                                                                         FILED
                                                                    Aug 31 2016, 9:08 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John Mark Vouga                                            Gregory F. Zoeller
Nicholas Barnes                                            Attorney General of Indiana
Vouga & Associates, LLC
Portage, Indiana                                           Angela N. Sanchez
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Howard B. Gutenstein,                                      August 31, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           46A04-1511-CR-1892
        v.                                                 Appeal from the LaPorte Superior
                                                           Court
State of Indiana,                                          The Honorable Michael S.
Appellee-Plaintiff.                                        Bergerson, Judge
                                                           Trial Court Cause No.
                                                           46D01-1304-FC-157



Brown, Judge.




Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                   Page 1 of 39
[1]   In this interlocutory appeal, Howard B. Gutenstein appeals the trial court’s

      order denying his motion to dismiss and motion to suppress evidence of his

      blood alcohol concentration. Gutenstein raises three issues which we

      consolidate and restate as:


        I.    Whether the trial court abused its discretion in denying his motion to
              dismiss; and

       II.    Whether the trial court erred in denying his motion to suppress.



      We affirm.


                                       Facts and Procedural History

[2]   Around 2:00 a.m. on April 25, 2013, George Leeth was traveling eastbound on

      I-94 and observed a gray car later determined to be driven by Gutenstein

      making unsafe lane movements. Leeth was unable to move around the vehicle,

      and called 911 to report Gutenstein’s behavior. Gutenstein slowed down in the

      right lane to twenty-five miles per hour, and Leeth activated the hazards on his

      semi. Gutenstein then stopped his vehicle in the right lane, and Leeth also

      stopped with his hazards activated. A semi driven by Steve Lunn struck the

      rear of Leeth’s semi.


[3]   Indiana State Trooper Rogelio Escutia, a probationary trooper at that time,

      responded to the scene and observed a semi in the right lane and another semi




      Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 2 of 39
      on the outside shoulder with heavy damage.1 Trooper Escutia observed Lunn

      in the cabin of one of the semis and asked him if he was okay. Lunn was “only

      able to lift his body up, as he kept bleeding from his mouth and then he went

      back down.” Transcript at 15. Trooper Escutia observed a small passenger car

      with no physical damage and with its lights off in front of the white semi.


[4]   Leeth hobbled towards Trooper Escutia and spoke to him in a clear concise

      voice. Trooper Escutia then observed Gutenstein on the ditch grass area

      walking very slowly toward him and being “[j]ust nonchalant.” Id. at 19-20.

      As Trooper Escutia spoke to Leeth and Gutenstein, Gutenstein “really didn’t

      say anything,” and Leeth was “just doing all the talking and . . . Gutenstein just

      remained quiet.” Id. at 20. Trooper Escutia asked Gutenstein what happened,

      and Gutenstein said: “I’m just sleepy and tired.” Id. Trooper Escutia asked

      Gutenstein if he had been drinking, and Gutenstein just said that he was tired.

      Trooper Escutia smelled the odor of alcohol coming from Gutenstein and

      observed that Gutenstein “seemed confused” and had “no idea what had

      happened or transpired at the accident.” Id. at 32. Gutenstein also had

      bloodshot eyes that were “kind of glassy” and he spoke with a “very slow draw

      [sic].” Id. at 34.


[5]   Trooper Escutia learned that Gutenstein was going “lane to lane,” “was not

      able to let other vehicles pass,” and that he almost crashed into the center



      1
        Trooper Escutia testified that he graduated from the State Academy on December 21, 2013, was an FTO
      for three months, and that the collision occurred during his first week on solo patrol.

      Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                  Page 3 of 39
      barrier wall. Id. at 52. Trooper Escutia determined that Gutenstein stopped his

      car in the right lane, that Leeth was a concerned driver and stopped to

      determine “what’s going on with this guy in front of me,” and then Lunn

      crashed into Leeth’s semi. Id. at 38.


[6]   Trooper Adam Rubesha, a more experienced trooper, arrived, also smelled

      alcohol, and told Trooper Escutia to place Gutenstein in handcuffs. Trooper

      Escutia placed Gutenstein in handcuffs and into the front seat of his patrol

      vehicle and put the seat belt on him. Trooper Escutia then assisted the other

      troopers with the investigation at the scene and in helping Lunn, who died at

      the scene.


[7]   At some point, post command told Trooper Escutia that he needed to obtain a

      blood draw “because it is policy for us to during serious accidents to always get

      a consent to, for an alcohol test.” Id. at 24. While in his police vehicle,

      Trooper Escutia read Gutenstein an implied consent warning. Specifically,

      Trooper Escutia stated:


              I have reason to believe that you have operated a vehicle that was
              involved in a fatal or serious bodily injury crash. I must now
              offer you the opportunity to submit to a chemical test . . . and
              inform you that your refusal to submit to a chemical test will
              result in suspension of your driving privileges for one year and is
              punishable as a Class C Infraction. If you have at least one
              previous conviction for operating while intoxicated, your refusal
              to submit to a chemical test, will result of [sic] suspension of your
              driving privilege for two years . . . and is punishable as a Class A
              Infarction [sic].


      Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 4 of 39
      Id. at 25-26. Trooper Escutia also informed Gutenstein of his Miranda rights.

      Gutenstein indicated verbally that he understood the implied consent warnings

      and his Miranda rights. Trooper Escutia told Gutenstein that he was going to

      take him to the hospital for a blood draw, and Gutenstein stated: “[Y]es.” Id. at

      56. Trooper Escutia transported Gutenstein to the hospital.


[8]   At the hospital, Trooper Escutia gave Gutenstein a printed sheet of his Miranda

      warning. Trooper Escutia read Gutenstein a form that states “CHECK EACH

      BOX AS YOU EXPLAIN IT.” State’s Exhibit 1. Under that statement, the form

      contains a heading titled “Miranda Warning,” a list of rights with boxes next to

      them, and a signature line and a witness line. Id. Under the heading

      “Fatal/SBI Crash Implied Consent Warning,” the following statements are listed:


              I have reason to believe that you have operated a vehicle that was
              involved in a fatal or serious bodily injury crash.


              I must know [sic] offer you the opportunity to submit to a
              chemical test.


              I must inform you that your refusal to submit to a chemical test
              will result in the suspension of your driving privileges for up to
              one (1) year and is punishable as a Class C Infraction.


              I must inform you that if you have at least one previous
              conviction for operating while intoxicated, your refusal to submit
              to a chemical test will result in the suspension of your driving
              privileges for up to two (2) years and is punishable as a Class A
              Infraction.



      Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 5 of 39
       Id. Each of the above statements had a box next to it. Under these statements,

       the form read: “Will you now take a chemical test?” Id. The word “YES” was

       circled. Id. Trooper Escutia checked the boxes and placed his signature under

       the Miranda warning and the implied consent warning because he understood

       the form as requiring that he do so. Trooper Escutia went through these forms

       with Gutenstein in the phlebotomist’s office of the hospital. Trooper Escutia

       and the phlebotomist then explained to Gutenstein that there was going to be

       blood drawn from his body. Gutenstein acknowledged that he understood his

       rights and consented to the blood draw.


[9]    At 4:45 a.m., Trooper Escutia filled out a form titled “Law Enforcement

       Officer’s Certification To Physician of Death or Serious Bodily Injury.” Id.2

       The form, which was signed by Trooper Escutia, stated in part that he was

       requesting that Julie Whistler obtain a sample of blood pursuant to Ind. Code §

       9-30-6-6(g) and that he had probable cause to believe that Gutenstein operated a

       vehicle while intoxicated, with a controlled substance in his body, or with

       unlawful blood alcohol content. Id.


[10]   Shortly before the blood draw, LaPorte County Sheriff’s Detective Lowell Scott

       Boswell arrived at the hospital and observed that Gutenstein had an odor

       commonly associated with alcoholic beverages “permeating” from his person




       2
         At the hearing, during cross-examination of Trooper Escutia, Gutenstein’s counsel asked: “If you believed
       you had consent, why did you additionally fill out [the form titled Law Enforcement Officer’s Certification
       To Physician of Death or Serious Bodily Injury]?” Transcript at 42. Trooper Escutia answered: “Because
       that’s how I was instructed to do it by the more experienced trooper, sir.” Id. at 43.

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                      Page 6 of 39
       and that his eyes were glassy. Transcript at 68. Gutenstein was not handcuffed

       and did not voice any objection or concern when his blood was drawn or at any

       point. The blood test revealed the presence of alcohol, specifically 0.13%

       ethanol.


[11]   On April 26, 2013, the State charged Gutenstein with: Count I, operating a

       motor vehicle while intoxicated causing death as a class C felony; Count II,

       reckless homicide as a class C felony; and Count III, operating a vehicle while

       intoxicated as a class A misdemeanor.


[12]   On June 11, 2015, Gutenstein filed a motion to dismiss and a memorandum of

       law and alleged that the charging informations for Counts I and II were

       defective because they failed to recite facts that constitute the alleged offenses

       and that he caused Lunn’s death. That same day, he filed a motion to suppress

       evidence of his blood alcohol concentration and alleged that the police seized a

       sample of his blood to test for alcohol and other controlled substances without

       lawful authority. He asserted that the police did not have a warrant, probable

       cause, or consent to obtain the blood sample. He also alleged that the blood

       draw was not done for purposes of medical treatment and violated the Fourth

       Amendment to the United States Constitution and Article 1, Section 11 of the

       Indiana Constitution.


[13]   On September 18, 2015, the court held a hearing on Gutenstein’s motions.

       Trooper Escutia and Detective Boswell testified. During Trooper Escutia’s

       testimony, the form including the Miranda warning and the implied consent


       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 7 of 39
       warning was discussed, and Trooper Escutia testified that he made a mistake by

       signing on those lines and that “I took it as understanding that as I checked

       marked it, because I’m the one that read it to him, I was going to sign, sir.” Id.

       at 47. On redirect examination, the prosecutor asked Trooper Escutia whether

       Gutenstein consented to the blood draw, and Trooper Escutia answered: “Yes.”

       Id. at 49. Upon questioning by the court, Trooper Escutia testified that he

       explained the implied consent responsibilities and Miranda warnings on two

       different occasions. He testified that Gutenstein verbally indicated that he

       understood the implied consent warnings and his rights under Miranda. When

       asked how Gutenstein indicated to him that he understood him, Trooper

       Escutia answered: “He said, yes.” Id. at 58.


[14]   Trooper Escutia also testified that the police received a dispatch that the

       individual that was driving the car was walking around the ditch or the canal

       area of I-94 prior to the crash and was walking away from the accident. The

       following exchange occurred during the redirect examination of Trooper

       Escutia:


               Q . . . At that point, and, and when this accident occurred was
               there any, I think you had testified Mr. Gutenstein was not in the
               car at the time of the actual crash –


               A No.


               Q -- between the – okay, he was out on the, on the side of the
               highway?



       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 8 of 39
               A Yes.


       Id. at 51-52. At one point, the court asked Trooper Escutia what Leeth told

       him, and Trooper Escutia answered:

               [T]he gray Audi was making unsafe lane movements and he was
               unable to get around the subject’s vehicle traffic in the adjacent
               lane. He then followed the gray Audi and called 911 to advise
               that the D3, which is the, Mr. Gutenstein’s driving behavior. As
               I, as he continued to talk to dispatch and advised the driver here
               very uh, he slowed down – Mr. Gutenstein’s vehicle slowed
               down in the right lane to 25 miles per hour. And the witness had
               stated that he stayed behind the V3, which is the – Mr.
               Gutenstein’s vehicle, with his hazards activated on his semi.


               He then advised that the gray Audi stopped and his – stopped his
               vehicle in the right lane, and then he then attempted to stop
               behind the gray Audi with his hazards activated. And he was
               stopped about 10 feet, and as he attempted to exit his vehicle, he
               was struck in the rear by Mr. Lunn.


       Id. at 53-54.


[15]   After the presentation of evidence, Gutenstein’s counsel argued the issues raised

       in his motion to dismiss and motion to suppress. He contended that

       Gutenstein’s driving behavior could be explained by any number of things

       including a narcoleptic episode, and stated that he wanted to address an issue

       that was not in his memorandum of law which was the issue of operation, and

       he asserted that Gutenstein was not operating his vehicle at the time of the fatal

       accident.


       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 9 of 39
[16]   The prosecutor stated:


               I think, and this is the crux of the whole matter is [the] causation
               issue. I think we’re, we’re in agreement on that. It becomes the
               issue of, from the testimony that we heard from the officer,
               basically, the car, we, we all know the car is parked in the, the far
               right lane. And it’s – it has its lights off. It’s locked. And he was
               not in the vehicle at the time. . . . Because we have to go beyond,
               and it becomes a legal issue I think. You know, when you have
               those facts is, is that foreseeable that, that him parking, is that
               causation? Him causing that chain of events? And, and frankly,
               I think that’s, that’s what the Court has to make a determination
               on, is because of the, the case law I read on the operation, is it
               enough that he operated his vehicle? Because we have operation.
               . . . It’s not a situation where the car is just parked out there. We
               know we have that operation. We have operating while
               intoxicated. The issue is, does it end? When, when does the –
               when does it end? When does the operation end?


       Id. at 91-92. He later stated: “I know back in 2013 there was an obstruction of

       traffic statute that’s now been repealed, I think it’s in 2014, that may have been

       the more appropriate rather than, you know, reckless homicide or the

       obstruction of, of traffic would probably have been causing death, because

       that’s kind of the situation is that, he didn’t operate his vehicle, but he put his

       vehicle there in the way that it caused a serious accident.” Id. at 94-95. After

       some discussion, the prosecutor spoke and appeared to refer to statements by

       Leeth who did not testify at the hearing. Specifically, the prosecutor stated:


               And the, and the timing it – when Mr. Leeth was here, he said
               something that I thought was very interesting. He said that he
               saw Mr. Gutenstein stop his vehicle, turn off the lights, and get
               out of the car when he was still a half mile behind him. And, and

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 10 of 39
               that was something that to me when I heard him say that, that
               was – and I asked him afterwards to talk to his counsel I said,
               that’s, that’s new information to me, because I thought he was
               following him. He said he was following him, I thought he was
               following him closely, but he’s talking about following him even
               more further back, and that kind of pushes that time back. And
               he has enough time to get out of his car and talk to him before
               the accident occurs. So that – and that’s the issue, Your Honor,
               is, is that enough causation? Is him just – the mere presence of
               him operating his vehicle and parking it there on the highway, is
               that enough to prove causation? And I think that becomes a legal
               issue for the Court to make a determination on, because I think
               the facts are clear. There, there’s no issue that Mr. Leeth stopped
               his vehicle, was able to get out of his car, go up to him and talk to
               Mr. Gutenstein and then he saw Mr. Lunn’s, Lunn’s vehicle
               coming up and he decided to either, either go to the second lane
               of the highway to get out of the way or go back in his cab? And
               he chose to go back in his cab, because he wanted to go for the
               safety of his, of his vehicle versus that he didn’t want to prohibit
               Mr., if Mr. Lunn was to go to the left, instead of going to the
               right, and Mr. Lunn chose to go to the right. And I think if he’d
               gone to the left we, we would be in uh, uh, it may have been a
               fatality of Mr. Leeth, you know, because the accident would
               have went the other direction, the forces and all that.


               So, I think, I think really, it really comes down to a legal issue. Is
               that a sufficient for the State, him parking his vehicle to cause – is
               that causation for both, on Counts I and Count II?


       Id. at 96.


[17]   The court then asked the prosecutor if he was saying Gutenstein’s motion to

       dismiss should be granted or denied. The prosecutor stated that it would leave

       that to the court’s determination, that he could see both sides of the argument,


       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 11 of 39
       and that he saw an argument that he could make for causation. When asked by

       the court what argument he was going to make, the prosecutor stated:


               The argument is that, but for him parking the car there, this
               would not have occurred. And, and – but, but is that a proper
               argument? That almost becomes like the negligence argument,
               that it’s, it’s gross negligence. And I, and I see under the case
               law that operation of the vehicle, that you need to operate – you
               have to show causation by the operation of the vehicle.


       Id. at 97. After further discussion, the prosecutor stated that he did not want

       the court to dismiss the case.


[18]   On September 29, 2015, the court denied Gutenstein’s motions. The court’s

       order states in part:


                                          LEGAL CONCLUSIONS


               1. Count I of the Charging Information is not defective under
                  I.C. 35-34-1-4 because it does recite facts that constitute the
                  alleged offense. See “Facts alleged by State” in Defendant’s
                  Memorandum of Law.


               2. Count II of the Charging Information is not defective under
                  I.C. 35-34-1-4 because it does recite facts that constitute the
                  alleged offense. See “Facts alleged by State” in Defendant’s
                  Memorandum of Law.


               3. The factual allegations, if taken as true, support the theory
                  that the defendant’s conduct: a) was the actual and proximate
                  cause of the accident that resulted in Mr. Lunn’s death
                  (Bowman v. State 564 N.E. 2nd 309), and b) that the result


       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 12 of 39
             was the “natural and probable” consequence of the
             defendant’s conduct, ie. foreseeable. Id.


        4. The alleged facts in support of Count II, Reckless Homicide,
           are sufficient to survive the Motion to Dismiss. The facts
           alleged in the charging information are not the basis upon
           which a jury convicts; they are allegations supporting the
           charge. See “Facts Alleged by State” in Defendant’s
           memorandum of Law.


        5. The implied consent statutes are designed to give law
           enforcement officers the authority to perform chemical tests
           on drivers who are either thought to be intoxicated or those
           who have been involved in an accident involving a fatality or
           serious bodily injury. Abney v. State, 811 N.E.2d 415, 419-420
           (Ind. [Ct. App.] 2004)[, adopted by 821 N.E.2d 375 (Ind.
           2005)].


        6. Under chapter six of the Indiana Implied Consent laws, a
           person impliedly consents to a chemical test through the
           operation of a vehicle. See I.C. 9-30-6-1.


        7. Trooper Escutia did not lack probable cause to conduct a
           chemical test. The Defendant was involved in an accident in
           which a death occurred; an odor of alcohol was detected and
           the defendant’s eyes were glassy. Defendant was observed
           wandering near the scene seemingly indifferent to what had
           occurred.


        8. Regardless of Trooper Escutia’s failure to obtain the written
           consent of the defendant, the evidence supports the
           conclusion that the defendant knowingly and voluntarily
           consented to the blood test both in word and in deed.



Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 13 of 39
               9. At no time on April 25, 2014 did the defendant indicate that
                  he suffered from narcolepsy.


       Appellant’s Appendix at 99-100.


                                                     Discussion

                                                           I.


[19]   The first issue is whether the trial court abused its discretion in denying

       Gutenstein’s motion to dismiss Counts I and II. We review a trial court’s ruling

       on a motion to dismiss a charging information for an abuse of discretion, which

       occurs only if a trial court’s decision is clearly against the logic and effect of the

       facts and circumstances. An-Hung Yao v. State, 975 N.E.2d 1273, 1276 (Ind.

       2012). A trial court also abuses its discretion when it misinterprets the law. Id.


[20]   At the outset, we observe that Gutenstein’s motion to dismiss alleged that

       Counts I and II must be dismissed under Ind. Code § 35-34-1-4(a)(5) which

       provides that “[t]he court may, upon motion of the defendant, dismiss the

       indictment or information upon any of the following grounds . . . [t]he facts

       stated do not constitute an offense.” In his memorandum of law in support of

       his motion to dismiss, he also referenced Ind. Code § 35-34-1-4(a)(11), which

       provides that the court may dismiss the indictment or information upon “[a]ny

       other ground that is a basis for dismissal as a matter of law.”


[21]   In deciding whether an information fails to state facts constituting an offense,

       we take the facts alleged in the information as true. Pavlovich v. State, 6 N.E.3d

       969, 974 (Ind. Ct. App. 2014), trans. denied. Facts permitted to be raised in a
       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 14 of 39
       motion to dismiss a charging information generally concern only pre-trial

       procedural matters, such as jurisdictional issues, double jeopardy, collateral

       estoppel, and the like. Id. (citing State v. King, 502 N.E.2d 1366, 1369 (Ind. Ct.

       App. 1987)). “Questions of fact to be decided at trial or facts constituting a

       defense are not properly raised by a motion to dismiss.” State v. Isaacs, 794

       N.E.2d 1120, 1122 (Ind. Ct. App. 2003). “It is only when an information is

       facially deficient in stating an alleged crime that dismissal for failure to state an

       offense is warranted.” Pavlovich, 6 N.E.3d at 969; see also Isaacs, 794 N.E.2d at

       1123 (holding dismissal of charge was warranted where information alleged

       defendant operated a vehicle with a schedule I or II controlled substance in the

       body, but substances alleged to be in defendant’s body were schedule IV

       controlled substances or non-controlled substances, and it was not a crime to

       operate a vehicle with such substances in the body).


[22]   Gutenstein’s arguments address the specificity of the charging informations,

       whether his conduct as alleged could constitute reckless homicide, causation,

       and his operation of the vehicle. We address these arguments separately.


       A. Specificity


[23]   At the time of the offense and charging information, Ind. Code § 35-34-1-2

       provided in part:


               (a) The indictment or information shall be in writing and allege
               the commission of an offense by:


                                                      *****

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 15 of 39
                 (2) stating the name of the offense in the words of the
                 statute or any other words conveying the same meaning;


                 (3) citing the statutory provision alleged to have been
                 violated, except that any failure to include such a citation
                 or any error in such a citation does not constitute grounds
                 for reversal of a conviction where the defendant was not
                 otherwise misled as to the nature of the charges against the
                 defendant;


                 (4) setting forth the nature and elements of the offense
                 charged in plain and concise language without
                 unnecessary repetition;


                 (5) stating the date of the offense with sufficient
                 particularity to show that the offense was committed
                 within the period of limitations applicable to that offense;


                 (6) stating the time of the offense as definitely as can be
                 done if time is of the essence of the offense . . . .


                                               *****


        (d) The indictment or information shall be a plain, concise, and
        definite written statement of the essential facts constituting the
        offense charged. It need not contain a formal commencement, a
        formal conclusion, or any other matter not necessary to the
        statement. Presumptions of law and matters of which judicial
        notice is taken need not be stated.


(Subsequently amended by Pub. L. No. 85-2013, § 115 (eff. July 1, 2013)).




Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016     Page 16 of 39
[24]   Gutenstein argues that the State failed to allege facts constituting the offenses

       charged and that the clear logic and effect of the facts and circumstances

       compel the conclusion that he was improperly charged. He asserts that the

       charging information for Count I was facially defective because it failed to set

       forth the approximate time at which he was alleged to have operated his motor

       vehicle, as well as the time the accident occurred as required under Ind. Code §

       35-34-1-2(a)(6). He contends that this information is critical as the State is

       required to show that his blood sample was collected within three hours from

       the time he was operating his motor vehicle in order to presumptively relate his

       chemical test results back to the alleged time of operation. He also posits that

       the charging information did not contain facts to show operation of a vehicle,

       signs of intoxication, the actions that caused Lunn’s death, or even allege that

       he was operating a motor vehicle that was involved in an accident. The State’s

       position is that the charging informations were sufficiently specific and that,

       even if a deficiency in the pleading existed, then amendment of the information

       and not dismissal of the charge would be the appropriate remedy.


[25]   As to Count II, Gutenstein concedes that the charging information appears to

       meet the minimum requirements of Ind. Code § 35-34-1-2(a), but asserts that

       the information still fails to state the essential facts alleged in support of the

       charged offense as required under Ind. Code § 35-34-1-2(d). He argues that the

       charging information in Count II is so fatally defective that it is impossible for

       him to discern what conduct the State is alleging to be reckless.




       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 17 of 39
[26]   “The State is not required to include detailed factual allegations in a charging

       information.” Laney v. State, 868 N.E.2d 561, 567 (Ind. Ct. App. 2007), trans.

       denied. “An information that enables an accused, the court, and the jury to

       determine the crime for which conviction is sought satisfies due process. Errors

       in the information are fatal only if they mislead the defendant or fail to give him

       notice of the charge filed against him.” Dickenson v. State, 835 N.E.2d 542, 550

       (Ind. Ct. App. 2005) (citations and quotation marks omitted), trans. denied.

       “[W]here a charging instrument may lack appropriate factual detail, additional

       materials such as the probable cause affidavit supporting the charging

       instrument may be taken into account in assessing whether a defendant has

       been apprised of the charges against him.” State v. Laker, 939 N.E.2d 1111,

       1113 (Ind. Ct. App. 2010), trans. denied.


[27]   In Count I, operating a motor vehicle while intoxicated causing death as a class

       C felony, the State alleged:


               On or about the 25th day of April, 2013, at or about Mile Marker
               43 in the eastbound lane of I-94, LaPorte County, State of
               Indiana, Howard B. Gutenstein did cause the death of another
               person, namely Steve Lunn, while operating a motor vehicle with
               at least eight-hundredths gram (0.08) of alcohol concentration in
               the defendant’s blood, to-wit: .13% serum, plasma or blood.


       Appellant’s Appendix at 13 (italics, capitalization, and bold removed). At the

       time of the offense, Ind. Code § 9-30-5-5 provided in part that “[a] person who

       causes the death of another person when operating a vehicle . . . with an alcohol

       concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 18 of 39
       . . . one hundred (100) milliliters of the person’s blood . . . commits a Class C

       felony.”3


[28]   We cannot say that the charging information for Count I was facially deficient.

       To the extent that Gutenstein asserts that the State did not provide the time that

       he operated the vehicle, we observe that he argues, without citation to the

       record, that “the State chose not to file a probable cause affidavit in support of

       the charging information; thus, the charging information alone must contain a

       statement of facts constituting the offenses charged in Counts I and II.”

       Appellant’s Brief at 30. While the record does not contain a copy of the

       probable cause affidavit, the record suggests that it was filed along with the

       charging information. The second page of the charging information states:

       “This affidavit having been filed in open court this 26th day of April, 2013,

       together with supporting testimony of Det. Scott Boswell with a finding thereon

       of probable cause for issuance of a warrant(s) for the arrest” of Gutenstein.

       Appellant’s Appendix at 14. Further, Gutenstein filed a Motion to Preserve

       Evidence in July 2013, which stated: “In reading the information and the

       probable cause affidavit filed with it . . . .” Id. at 28 (emphasis added). As noted,

       we have previously reviewed an attached probable cause affidavit in addressing

       whether a charging information is defective. See Laker, 939 N.E.2d at 1113

       (“Here, the underlying allegations reveal two potential subject vehicles—a




       3
        Subsequently amended by Pub. L. No. 158-2013, § 161 (eff. July 1, 2014); and Pub. L. No. 26-2016, § 1 (eff.
       July 1, 2016).

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                    Page 19 of 39
       Lexus and a farm tractor. None of the State’s charges specifies which of the

       vehicles Laker is alleged to have illegally driven. However, the attached

       probable cause affidavit and summons tickets clarify that the State’s charges are

       based specifically on Laker’s farm tractor. We therefore find no fatal

       uncertainty in the State’s charging information.”). While the fact that

       Gutenstein did not include the probable cause affidavit in his appendix does not

       result in waiver,4 he fails to cite to the record for the assertion that the probable

       cause affidavit was not filed despite the record, including his own admission

       suggesting otherwise, and he does not assert that the probable cause affidavit

       did not include a time that he allegedly operated the vehicle. Moreover, as

       pointed out by the State, the evidence presented at the hearing provided details

       regarding the time of the crash and the time at which Gutenstein’s blood was

       drawn. Further, Gutenstein’s memorandum in support of his motion to dismiss

       states under the heading “Facts Alleged by the State” that he was driving on I-

       94 at approximately 2:00 a.m. and refers to an Indiana State Police Incident

       Report. Appellant’s Appendix at 69 (capitalization, underlining, and bold

       removed).


[29]   In Count II, reckless homicide as a class C felony, the State alleged that “[o]n

       or about the 25th day of April 2013, at or about the Mile Marker 43 in the

       Eastbound Lane I-94, LaPorte County, State of Indiana, Howard B. Gutenstein




       4
        Ind. Appellate Rule 49(B) provides that “[a]ny party’s failure to include any item in an Appendix shall not
       waive any issue or argument.”

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                      Page 20 of 39
       did recklessly kill another human being, to-wit: Steve Lunn.” Id. at 13

       (capitalization and bold removed). At the time of the offense, Ind. Code § 35-

       42-1-5 provided that “[a] person who recklessly kills another human being

       commits reckless homicide, a Class C felony.” 5 The charging information for

       Count II tracks the language of the relevant statute and alleges the commission

       of every necessary element of the crime. Gutenstein also does not assert that

       the probable cause affidavit, which he admitted to the trial court was filed with

       the charging information, did not include additional facts. We cannot say that

       the charging information for Count II was facially deficient or that the trial

       court abused its discretion by denying Gutenstein’s motion to dismiss on this

       basis.


       B. Reckless Homicide


[30]   Gutenstein asserts that the facts alleged by the State fail to support a reasonable

       inference that he recklessly killed Lunn as a matter of law. He contends that if

       the State is alleging that leaving his parked car on the highway as he stood

       along the side of the road is a reckless act, then his conduct did not substantially

       deviate from acceptable standards of conduct because Leeth also parked his

       semi in the same lane and exited his vehicle. 6 The State argues that a jury could

       conclude that Gutenstein’s conduct was reckless and caused Lunn’s death.




       5
           Subsequently amended by Pub. L. No. 158-2013, § 415 (eff. July 1, 2014).
       6
        Gutenstein asserts that the State admitted that its own allegations merely support a finding of negligence or
       gross negligence and that a charge related to the obstruction of traffic may have been the more appropriate

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                       Page 21 of 39
[31]   Ind. Code § 35-41-2-2 provides that “[a] person engages in conduct ‘recklessly’

       if he engages in the conduct in plain, conscious, and unjustifiable disregard of

       harm that might result and the disregard involves a substantial deviation from

       acceptable standards of conduct.” “Proof that an accident arose out of the

       inadvertence, lack of attention, forgetfulness or thoughtfulness of the driver of a

       vehicle, or from an error of judgment on his part, will not support a charge of

       reckless homicide.” Whitaker v. State, 778 N.E.2d 423, 425 (Ind. Ct. App. 2002)

       (quoting Beeman v. State, 232 Ind. 683, 690, 115 N.E.2d 919, 922 (1953)). We

       have previously held:

                [R]elatively slight deviations from the traffic code, even if they
                technically rise to the level of “reckless driving,” do not
                necessarily support a reckless homicide conviction if someone is
                subsequently killed. Some gross deviations from the traffic code,
                however, may under certain circumstances be such a substantial
                departure from acceptable standards of conduct that they will
                support a reckless homicide conviction, such as ignoring traffic
                signals at a high rate of speed, driving on a dark road at night
                without headlights, or intentionally crossing the centerline
                without a legitimate reason for doing so. Speed may support a
                reckless homicide conviction, but only greatly excessive speeds,
                such as twenty or more miles per hour over the posted speed
                limit, or where inclement weather and poor road conditions
                render higher speeds greatly unreasonable.




       charge. We cannot say that the prosecutor’s comments support Gutenstein’s statement that the State
       admitted that its allegations merely support a finding of negligence or gross negligence, particularly where the
       prosecutor ultimately stated that he did not want the court to dismiss the case.



       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                        Page 22 of 39
       Id. at 426.


[32]   Based upon the charging information and the facts developed at the hearing, we

       cannot say that a driver who stops his car in the middle of a travel lane of an

       interstate highway at 2:00 a.m. and turns off the lights does not act recklessly as

       a matter of law. Accordingly, we cannot say that the trial court abused its

       discretion in denying Gutenstein’s motion to dismiss on this basis. 7


       C. Causation


[33]   Gutenstein argues that the trial court erroneously interpreted and applied the

       law as it relates to causation with respect to both Counts I and II, and that the

       clear logic and effect of the facts and circumstances before the trial court fail as

       a matter of law to support a reasonable inference that his conduct was the legal

       cause of the collision. He argues that the State cannot show that he was the

       proximate cause of the collision where he was not operating his motor vehicle




       7
         Gutenstein discusses DeVaney v. State, 259 Ind. 483, 288 N.E.2d 732 (1972), and Whitaker v. State, 778
       N.E.2d 423 (Ind. Ct. App. 2002). We find that these cases are distinguishable and do not require reversal. In
       DeVaney, the Court held: “Can the mere fact that it was shown that appellant crossed the center line while
       driving be considered driving ‘with reckless disregard for the safety of others’? We think not. Such an
       occurrence could be completely accidental.” 259 Ind. at 493, 288 N.E.2d at 738. The Court also held: “Can
       the mere fact that defendant was driving in close proximity to the time he had been drinking be sufficient to
       find ‘reckless disregard for the safety of others’? We think not. Although the evidence of intoxication could
       certainly be considered by the jury, see Patton v. State (1962), 242 Ind. 477, 179 N.E.2d 867, that alone is not
       sufficient to convict for reckless homicide.” Id. The Court concluded that the facts that the defendant
       crossed the center line and was intoxicated were insufficient to constitute reckless homicide. Id. Whitaker
       involved “a non-intoxicated, well-rested truck driver who drove slightly above the speed limit and arguably
       followed too closely behind another vehicle on a clear, dry day, with undeniably tragic results.” 778 N.E.2d
       at 428. We held that “where there is evidence of non-excessive speeding and some inconclusive indication of
       failing to maintain a proper interval, this is insufficient to establish guilt of reckless homicide beyond a
       reasonable doubt for a death resulting from a motor vehicle collision.” Id.

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                        Page 23 of 39
       at the time of the collision, his vehicle was not physically involved in the

       collision at all, and the collision resulted directly from Lunn’s act of driving into

       the back of Leeth’s semi.


[34]   The State’s position is that the trial court properly refused Gutenstein’s request

       because the factual issues he raised should be first addressed by a jury, and that

       a jury could conclude that both Leeth and Lunn’s actions were reasonably

       foreseeable responses to Gutenstein’s conduct. The State asserts that “[e]ven if

       enough time elapsed that one can infer that Lunn could have stopped if he had

       been paying close attention to road conditions, which cannot be discerned from

       the present record, a jury must still decide whether Lunn’s inattention was so

       unforeseeable as to be an intervening cause relieving Defendant of

       responsibility.” Appellee’s Brief at 38. The State contends that Gutenstein is

       not entitled to have his charges dismissed merely because he may raise some

       evidence suggesting another cause contributed to the fatal collision.


[35]   The Indiana Supreme Court discussed causation in Abney v. State, 766 N.E.2d

       1175 (Ind. 2002). In that case, the Court rejected the argument that proof that

       the defendant’s conduct was a contributing cause was all that was necessary to

       sustain a conviction under Ind. Code § 9-30-5-5 and held:


               As we stated in Micinski [v. State, 487 N.E.2d 150 (Ind. 1986),]
               “[a]nalysis of [Ind. Code § 9-30-5-5] should focus on the driver’s
               acts. . . . If the driver’s conduct caused the injury, he commits
               the crime; if someone else’s conduct caused the injury, he is not
               guilty.” 487 N.E.2d at 154. This is simply a short-handed way
               of stating the well-settled rule that the State must prove the

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 24 of 39
               defendant’s conduct was a proximate cause of the victim’s injury
               or death. Boswell v. State, 250 Ind. 607, 609, 238 N.E.2d 283, 285
               (1968) (citing, inter alia, Dunville v. State, 188 Ind. 373, 379, 123
               N.E. 689, 691 (1919)); Warner v. State, 577 N.E.2d 267, 270 (Ind.
               Ct. App. 1991). This was the basis for Abney’s defense that,
               although his vehicle struck Heffernan’s body, the evidence
               tended to show that another vehicle struck Heffernan first and
               threw Heffernan into Abney’s vehicle. If the trier of fact accepts
               Abney’s scenario, Abney’s driving may not have been a
               proximate cause of Heffernan’s death.


       766 N.E.2d at 1177-1178.8 We have previously held that “proximate cause

       questions are often couched in terms of ‘foreseeability’; an actor is not held

       responsible for consequences which are unforeseeable. In Indiana, a result is

       deemed foreseeable if it is a ‘natural and probable consequence’ of the act of the

       defendant. Bowman v. State, 564 N.E.2d 309, 313 (Ind. Ct. App. 1990) (quoting

       Outlaw v. State, 484 N.E.2d 10, 13 (Ind. 1985)), summarily aff’d in relevant part and

       vacated in part, 577 N.E.2d 569 (Ind. 1991).


[36]   The Court in Abney suggested that the issue of causation was one for the trier of

       fact by stating “[i]f the trier of fact accepts Abney’s scenario, Abney’s driving

       may not have been a proximate cause of Heffernan’s death.” 766 N.E.2d at

       1178. See also Rippy v. State, 493 N.E.2d 477, 480 (Ind. Ct. App. 1986) (“Rippy

       claims that Hogan’s own intoxication was an intervening cause of the accident.

       However, causation is a question for the trier of fact. Pollard [v. State, 439




       8
        The version of Ind. Code § 9-30-5-5 addressed in Abney provided that a person who violates Ind. Code § 9-
       30-5-1 commits a Class C felony “if the crime results in the death of another person.” 766 N.E.2d at 1177.

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                    Page 25 of 39
       N.E.2d 177 (Ind. Ct. App. 1982), reh’g denied]. Here, as in Micinski, Rippy

       presented a theory that the victim was at fault. As in Micinski, the trier of fact

       was entitled to reject Rippy’s theory of defense based upon the evidence

       presented.”), reh’g denied, trans. denied.


[37]   The record supports that Gutenstein stopped his vehicle in the right lane of I-94

       shortly after 2:00 a.m. and turned off the lights on his vehicle, and Leeth

       stopped his semi and activated his hazard lights in an attempt to warn other

       drivers. We cannot say that the trial court abused its discretion in denying

       Gutenstein’s motion to dismiss on this basis.


       D. Operating


[38]   Gutenstein argues that the court erred in failing to dismiss Count I, operating a

       motor vehicle while intoxicated causing death, because he was not operating his

       vehicle at the time of the collision, and the plain language of Ind. Code § 9-30-

       5-5 requires a showing that the defendant was, at the very least, operating his

       vehicle at the time of the accident. The State contends that the statute requires

       only that the person’s state of intoxication coincide with his operation of the

       vehicle and that the operation cause the death of another person.


[39]   At the time of the offense, Ind. Code § 9-13-2-117.5 provided that “[o]perate”

       “means to navigate a vehicle.”9 Navigate is generally defined as “[t]o plan,




       9
        Subsequently amended by Pub. L. No. 85-2013, § 16 (eff. July 1, 2013); Pub. L. No. 259-2013, § 4 (eff. July
       1, 2013); and Pub. L. No. 198-2016, § 138 (eff. July 1, 2016).

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                     Page 26 of 39
       record, and control the course and position of . . . .” THE AMERICAN

       HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1173 (4th ed. 2006).


[40]   As noted by the State on appeal, there is no clear evidence in the record

       regarding how much time elapsed between the time Gutenstein parked his car

       on I-94 and the time Lunn’s semi struck Leeth’s semi and that no one who was

       present at the time of the accident testified at the hearing. Trooper Escutia

       testified that the police received a dispatch that the individual who was driving

       the car was walking around the ditch or the canal area of I-94 prior to the crash

       and was walking away from the accident and that Leeth told him that the car

       stopped, that he stopped his semi, and that Lunn struck his semi as he

       attempted to exit his semi. However, the prosecutor suggested that Gutenstein

       exited his vehicle and that Leeth had completely exited his vehicle and talked to

       Gutenstein prior to the collision. In his reply brief, while Gutenstein argues

       that he was not operating his vehicle at the time of the collision and cites to the

       prosecutor’s comments to support his assertion that Leeth exited his vehicle,

       spoke to Gutenstein, saw Lunn approaching at an unsafe speed, and ran back to

       his semi prior to the collision, he also states in another section that the facts

       alleged “fail to establish either the time at which Mr. Gutenstein last operated

       his vehicle or the time at which the accident occurred.” Appellant’s Reply Brief

       at 21.


[41]   Even if Gutenstein was not inside his vehicle at the moment when Lunn’s semi

       struck Leeth’s semi, we cannot say that this fact standing alone means, as a



       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 27 of 39
       matter of law, that he was not “operating” the vehicle for purposes of the

       statute.


[42]   At least under certain circumstances, other courts have held that a person who

       uses a motor vehicle and places that vehicle in a position posing a significant

       risk of causing a collision constitutes operating a vehicle. See People v. Wood,

       538 N.W.2d 351, 353 (Mich. 1995) (concluding that “‘operating’ should be

       defined in terms of the danger the operating under the influence of liquor statute

       seeks to prevent: the collision of a vehicle being operated by a person under the

       influence of intoxicating liquor with other persons or property. Once a person

       using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a

       position posing a significant risk of causing a collision, such a person continues

       to operate it until the vehicle is returned to a position posing no such risk.”);

       People v. Lechleitner, 804 N.W.2d 345, 347-348 (Mich. Ct. App. 2010)

       (addressing statutes that set forth penalties for a person who “operates a motor

       vehicle” while intoxicated “and by the operation of that motor vehicle causes

       the death of another person,” define “operate” and “operating” as “being in

       actual physical control of a vehicle,” and “operator” as “every person, other

       than a chauffeur, who is in actual physical control of a motor vehicle upon a

       highway,” and holding that “[t]he statute does not require that the defendant’s

       vehicle be in motion at the time of the accident, but rather that the victim’s

       death be caused by the defendant’s operation of the vehicle while intoxicated.

       In this case, defendant was intoxicated, operated his vehicle, and crashed it,




       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 28 of 39
       with the result that it sat in the middle of the freeway at night creating a risk of

       injury or death to others.”), appeal denied.


[43]   Under the circumstances we cannot say that the trial court abused its discretion

       by denying Gutenstein’s motion to dismiss on this basis.


                                                          II.


[44]   The next issue is whether the trial court erred in denying Gutenstein’s motion

       to suppress. Gutenstein argues that he never gave his express consent to search

       and the State failed to prove, under the totality of the circumstances, that it

       obtained his knowing and voluntary consent. He asserts that the coercion that

       renders his consent involuntary “arises from an impermissibly intimidating

       environment” and that his “‘so-called consent’ can amount to no more than a

       passive submission to the supremacy of law.” Appellant’s Brief at 15. He

       contends that he was taken into custody before Trooper Escutia’s request for

       consent, that the trial court’s legal conclusions erroneously presume that the

       implied consent statute authorizes a warrantless blood draw in all cases

       involving a fatal collision, and that the court failed to appropriately analyze

       whether his consent was freely and voluntarily given under the totality of the

       circumstances. He asserts that the implied consent laws are administrative in

       nature and do not lessen the Fourth Amendment requirement that warrantless

       blood draws are justified only by proof of either a knowing and voluntary

       consent or the existence of both probable cause and exigent circumstances, and

       that the exigent circumstances exception does not justify the blood draw.


       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 29 of 39
[45]   The State maintains that the trial court properly denied Gutenstein’s motion to

       suppress because he consented to the blood draw and, even if he had not, police

       had lawful authority to take a nonconsensual blood sample under the

       circumstances. The State asserts that the fact that Gutenstein did not sign the

       forms waiving his rights and giving consent was only because Trooper Escutia,

       who was a new officer, misunderstood the forms and believed he was required

       to sign them himself to affirm that Gutenstein had been read, understood, and

       waived his rights and gave consent to the blood draw. The State also argues

       that the police presence at the scene was in response to a fatal accident

       involving two semis on the interstate and police attention was focused on Lunn

       and the accident scene. The State further posits that the fact the police post

       informed Trooper Escutia that he needed to obtain a blood sample from

       Gutenstein did not influence the voluntariness of the consent because there was

       no evidence that Trooper Escutia conveyed the message to Gutenstein. Finally,

       the State notes that the record indicates that, other than a few preliminary

       questions about the accident, Trooper Escutia only spoke to Gutenstein as

       necessary to read him his rights, confirm Gutenstein understood, and obtain his

       consent.


[46]   The admission of evidence is entrusted to the trial court’s sound discretion.

       Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). “We review a trial court’s

       denial of a defendant’s motion to suppress deferentially, construing conflicting

       evidence in the light most favorable to the ruling, but we will also consider any

       substantial and uncontested evidence favorable to the defendant.” Id. “We


       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 30 of 39
       defer to the trial court’s findings of fact unless they are clearly erroneous, and

       we will not reweigh the evidence.” Id. “When the trial court’s denial of a

       defendant’s motion to suppress concerns the constitutionality of a search or

       seizure, however, it presents a question of law, and we address that question de

       novo.” Id.


       A. Fourth Amendment


[47]   The Fourth Amendment provides:

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no Warrants shall issue, but upon
               probable cause, supported by Oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.


       U.S. CONST. amend. IV.


[48]   The taking of a blood sample is a search. Birchfield v. North Dakota, 136 S. Ct.

       2160, 2173 (2016). Normally, the Fourth Amendment is satisfied when police

       obtain a warrant. Garcia-Torres v. State, 949 N.E.2d 1229, 1237 (Ind. 2011). A

       warrant is not required, however, when there is consent to search. Garcia-

       Torres, 949 N.E.2d at 1237. Consent to search is valid when it is given

       voluntarily, and voluntariness is a question of fact determined from the totality

       of the circumstances. Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93

       S. Ct. 2041 (1972)). Voluntariness is not vitiated merely because the defendant

       is in custody. Id. (quoting United States v. Watson, 423 U.S. 411, 424, 96 S. Ct.

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 31 of 39
       820 (1976)). Although a failure to provide Miranda warnings is a factor to be

       considered in the totality of the circumstances analysis, it is not dispositive. Id.

       The Fourth Amendment does not require a Miranda warning before officers ask

       for consent to search. Id. “It is well established that a search is reasonable

       when the subject consents and that sometimes consent to a search need not be

       express but may be fairly inferred from context.” Birchfield, 136 S. Ct. at 2185

       (citations omitted).


[49]   To the extent Gutenstein argues that Trooper Escutia asserted implicit and

       unlawful claims of authority over him through continuing violations of his

       Fourth Amendment rights, we disagree. Gutenstein contends that Trooper

       Escutia patted him down and “removed his keys from his left pants pocket,

       without an explanation or a request for consent, and used them to unlock Mr.

       Gutenstein’s parked car, open the glove compartment, and take Mr.

       Gutenstein’s vehicle registration.” Appellant’s Brief at 18 (citing Transcript at

       50-51). The portion of the transcript cited by Gutenstein indicates that Trooper

       Escutia testified that the keys were located in Gutenstein’s left pocket of his

       pants, but does not indicate that Trooper Escutia patted Gutenstein down,

       removed the keys from his pocket, or failed to ask Gutenstein for his consent to

       unlock his car or access the glove compartment.


[50]   Gutenstein also contends that Trooper Escutia illegally seized him when he

       placed him in the patrol vehicle because he did not have probable cause to

       arrest him. Gutenstein posits that “[b]y his own admission, Trooper Escutia’s

       [sic] determined that he had probable cause to arrest Mr. Gutenstein based

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 32 of 39
solely on the odor of alcohol and the fact that there had been a fatal collision.”

Appellant’s Brief at 17 (citing Transcript at 35). The portion of the transcript

cited by Gutenstein indicates that Trooper Escutia based his finding of probable

cause on the two facts mentioned by Gutenstein, as well as his observation that

Gutenstein may have been under the influence of alcohol. During direct

examination of Trooper Escutia, the following exchange occurred:


        Q      . . . So then basically your probable cause at the scene was
        that – for the, for the blood test was the fatality at the scene or the
        serious bodily injury, plus your observation that he may have
        been under the influence of alcohol?


        A        And his odor, sir.


        Q        And his – that’s what I mean, the odor?


        A        Yes.


Transcript at 35. During cross-examination, Gutenstein’s counsel questioned

Trooper Escutia regarding the form titled “Law Enforcement Officer’s

Certification To Physician of Death or Serious Bodily Injury,” which stated that

Trooper Escutia had probable cause to believe that Gutenstein operated a

vehicle while intoxicated. State’s Exhibit 1. Trooper Escutia testified that he

signed his name to the form certifying that he had probable cause to believe that

Gutenstein had committed the act of operating while intoxicated based upon

his observing the odor of alcoholic beverages and his behavior at the crash

scene including “how he was walking slow,” “his slow draw [sic],” his


Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 33 of 39
       bloodshot and glassy eyes, and his “ability to be nonchalant and unconcerned

       for what had just happened.” Transcript at 44. We cannot say that Trooper

       Escutia did not have probable cause to place Gutenstein in his patrol vehicle.

       See State v. Gilbert, 997 N.E.2d 414, 417 (Ind. Ct. App. 2013) (holding that an

       officer’s detection of a strong odor of alcohol coming from the defendant and

       observation that the defendant ran a stop sign and stumbled while attempting to

       exit his vehicle were sufficient to constitute probable cause and that the

       defendant’s arrest and transportation to the roll call site did not violate his rights

       under the Fourth Amendment).


[51]   While Trooper Escutia placed Gutenstein in handcuffs and in the front seat of

       his police vehicle, we cannot say that this act rendered Gutenstein’s consent

       involuntary. The record reveals that Trooper Escutia read Gutenstein his

       Miranda rights and the implied consent warning while he was in the patrol

       vehicle. Specifically, Trooper Escutia informed Gutenstein that he had the

       opportunity to submit to a chemical test and of the consequences for failing to

       take the test. Trooper Escutia testified that Gutenstein verbally indicated that

       he understood his rights under Miranda and the implied consent warnings.

       Trooper Escutia told Gutenstein that he was going to take him to the hospital

       for a blood draw, and Gutenstein stated: “[Y]es.” Transcript at 56.


[52]   At the hospital, Trooper Escutia gave Gutenstein a printed sheet of the Miranda

       warning and read and went through a form containing a Miranda warning and

       an implied consent warning with him. A part of the form again informed

       Gutenstein that he had the opportunity to submit to a chemical test and

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 34 of 39
       informed him of the consequences of refusing. Trooper Escutia and the

       phlebotomist explained to Gutenstein that there was going be blood drawn

       from his body. Trooper Escutia testified that Gutenstein acknowledged that he

       understood his rights and consented to the blood draw. Gutenstein was not

       handcuffed and did not voice any objection or concern when his blood was

       drawn.


[53]   Under the circumstances, we conclude that Gutenstein’s consent was voluntary.

       Accordingly, the blood draw was not a violation of the Fourth Amendment.

       See Garcia-Torres, 949 N.E.2d at 1237 (holding that the defendant consented to a

       cheek swab where the officer described the procedure and asked defendant if it

       was okay, the defendant answered “no problem,” the defendant opened his

       mouth and cooperated and was helpful through the entire procedure); Cochran

       v. State, 771 N.E.2d 104, 108 (Ind. Ct. App. 2002) (holding that the trial court

       properly denied the defendant’s motion to suppress his chemical test results

       where the defendant consented to the chemical testing), trans. denied.10




       10
          Gutenstein cites Thurman v. State, 602 N.E.2d 548 (Ind. Ct. App. 1992), trans. denied, and argues that this
       case compels the same conclusion. In Thurman, five or six police officers swooped in on the defendant and
       his companions, blocking their exit and ordering them out of a vehicle, and the defendant and the others
       were then forced to keep their hands on the vehicle while each one was patted down. 602 N.E.2d at 552. A
       detective later testified that he asked the defendant for permission to remove paperwork out of the glove
       compartment and the defendant consented. Id. On appeal, the court noted that the consent occurred while
       the defendant was surrounded by five other officers and still being forced to keep his hands on the vehicle and
       was not advised of his Miranda rights nor informed in any way that he could refuse the detective’s request.
       Id. The court concluded that “[g]iven this intimidating atmosphere, [the defendant’s] consent was merely
       submission to the supremacy of the law rather than a voluntary relinquishment of a known right.” Id. at 552.
       We find Thurman distinguishable.
       Gutenstein also argues that “the trial court’s conclusions suggest that the State bear[s] the burden of proving a
       knowing and voluntary consent only where it first fails to establish compliance with the implied consent

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                         Page 35 of 39
       C. Article 1, Section 11


[54]   Article 1, Section 11 of the Indiana Constitution provides:

                The right of the people to be secure in their persons, houses,
                papers, and effects, against unreasonable search or seizure, shall
                not be violated; and no warrant shall issue, but upon probable
                cause, supported by oath or affirmation, and particularly
                describing the place to be searched, and the person or thing to be
                seized.


[55]   Although its text mirrors the federal Fourth Amendment, we interpret Article 1,

       § 11 of our Indiana Constitution separately and independently. Robinson, 5

       N.E.3d at 368. “When a defendant raises a Section 11 claim, the State must

       show the police conduct ‘was reasonable under the totality of the

       circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d 1200, 1205-1206

       (Ind. 2008), reh’g denied). “We consider three factors when evaluating

       reasonableness: ‘1) the degree of concern, suspicion, or knowledge that a

       violation has occurred, 2) the degree of intrusion the method of the search or

       seizure imposes on the citizen’s ordinary activities, and 3) the extent of law

       enforcement needs.’” Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind.

       2005)).




       statute.” Appellant’s Brief at 19. The trial court’s order states in part: “Regardless of Trooper Escutia’s
       failure to obtain the written consent of the defendant, the evidence supports the conclusion that the defendant
       knowingly and voluntarily consented to the blood test both in word and in deed.” Appellant’s Appendix at
       100. Given that the trial court found that Gutenstein consented to the blood draw and we cannot say that the
       trial court abused its discretion in doing so, we need not address the impact of the implied consent statute.

       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016                       Page 36 of 39
[56]   Gutenstein contends that the degree of suspicion is moderate at best given that

       he was not questioned about and never admitted to his operation of his motor

       vehicle, he never admitted to drinking, and there was no evidence that either he

       or his vehicle was actually involved in the collision, and that the intrusiveness

       of the search is high where it involves a nonconsensual warrantless blood draw.

       As for the extent of law enforcement needs, Gutenstein maintains that there

       was no evidence of any special needs of law enforcement to justify a

       nonconsensual warrantless blood draw. The State’s position is that the blood

       draw was reasonable under the totality of the circumstances.


[57]   We consider “the degree of concern, suspicion, or knowledge that a violation

       has occurred.” Litchfield, 824 N.E.2d at 361. When Trooper Escutia arrived at

       the scene he discovered a semi with heavy damage and a severely injured Lunn

       inside. He learned that the vehicle driven by Gutenstein had previously made

       unsafe lane movements, slowed down to twenty-five miles per hour, and then

       stopped in the right lane of I-94. Gutenstein walked very slowly toward him

       and when Trooper Escutia asked him if he had been drinking, Gutenstein said

       that he was just tired. Trooper Escutia smelled the odor of alcohol coming

       from Gutenstein and observed that he “seemed confused,” had “no idea what

       had happened or transpired at the accident,” had bloodshot eyes that were

       “kind of glassy,” and he spoke with a “very slow draw [sic].” Transcript at 32,

       34. We conclude that the degree of concern, suspicion, or knowledge that a

       violation had occurred was high.




       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 37 of 39
[58]   Regarding the degree of intrusion, the record reveals that Trooper Escutia twice

       informed Gutenstein of his Miranda rights and Indiana’s implied consent law,

       and informed him of the opportunity to submit to a chemical test. Gutenstein

       verbally indicated that he understood his rights and the implied consent

       warnings. Trooper Escutia and the phlebotomist explained to Gutenstein that

       there was going to be blood drawn from his body. He consented to the blood

       draw and did not voice any objection or concern when his blood was drawn.

       Under these circumstances, this degree of intrusion was not high.


[59]   We note that the Indiana Supreme Court has observed that few Hoosiers would

       dispute the heartbreaking effects of drunk driving in our state and that law

       enforcement has a strong interest in preventing crashes involving alcohol-

       impaired drivers. See Robinson, 5 N.E.3d at 368; see also Frensemeier v. State, 849

       N.E.2d 157, 164 (Ind. Ct. App. 2006) (addressing a defendant’s claim that a

       blood draw violated Article 1, Section 11 of the Indiana Constitution, and

       observing that the law enforcement needs were great in this instance, given the

       desire to remove intoxicated drivers from our highways and the motor vehicle

       accident resulted in injuries to both drivers), reh’g denied, trans. denied. Under

       the totality of the circumstances, we conclude that the blood draw was

       reasonable and did not violate Gutenstein’s rights under Article 1, Section 11 of

       the Indiana Constitution.


                                                    Conclusion

[60]   For the foregoing reasons, we affirm the trial court’s denial of Gutenstein’s

       motion to dismiss and motion to suppress.
       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 38 of 39
[61]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 46A04-1511-CR-1892 | August 31, 2016   Page 39 of 39
