                                                                                   FILED
                                                                               Apr 13 2020, 8:59 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Marc Lopez                                                  Curtis T. Hill, Jr.
      The Marc Lopez Law Firm                                     Attorney General of Indiana
      Indianapolis, Indiana                                       Courtney L. Staton
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
             COURT OF APPEALS OF INDIANA

      Ruel P. Pedigo, III,                                        April 13, 2020
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-CR-1848
                 v.                                               Appeal from the
                                                                  Bartholomew Circuit Court
      State of Indiana,                                           The Honorable
      Appellee-Plaintiff.                                         Kelly S. Benjamin, Judge
                                                                  Trial Court Cause No.
                                                                  03C01-1805-F4-2759



      Kirsch, Judge.


[1]   Ruel P. Pedigo, III (“Pedigo”) was convicted of reckless homicide,1 a Level 5

      felony, causing death when operating a motor vehicle with a schedule I or II




      1
          See Ind. Code § 35-42-1-5.


      Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020                               Page 1 of 27
      controlled substance in the blood2 as a Level 4 felony, and causing serious

      bodily injury when operating a motor vehicle with a schedule I or II controlled

      substance in the body3 as a Level 6 felony and was sentenced to an aggregate

      fifteen-year-sentence. Pedigo appeals his convictions and sentence and raises

      the following restated issues for our review:


                 I.       Whether Indiana Code section 9-30-7-3 permits a law
                          enforcement officer to offer a person more than one
                          portable breath test or chemical test when the officer has
                          reason to believe the person operated a vehicle that was
                          involved in a fatal accident or an accident involving
                          serious bodily injury;


                 II.      Whether the trial court abused its discretion when it
                          admitted Pedigo’s chemical test results into evidence
                          because he asserts that the results were not admissible
                          under Indiana Code section 9-30-6-6; and


                 III.     Whether Pedigo’s sentence is inappropriate in light of the
                          nature of the offense and the character of the offender.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On January 27, 2018, Patrick Bowman (“Bowman”) and Sarah Fliehman

      (“Fliehman”) were driving to the Columbus Bar to have dinner with their




      2
          See Ind. Code § 9-30-5-5(c)(2).
      3
          See Ind. Code § 9-30-5-4(a)(2).


      Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020               Page 2 of 27
      friends. Tr. Vol. III at 338.4 The couple was recently engaged and had just

      purchased a new cabin in Brown County. Id. at 337. On the way to dinner,

      they traveled eastbound on State Road 46 in Bartholomew County in their

      Mazda car and had to stop at a red light at the intersection of State Road 46 and

      Johnson Boulevard. Id. at 338. Shortly after their vehicle had come to a

      complete stop, Pedigo struck their Mazda from behind with his Ford F650 tow

      truck, which was loaded with another vehicle on its flatbed. Tr. Vol. II at 98-99,

      151-52; Tr. Vol. III at 340.


[4]   The collision created a chain reaction, which caused Bowman’s car to collide

      with the other vehicles stopped at the red light. Tr. Vol. III at 261. When this

      chain reaction ended, the tow truck was positioned on top of the Mazda. Tr.

      Vol. II at 72, 207. Immediately after the accident, another individual involved

      in the accident called 911. Id. at 72. When law enforcement and paramedics

      arrived, they attended to the wreckage; Pedigo was still inside of the cab of his

      tow truck. Id. at 73, 82, 101, 163, 230.


[5]   Upon his arrival, paramedic Michael Miles (“Miles”) went to the driver’s side

      of the Mazda to assess Bowman’s injuries. Id. at 207. Bowman was

      unresponsive, and Miles observed that the Mazda had been crushed in around

      Bowman’s body, pushing it against the steering wheel. Id. Based on the

      position of Bowman’s body, it was difficult for Miles to provide care, but Miles



      4
        We note that Volume III of the transcript is not separately paginated, but is instead, consecutively paginated
      from the end of Volume II.

      Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020                                 Page 3 of 27
      was able to reach into the vehicle to check Bowman for a pulse and place an

      electrocardiogram (“EKG”) on him, which registered that Bowman’s heart was

      pulseless but that it may have had electrical activity. Id. at 207-08, 216. Miles

      directed law enforcement to cut Bowman out of the car to be certain that

      Bowman was deceased. Id. at 208. To gain access to Bowman, law

      enforcement officers had to remove the Mazda’s roof, stabilize the tow truck

      because it was still sitting on top of the Mazda, and use a hydraulic ram to

      move the dashboard. Id. Once removed, Bowman’s body was transported to

      an ambulance, where the paramedics were unable to detect any signs of life and

      determined that Bowman was deceased. Id. at 208, 216.


[6]   Fliehman also suffered serious injuries in the accident and sustained a

      laceration from the top of her scalp to her neck, a severe concussion, a broken

      nose, an abrasion on her eye, and a broken left arm. Tr. Vol. III at 341. She

      developed nerve damage which resulted in the right side of her face being

      paralyzed, needed more than twenty staples as a result of the laceration to her

      scalp, and had to undergo surgery on her left arm. Id. As a result of her broken

      nose, Fliehman lost her sense of smell and will require surgery in the future to

      improve her ability to breathe. Id. at 342.


[7]   Sergeant Benjamin Goodin of the Columbus Police Department (“Sergeant

      Goodin”) was the second officer to arrive on scene, and after staying with

      Fliehman until she could receive medical attention, he noticed that Pedigo had

      not exited his tow truck. Tr. Vol. II at 230. Concerned that he may be injured,

      Sergeant Goodin asked Officer John Morphew (“Officer Morphew”) to check

      Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020        Page 4 of 27
      on Pedigo. Id. Officer Morphew approached the driver’s side door of the tow

      truck and asked Pedigo if he had been injured. Id. at 163. Pedigo responded

      that he had some back pain but that he thought he was okay. Id. Officer

      Morphew asked Pedigo to exit the tow truck, and once he had exited, Pedigo

      told Officer Morphew that the accident occurred after he had “looked down

      and looked back up and saw the traffic in front of him had stopped.” Id. at 164.

      Pedigo told the officer that he had “slammed on his brakes” but that the tow

      truck “didn’t stop and skidded into the vehicles ahead of him.” Id.


[8]   Officer Morphew asked Pedigo if he had had anything to drink or had taken

      any medication, and Pedigo said he had not. Id. At that point, Officer

      Morphew asked Pedigo to submit to a horizontal gaze nystagmus test but did

      not ask him to perform a walk-and-turn test or one-leg stand due to his back

      pain. Id. at 166. Before administering the horizontal gaze nystagmus test,

      Officer Morphew described the test and explained its instructions to Pedigo,

      who indicated that he understood them. Id. at 168. Instead of following the

      instructions to follow the officer’s finger with his eyes without moving his head,

      Pedigo merely stared straight ahead. Id. at 167-68. After Officer Morphew had

      repeated the instructions four or five times, Pedigo followed the instructions,

      and Officer Morphew did not observe any clues to indicate that Pedigo was

      intoxicated. Id. at 168.


[9]   Officer Morphew asked each driver at the scene to submit to a portable breath

      test. Id. at 169. None of the drivers, including Pedigo, tested positive for the

      presence of alcohol. Id. However, after speaking with Sergeant Goodin,

      Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020        Page 5 of 27
       Officer Morphew was instructed to ask Pedigo for his consent to submit to a

       chemical test, specifically, a blood draw. Id. Officer Morphew read Pedigo the

       Indiana Implied Consent law concerning fatal crashes and obtained Pedigo’s

       consent to conduct a blood draw. Id. at 170-71. Officer Morphew then

       transported Pedigo to Columbus Regional Hospital to have the blood draw

       done. Id. at 171.


[10]   At the hospital, Pedigo was asked to complete additional documentation to

       indicate that he consented to the blood draw, and Officer Morphew observed

       him sign the form and have his blood drawn. Id. at 173-74. Alexa Nemeth

       (“Nemeth”), a phlebotomist at Columbus Regional Hospital performed the

       blood draw on Pedigo. Tr. Vol. III at 289-90, 292. After consenting to the

       blood draw, Pedigo provided a second statement to Officer Morphew regarding

       how the crash occurred. Tr. Vol. II at 174-75. In that statement, Pedigo told

       Officer Morphew that he had just left the interstate and was heading eastbound

       on State Road 46 when he looked down at his GPS. Id. at 175. When he

       looked back up, a “dark colored car” suddenly changed lanes in front of him,

       which caused him to collide with that “dark colored car” and the remaining

       cars stopped at the light. Id.


[11]   Because in his first statement Pedigo had stated that his tow truck had failed to

       stop despite him applying the brakes, Indiana State Trooper Seth Davidson

       inspected the tow truck for abnormalities and found no issues with the tow

       truck that would have contributed to the accident. Id. at 199-200, 202. Kelly

       Holley (“Holley”), a certified crash reconstructionist with the Columbus Police

       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020       Page 6 of 27
       Department, also conducted an investigation into the cause of the accident and

       concluded that the primary cause of the accident was Pedigo’s unsafe speed. Id.

       at 246-47; Tr. Vol. III at 260. Holley concluded that Pedigo did not “operate or

       travel at a speed that was prudent to adjust to changing traffic” or to

       accommodate “the weather conditions at the time.” Tr. Vol. III at 260. Holley

       requested a search warrant for the tow truck’s electronic control module,

       commonly referred to as the “black box,” and the information she obtained

       confirmed that Pedigo had not been operating the tow truck at a safe speed to

       avoid colliding with other vehicles in the roadway. Id. at 267.


[12]   Pedigo’s blood sample was sent to the Indiana State Department of Toxicology

       where it was analyzed. Id. at 296. The analysis revealed that Pedigo had THC-

       COH, an inactive metabolite of THC, in his blood, and further testing also

       revealed that he had amphetamine and methamphetamine at four times the

       therapeutic level in his blood at the time of the accident. Id. at 322, 325, 329-

       30.


[13]   On May 17, 2018, the State charged Pedigo with Level 5 felony reckless

       homicide, Level 4 felony causing death when operating a motor vehicle with a

       schedule I or II controlled substance in the blood, and Level 6 felony causing

       serious bodily injury when operating a motor vehicle with a schedule I or II

       substance in the body. Appellant’s App. Vol. II at 12-14. On November 13, 2018,

       Pedigo filed a motion to suppress, alleging that the results of his blood draw

       should be suppressed. Id. at 17. On November 20, 2019, a suppression hearing

       was held, and at the conclusion of the hearing, Pedigo argued that Indiana

       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020        Page 7 of 27
       Code section 9-30-7-3 prohibits an officer from offering a subsequent chemical

       test after receiving negative results from a previous portable breath test, unless

       the officer has probable cause to believe that the person is under the influence of

       a controlled substance or other drug. Tr. Vol. II at 36. The State argued that

       section 9-30-7-3 requires law enforcement officers to offer either a portable

       breath test or chemical test to each driver involved in a crash resulting in serious

       bodily injury or death, but that there is no requirement as to which test a law

       enforcement officer must offer first and subsection (b) establishes that an officer

       may offer more than one test to a person, so long as those tests are offered

       within three hours of the accident. Id. at 31-32. The State further contended

       that subsections (a)(1)-(3) merely state circumstances that require a law

       enforcement officer to offer a subsequent chemical test to a driver after

       administering a portable breath test. Id. at 32.


[14]   On November 27, 2018, the trial court issued an order denying Pedigo’s motion

       to suppress and stating that pursuant to a plain reading of Indiana Code section

       9-30-7-3(a) and (b), “an officer may offer a portable breath test or chemical test,

       and may offer more than one of said tests, based solely on the occurrence of a

       fatal accident, not on the outward signs of intoxication or impairment exhibited

       by a vehicle operator.” Appellant’s App. Vol. II at 17. It also concluded that

       subsections (a)(1)-(3) “simply set[] forth additional conditions if the officer

       chooses to offer the driver a portable breath test first, but does not preclude the

       officer from offering a person another test pursuant to [subsection(b)].” Id.




       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020          Page 8 of 27
[15]   On May 14, 2019, a jury trial was held, during which Officer Morphew testified

       that he did not have probable cause to believe that Pedigo was under the

       influence at the time the officer asked him to submit to a subsequent chemical

       test. Tr. Vol. II at 185. Pedigo then renewed his motion to suppress the

       evidence related to his blood draw, which the trial court denied. Id. at 187, 190.

       Later in the trial, the State moved to admit Pedigo’s toxicology report, and

       Pedigo objected to the admission of the report, arguing that the State had failed

       to lay a proper foundation for the admission of the evidence under Indiana

       Code section 9-30-6-6. Id. at 300-02. Pedigo argued that the State had failed to

       present evidence to show that Nemeth had followed a protocol prepared by a

       physician. Id. at 302. The trial court sustained the objection, and the State

       requested permission to recall Nemeth to present evidence relating to her

       hospital’s protocol. Id. at 303-04. Pedigo objected to Nemeth being recalled,

       arguing that it was not appropriate to give the State a “second shot at it.” Id. at

       304. The trial court noted that neither party had requested that Nemeth be

       released from her subpoena and allowed the State a short period of time to

       recall Nemeth. Id.


[16]   When she was recalled, Nemeth testified that, when she did the blood draw on

       Pedigo, she followed a protocol approved by a pathologist and that Columbus

       Regional Health is a licensed hospital. Id. at 306-07. She described each step

       that she takes when she collects a blood sample for law enforcement. Id. at 310.

       At the conclusion of Nemeth’s testimony, Pedigo renewed his objection, and

       the State responded by arguing that the evidence was admissible because the

       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020        Page 9 of 27
       State had shown that Nemeth followed a protocol approved by a physician at a

       licensed hospital. Id. at 308, 317, 319. The trial court overruled Pedigo’s

       objection and based its decision on the evidence that there was an established

       protocol for the blood draw, Columbus Regional Health was a licensed facility,

       and that Nemeth was certified in phlebotomy and that there had been no

       evidence presented to show that the reliability of the sample had been

       compromised. Id. at 320.


[17]   At the conclusion of the trial, the jury found Pedigo guilty as charged. Id. at

       377-78. On July 12, 2019, a sentencing hearing was held. Tr. Vol. III at 382.

       During the hearing, Pedigo testified that he had started attending Alcoholics

       Anonymous and Narcotics Anonymous two to three weeks after the accident.

       Id. at 390, 392. He admitted that he had been convicted of operating a vehicle

       while intoxicated in 1993 and 2005, and as a condition of those convictions, he

       had been ordered to complete an intensive outpatient program for his substance

       abuse issues, but he never completed that program. Id. at 392-93. Pedigo also

       acknowledged that he had not sought substance abuse treatment until after the

       accident and that he had used marijuana and methamphetamine up to one

       week before the trial. Id. at 393.


[18]   At the conclusion of the evidence, the trial court found the following mitigating

       factors: Pedigo had a steady work history; he had a stable residence of twenty-

       three years; that incarceration would cause financial hardship to Pedigo’s

       family; he had a limited criminal history; he had familial support; he was

       remorseful; and he had a low risk to reoffend. Id. at 407; Appellant’s App. Vol. II

       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020       Page 10 of 27
       at 33. The trial court found the following aggravating factors: Pedigo’s two

       prior convictions for operating a vehicle while intoxicated; his previous

       probation violations for positive drug screens; his failure to comply with

       treatment or seek treatment for his substance abuse addiction in the previous

       thirteen years; his continued use of marijuana and methamphetamine until one

       week prior to trial; Pedigo’s lack of understanding regarding the seriousness of

       his substance abuse addiction and his culpability for the devastating

       consequences of his actions; Pedigo’s choices which caused Fliehman serious

       bodily injury and trauma and also damage to many others; and the seriousness

       of Fliehman’s injuries that were above those contemplated by the statute. Tr.

       Vol. III at 407-18; Appellant’s App. Vol. II at 34.


[19]   Finding that the aggravating factors outweighed the mitigating factors, the trial

       court imposed a four-year sentence for the reckless-homicide conviction, nine

       years for the Level 4 felony conviction, and two years for the Level 6 felony

       conviction for an aggregate sentence of 15 years. Tr. Vol. III at 419-20;

       Appellant’s App. Vol. II at 33-35. The trial court ordered thirteen years to be

       executed in the Department of Correction and two years suspended to formal

       probation. Tr. Vol. III at 420; Appellant’s App. Vol. II at 31-32, 34-35. Pedigo

       now appeals.




       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020        Page 11 of 27
                                       Discussion and Decision

                                I.       Authorization for Blood Draw
[20]   Pedigo argues that, under Indiana Code section 9-30-7-3, law enforcement was

       not permitted to offer him a chemical test after he had submitted to a portable

       breath test, which produced a negative result, when they did not have probable

       cause for intoxication. Indiana Code chapter 9-30-7 addresses a driver’s

       “implied consent in accidents involving serious injury or death.” Indiana Code

       section 9-30-7-3, the specific statute at issue here, provides:


               (a) A law enforcement officer shall offer a portable breath test or
               chemical test to any person who the officer has reason to believe
               operated a vehicle that was involved in a fatal accident or an
               accident involving serious bodily injury. If


               (1) the results of a portable breath test indicate the presence of
               alcohol;


               (2) the results of a portable breath test do not indicate the
               presence of alcohol but the law enforcement officer has probable
               cause to believe the person is under the influence of a controlled
               substance or another drug; or


               (3) the person refuses to submit to a portable breath test;


               the law enforcement officer shall offer a chemical test to the
               person.


               (b) A law enforcement officer may offer a person more than one
               (1) portable breath test or chemical test under this section.
               However, all chemical tests must be administered within three (3)

       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020           Page 12 of 27
               hours after the fatal accident or the accident involving serious
               bodily injury.


       Pedigo asserts that subsection 9-30-7-3(a)(2) “should be read to say that where a

       [portable breath test] result is negative but there is still probable cause for

       intoxication, police shall obtain a blood sample; however, where a [portable

       breath test] result is negative and there is no probable cause for intoxication,

       police may not seek a blood sample.” Appellant’s Br. at 14-15 (emphasis in

       original).


[21]   Pedigo’s argument on appeal raises a question of law, which we consider de

       novo. Bridges v. State, 109 N.E.3d 453, 455 (Ind. Ct. App. 2018). When

       interpreting a statute, we must first determine whether the statutory language is

       clear and unambiguous. Trout v. State, 28 N.E.3d 267, 271 (Ind. Ct. App.

       2015). If it is, we will not apply any rules of construction other than to require

       that words and phrases be given their plain, ordinary, and usual meanings.

       Taylor v. State, 7 N.E.3d 362, 365 (Ind. Ct. App. 2014). However, if a statute is

       susceptible to multiple interpretations, it is deemed ambiguous and open to

       judicial construction. Id. “In interpreting the statute, ‘we will attempt to

       determine and give effect to the intent of the legislature, and to that end, we

       read provisions of a statute together so that no part is rendered meaningless if it

       can be harmonized with the remainder of the statute.’” Id. (quoting Dykstra v.

       City of Hammond, 985 N.E.2d 1105, 1107 (Ind. Ct. App. 2013), trans. denied).

       We read the statute as a whole, avoiding excessive reliance on a strict, literal



       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020          Page 13 of 27
       meaning or the selective reading of individual words. Adams v. State, 960

       N.E.2d 793, 798 (Ind. 2012).


[22]   Pedigo relies on State v. Whitney, 889 N.E.2d 823 (Ind. Ct. App. 2008) for his

       contention that where a portable breath test result is negative and there is no

       probable cause for intoxication, police may not seek a blood sample. While, he

       is correct that Whitney stated that, according to section 9-30-7-3, if, after an

       officer offers a portable breath test or chemical test to a driver of a vehicle

       involved in a crash involving serious bodily injury or death, “the [portable

       breath test] is negative, an officer cannot offer a chemical test unless the officer

       has ‘probable cause to believe the person is under the influence[of a controlled

       substance or another drug],’” that is not the holding of the case. Whitney, 889

       N.E.2d at 828 (quoting Ind. Code § 9-30-7-3(a)(2)). Whitney involved a

       motorcycle driver who was stopped for speeding and offered a portable breath

       test when the officer thought he smelled the odor of alcohol but did not yet have

       probable cause of intoxication. Id. at 825. The issue presented in the case was

       whether law enforcement officers need to have probable cause of intoxication

       before offering an initial portable breath test. Therefore, the case did not

       involve offering a portable breath test or a chemical test to a driver who had

       been involved in an accident involving serious bodily injury or death and did

       not involve the interpretation of section 9-30-7-3 as it related to giving a

       subsequent chemical test after receiving negative results from an initial portable

       breath test. Instead, the case merely cited to section 9-30-7-3 as an example of

       how the legislature treats portable breath tests and chemical tests as mutually


       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020         Page 14 of 27
       exclusive. The holding of Whitney is that law enforcement officers are not

       required to have probable cause of intoxication in order to offer an initial

       portable breath test, but they do need to have reasonable suspicion. Id. at 828-

       29. Because Whitney did not interpret section 9-30-7-3 as it relates to our case,

       the statement that probable cause is required to offer a chemical test when an

       initial portable breath test result is negative is dicta and not binding law. See

       State v. Hardy, 7 N.E.3d 396, 401 (Ind. Ct. App. 2014) (stating that dicta refers

       to statements that a court makes that are not necessary in the determination of

       the issues presented, are not binding, and do not become law, although it may

       be considered persuasive) (citing Koske v. Townsend Engineering Co., 551 N.E.2d

       437, 443 (Ind. 1990)).


[23]   Both parties also cite to Mannix v State, 54 N.E.3d 1002 (Ind. Ct. App. 2016) in

       their arguments, but such reliance is misplaced. Mannix did not make any

       determination as to whether subsection 9-30-7-3(a)(2) provides that when a

       portable breath test is initially given, the result is negative, and there is no

       probable cause for intoxication, that police are prohibited from offering a

       subsequent chemical test. In Mannix, a driver involved in a fatal accident was

       offered a chemical test first and not a portable breath test, but her chemical test

       was not administered until over three hours after the accident occurred.

       Mannix, 54 N.E.3d at 1005. Mannix argued first that her consent was not

       voluntary because she was not given a portable breath test first and relied on the

       conditions contained in subsection (a)(2). Id. at 1007-08. The court found that

       the first sentence of subsection (a) states that an officer “shall offer a portable

       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020          Page 15 of 27
       breath test or chemical test,” and an officer can choose which test to offer a

       driver first and that the conditions in subsection (a) simply set forth additional

       conditions that apply if the officer chooses to offer the driver a portable breath

       test first. Id. at 1008 (quoting Ind. Code § 9-30-7-3(a)). Because a chemical test

       was offered first and not a portable breath test, the court found that the

       conditions set out in subsection 9-30-7-3(a) did not apply. Id. at 1008. The

       court went on to determine that consent given by Mannix was voluntary even

       when the chemical test was administered over three hours after the accident

       occurred and that the delay in time only deprived the State of the presumption

       under Indiana Code section 9-30-6-15 that the driver’s blood-alcohol

       concentration at the time of the chemical test can relate back to the time of the

       accident. Id. at 1009. Therefore, neither Whitney nor Mannix is controlling, and

       this issue is one of first impression.


[24]   In interpreting the statute, we note that section 9-30-7-3(a) clearly states that,

       when a law enforcement officer has reason to believe that a person operated a

       vehicle that was involved in a fatal accident or an accident involving serious

       bodily injury, the officer is required to offer a portable breath test or chemical

       test to the person. Reading the statute as a whole, it is clear that subsections

       (a)(1)-(3) set out three circumstances where a law enforcement officer must offer

       a subsequent chemical test when the officer opts to first offer a portable breath

       test. Ind. Code § 9-30-7-3(a)(1)-(a)(3). Nothing in these subsections prohibits a

       law enforcement officer from offering a subsequent chemical test when such

       circumstances are not present; the subsections merely provide when an officer is


       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020         Page 16 of 27
       required to give a subsequent chemical test. This is especially true when reading

       subsection (a) in conjunction with subsection (b). Subsection (b) expressly

       provides that “a law enforcement officer may offer a person more than one (1)

       portable breath test or chemical test under this section.” Ind. Code § 9-30-7-

       3(b).


[25]   When reading the statute in its entirety, the legislature clearly intended

       subsection (a)(2) to compel law enforcement officers not to conclude their

       investigation when they receive a negative portable breath test result and also

       have probable cause to believe that the driver is under the influence of

       something other than alcohol. See Ind. Code § 9-30-7-3(a)(2). In those

       circumstances, the legislature requires that an officer offer both the portable

       breath test and the chemical test. However, there is nothing in a plain reading

       of section 9-30-7-3 that prohibits an officer from offering more than one test

       following an accident resulting in serious bodily injury or death. In fact,

       subsection (b) explicitly allows an officer to offer more than one test. Ind. Code

       § 9-30-7-3(b).


[26]   Further, under subsection (a), an officer is allowed to offer either a portable

       breath test or a chemical test initially. Ind. Code § 9-30-7-3(a). Under Pedigo’s

       interpretation of the statute, subsection (b) would be rendered meaningless

       whenever an officer chooses to offer a preliminary portable breath test before

       asking the driver to submit to a chemical test because in those cases subsection

       (b) would no longer be applicable unless an officer develops probable cause. If

       the legislature had intended such a result, presumably, it would have added

       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020         Page 17 of 27
       such condition to the language of subsection (b). “It is a rule of statutory

       interpretation that ‘courts will not presume the legislature intended to do a

       useless thing . . . .” State v. Brunner, 947 N.E.2d 411, 416 (Ind. 2011) (quoting

       N. Ind. Bank & Trust Co. v. State Bd. of Finance, 457 N.E.2d 527, 532 (Ind.1983)).

       We do not believe that the legislature intended that subsection (b) be rendered

       meaningless.


[27]   In his reply brief, Pedigo contends that subsection 9-30-7-3(b)’s provision that a

       “law enforcement officer may offer a person more than one (1) portable breath

       test or chemical test under this section” should be interpreted as referring to a

       situation where the first test that an officer administers has an inconclusive

       result, therefore allowing an officer to re-administer the test as many times as

       necessary to obtain a usable result. However, if that is what the legislature

       intended, it could have included language specifying that multiple tests can only

       be given when inconclusive results are obtained. The plain language of

       subsection (b) does not contain any such limitation, and we decline to hold that

       such a limitation exists.


[28]   We, therefore, conclude that under Indiana Code section 9-30-7-3, a law

       enforcement officer is permitted to offer a subsequent chemical test to a person

       who the officer has reason to believe operated a vehicle that was involved in a

       fatal accident or an accident involving serious bodily injury when the officer has

       first administered a portable breath test that produces negative results even if

       the officer does not have probable cause to believe the person is under the

       influence of a controlled substance or another drug. Here, it is undisputed that

       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020       Page 18 of 27
       Pedigo was involved in an accident that involved serious bodily injury and

       resulted in a death, and the officer first administered a portable breath test that

       came back negative. However, even though the officer stated that he did not

       have probable cause to believe that Pedigo was under the influence of a

       controlled substance, under Indiana Code section 9-30-7-3, we conclude that

       the officer was authorized to offer Pedigo a subsequent chemical test,

       specifically a blood draw in this case.


                             II.      Admission of Blood Draw Results
[29]   Pedigo contends that the trial court abused its discretion when it admitted his

       blood draw results into evidence at trial. A trial court has broad discretion in

       ruling on the admissibility of evidence, and we will disturb the court’s rulings

       only where the petitioner has shown an abuse of that discretion. Bowman v.

       State, 51 N.E.3d 1174, 1180 (Ind. 2016). An abuse of discretion occurs only if a

       ruling is clearly against the logic and effect of the facts and circumstances and

       the error affects a party’s substantial rights. Id. “In examining whether

       evidence was appropriately admitted, ‘[w]e consider only evidence that is either

       favorable to the ruling or unrefuted and favorable to the defendant.’” Id.

       (quoting Pierce v. State, 29 N.E.3d 1258, 1264 (Ind. 2015)).


[30]   Pedigo asserts it was an abuse of discretion to admit the results of his blood

       draw at trial because the State failed to lay a proper foundation for admitting

       them. Specifically, he argues that the State failed to present evidence that the




       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020        Page 19 of 27
       person who drew Pedigo’s blood was acting under the direction of or under a

       protocol prepared by a physician as required by Indiana Code section 9-30-6-6.


[31]   Indiana Code section 9-30-6-6(a) sets out the foundational requirements for the

       admission of chemical tests on blood. Pursuant to that statute, blood samples

       collected at the request of a law enforcement officer as part of a criminal

       investigation must be obtained by “[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[.]” Ind. Code § 9-30-6-6(a). As our Supreme

       Court has recognized, “the foundation for admission of laboratory blood

       drawing and testing results, by statute, involves technical adherence to a

       physician’s directions or to a protocol prepared by a physician.” Hopkins v.

       State, 579 N.E.2d 1297, 1303 (Ind. 1991).


[32]   Pedigo relies on Combs v. State, 895 N.E.2d 1252 (Ind. Ct. App. 2008), trans.

       denied, for his contention. There, Combs argued that “the State failed to lay a

       proper foundation for admitting” blood test results “because it did not present

       evidence that the person who drew Combs’s blood acted under proper

       protocol.” Id. at 1256. This court stated that because our Supreme Court had

       noted that “the foundation for admission of laboratory blood drawing and

       testing results, by statute, involves technical adherence to a physician’s

       directions or to a protocol prepared by a physician,” the foundational

       requirement of Indiana Code section 9-30-6-6 could “not be ignored.” Id.

       (quoting Hopkins, 579 N.E.2d at 1303). In Combs, the medical technician who

       drew the blood testified “about her educational background and professional

       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020        Page 20 of 27
       experience drawing blood samples,” and further testified regarding the

       procedure she utilized in drawing Combs’s blood. Id. However, we found

       “that the State failed to present evidence that [this technician] was 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[.]’” Id. at 1257

       (quoting Ind. Code § 9-30-6-6(a)). Specifically, we found the “record devoid of

       evidence that a physician prepared the protocol followed by” the technician,

       and “absolutely no evidence that she acted under the direction of a physician”

       when drawing Combs’s blood, and we held that “the State failed to lay a proper

       foundation for admitting the blood test results.” Id. at 1258.


[33]   We find the present case to be distinguishable from Combs, where there was no

       evidence presented that the medical technician collected Combs’s blood using a

       protocol prepared by a physician. Here, the evidence most favorable to the

       ruling shows that Nemeth testified that she is certified in phlebotomy. Tr. Vol.

       III at 289-90. She further testified that she followed a protocol approved by a

       pathologist when drawing Pedigo’s blood, and that Columbus Regional Health

       is a licensed hospital. Id. at 289, 291, 306-07. Nemeth also testified about each

       step that she takes when she collects a blood sample for law enforcement. Id. at

       310. Specifically, she explained that she begins by providing the law

       enforcement officer the box containing the vials and watches the officer open

       the box, and she then hands the officer the paperwork that the patient is

       required to sign to indicate their consent. Id. She cleans the collection site with

       iodine, collects the blood sample, and labels the vials. Id. Finally, she watches

       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020       Page 21 of 27
       the officer place the blood samples and paperwork into the evidence box which

       is then sealed. Id.


[34]   The evidence presented established that Nemeth was a person trained in

       obtaining bodily samples as required by Indiana Code section 9-30-6-6(a). The

       evidence further showed that Nemeth was “acting under the direction of or

       under a protocol prepared by a physician[.]” See Ind. Code § 9-30-6-6(a). We,

       therefore, conclude that the trial court did not abuse its discretion when it

       admitted Pedigo’s blood draw results into evidence.


                                      III. Inappropriate Sentence
[35]   Pedigo also asserts that his sentence is inappropriate. Pursuant to Indiana

       Appellate Rule 7(B), this court “may revise a sentence authorized by statute if,

       after due consideration of the trial court’s decision, the [c]ourt finds that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Our Supreme Court has explained that the principal role of

       appellate review should be to attempt to leaven the outliers, “not to achieve a

       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). We independently examine the nature of Pedigo’s offense and his

       character under Appellate Rule 7(B) with substantial deference to the trial

       court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In

       conducting our review, we do not look to see whether the defendant’s sentence

       is appropriate or if another sentence might be more appropriate; rather, the test

       is whether the sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315


       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020         Page 22 of 27
           (Ind. Ct. App. 2013), trans. denied. Whether a sentence is inappropriate

           ultimately depends upon “the culpability of the defendant, the severity of the

           crime, the damage done to others, and a myriad of other factors that come to

           light in a given case.” Cardwell, 895 N.E.2d at 1224. Pedigo bears the burden

           of persuading us that his sentence is inappropriate. Id.5


[36]       Here, Pedigo was convicted of Level 5 felony reckless homicide, Level 4 felony

           causing death when operating a motor vehicle with a schedule I or II controlled

           substance in the blood, and Level 6 felony causing serious bodily injury when

           operating a motor vehicle with a schedule I or II controlled substance in the

           body. A person who commits a Level 5 felony shall be imprisoned for a fixed

           term of between one and six years, with the advisory sentence being three years.

           Ind. Code § 35-50-2-6(b). A person who commits a Level 4 felony shall be

           imprisoned for a fixed term of between two and twelve years, with the advisory

           sentence being six years. Ind. Code § 35-50-2-5.5. A person who commits a

           Level 6 felony shall be imprisoned for a fixed term of between six months and

           two and one-half years, with the advisory sentence being one year. Ind. Code §

           35-50-2-7(b), trans. denied. Therefore, the maximum sentence Pedigo could

           have received from the trial court was twenty and one-half years.




       5
         Many of Pedigo’s arguments seem to be contentions that the trial court considered improper aggravating factors
       or somehow abused its discretion in sentencing him. However, we note that Pedigo did not frame his argument
       in this way or provide any cogent argument regarding the trial court abusing its discretion and has not cited to any
       authority for such an argument. Therefore, to the extent that he is arguing that the trial court abused its discretion
       in finding aggravating and mitigating factors and in sentencing him, we conclude that he has waived any such
       argument. Lee v. State, 91 N.E.3d 978, 990-91 (Ind. Ct. App. 2017) (citing Ind. Appellate Rule 46(A)(8)(a)).

           Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020                                  Page 23 of 27
[37]   The trial court imposed a sentence of four years for Pedigo’s Level 5 felony,

       nine years for his Level 4 felony conviction, and two years for his Level 6 felony

       conviction. The trial court ordered that those sentences be served consecutively

       for an aggregate fifteen-year sentence with thirteen years executed and two

       years suspended to probation. Pedigo’s executed sentence was seven and one-

       half years less than the maximum he could have received, and his aggregate

       sentence was five and one-half years less than the maximum the trial court was

       authorized to impose.


[38]   As this court has recognized, the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The nature

       of the offense refers to a defendant’s actions in comparison with the elements of

       the offense. Cardwell, 895 N.E.2d at 1224. “When determining the

       appropriateness of a sentence that deviates from an advisory sentence, we

       consider whether there is anything more or less egregious about the offense as

       committed by the defendant that ‘makes it different from the typical offense

       accounted for by the legislature when it set the advisory sentence.’” Moyer v.

       State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting Holloway v. State, 950

       N.E.2d 803, 807 (Ind. Ct. App. 2011)), trans. denied.


[39]   In the present case, Pedigo recklessly drove his loaded tow truck on a public

       roadway, failing to “operate [it] or travel at a speed that was prudent to adjust

       to changing traffic” or to accommodate “the weather conditions at the time.”

       Tr. Vol. III at 260. He did so with methamphetamine and amphetamine in his

       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020       Page 24 of 27
       system. His actions caused him to collide with Bowman’s Mazda, which killed

       Bowman and caused Fliehman to suffer serious bodily injury. The

       investigation into the accident revealed that the primary cause of the accident

       was Pedigo’s unsafe speed and that he was traveling at approximately thirty-

       seven miles per hour when he slammed into the back of the Mazda. Id. at 260,

       268. When speaking with law enforcement, Pedigo gave differing stories in an

       attempt to excuse his reckless behavior. He first told Officer Morphew that he

       had “looked down and looked back up and saw the traffic in front of him had

       stopped” and that he had “slammed on his brakes,” but the tow truck “didn’t

       stop and skidded into the vehicles ahead of him.” Tr. Vol. II at 164.

       Subsequent testing of the tow truck did not discover any issues with the truck

       that could have contributed to the accident. Id. at 202. Later the night of the

       accident, Pedigo told Officer Morphew a different story about how the accident

       occurred. He said he had just left the interstate and was heading eastbound on

       State Road 46 when he looked down at his GPS, and when he looked back up,

       a “dark colored car” suddenly changed lanes in front of him which caused him

       to collide with that “dark colored car” and the remaining cars stopped at the

       light. Id. at 175. However, this story was not “corroborated by any other

       witness.” Tr. Vol. III at 411-12.


[40]   As a result of the accident, Bowman was killed when the Mazda crushed in

       around him, and Fliehman sustained serious injuries with long-lasting effects.

       She suffered a laceration that extended from the top of her scalp to her neck, a

       severe concussion, a broken nose, an abrasion on her eye, and a broken left


       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020      Page 25 of 27
       arm. She developed nerve damage, which resulted in the right side of her face

       being paralyzed, received over twenty staples on her scalp, had to undergo

       reconstructive surgery on her left arm, lost her sense of smell, and will require

       surgery in the future to improve her ability to breathe. In addition to the

       damage done to Bowman and Fliehman, Pedigo’s recklessness caused a chain

       reaction accident that involved numerous other victims, and six other drivers

       were all directly impacted by the accident. We do not find his sentence to be

       inappropriate in light of the nature of the offense.


[41]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Perry, 78 N.E.3d at 13. When considering the character of the

       offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

       986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The evidence showed that Pedigo

       had history of substance-abuse issues. He began to drink alcohol when he was

       eighteen years old and continued “throughout the years.” Tr. Vol. III at 408.

       Pedigo stated he began using marijuana daily from the age of fifteen until he

       turned thirty years old and began using methamphetamine at the age of thirty

       for “stress relief.” Id. at 408-09. Pedigo had two prior convictions for operating

       a motor vehicle while intoxicated and had violated the terms of his probation

       on two separate occasions by testing positive for methamphetamine. Id. at 407-

       08. As a part of his previous convictions, Pedigo was ordered to participate in

       intensive outpatient therapy and was given an opportunity to recognize “the

       seriousness of his substance use.” Id. at 408. However, he failed to complete

       the treatment and did not take advantage of his past opportunities to address his


       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020       Page 26 of 27
       substance-abuse issues. Pedigo also admitted that he had not sought substance

       abuse treatment until after the accident and that he had continued to use

       marijuana and methamphetamine up to one week before the trial. Id. at 393.

       His continued substance abuse showed his “lack of understanding of the

       harmful and the devastating consequences” of that use and posed a danger to

       the community, particularly because of his employment as a tow truck driver,

       which caused him to travel on public roadways often hauling heavy

       automobiles. Id. at 409. We conclude that Pedigo’s sentence is not

       inappropriate in light of his character.


[42]   Pedigo has not shown that his sentence is inappropriate in light of the nature of

       the offense and the character of the offender. We, therefore, affirm the sentence

       imposed by the trial court.


[43]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-1848 | April 13, 2020     Page 27 of 27
