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Gutenstein v. State

Court of Appeals of Indiana

August 31, 2016

Howard B. Gutenstein, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the LaPorte Superior Court Trial Court Cause No. 46D01-1304-FC-157 The Honorable Michael S. Bergerson, Judge

          ATTORNEYS FOR APPELLANT John Mark Vouga Nicholas Barnes Vouga & Associates, LLC Portage, Indiana

          ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

          Brown, Judge.

         [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 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 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].

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.

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 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 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?
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.

         [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 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, and that he saw an argument that he could make for ...


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