harmless. Errors in the admission of evidence are to be disregarded as harmless


       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 19 of 21
       unless they affect the substantial rights of a party. Sparkman v. State, 722 N.E.2d

       1259, 1263 (Ind. Ct. App. 2000). In determining whether error in the

       introduction of evidence affected a defendant’s substantial rights, we must

       assess the probable impact of the improperly admitted evidence upon the jury.

       Id. When there is substantial independent evidence of guilt such that it is

       unlikely that the erroneously admitted evidence played a role in the conviction

       or where the offending evidence is merely cumulative of other properly

       admitted evidence, the substantial rights of the party have not been affected,

       and we deem the error harmless. Smith v. State, 839 N.E.2d 780, 784 (Ind. Ct.

       App. 2005).


[33]   Excluding the DRE test and its subsequent result, leaves the State with the

       testimony of Officer Cooper who noticed the smell of marijuana emanating

       from Dycus and who testified to Dycus’ admission that she and her mom had

       smoked marijuana an hour prior to her driving her vehicle. Officer Cooper

       conducted a field sobriety test, which was inconclusive and Officer Winter

       observed a green streak going down Dycus’ tongue. It is undeniable that the

       positive results of the DRE and the subsequent blood test had a powerful

       impact on the jury’s verdict. Therefore, we find it doubtful whether the jury

       would have reached a similar result in the absence of the improperly admitted

       evidence. As the admission of the evidence was not harmless, we reverse the

       verdict and remand for a new trial.




       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 20 of 21
                                              CONCLUSION
[34]   Based on the foregoing, we hold that the admission of ISTD’s chain-of-custody

       forms were not subject to the protection of the Confrontation Clause of the

       United States Constitution under the circumstances before us. However, we

       reverse and remand for a new trial because a person in custody must be advised

       of the right to counsel before being able to validly consent to a DRE.


[35]   We reverse and remand for a new trial.


[36]   Robb, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 49A05-1705-CR-978 | December 29, 2017   Page 21 of 21
