Kingma v. State

140 N.E.3d 309

Jacob T. KINGMA, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 19A-CR-1661

Court of Appeals of Indiana.

Filed January 6, 2020

Publication Ordered February 3, 2020

Attorney for Appellant: Richard D. Martin, Frankfort, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Evan Matthew Comer, Deputy Attorney General, Indianapolis, Indiana

Mathias, Judge.

[1] The driving privileges of Jacob Kingma ("Kingma") were administratively suspended for two years because he refused to submit to a chemical test—a blood draw—after being stopped on suspicion of Operating While Intoxicated ("OWI"), in violation of Indiana's Implied Consent Law. Kingma filed a motion for judicial review of the suspension and a subsequent motion to correct error, which were both denied. Kingma now appeals, presenting for our review whether he established by a preponderance of the evidence that the blood draw offered to him was illusory because it was made outside a hospital and because he was not transported to a hospital.

[2] We affirm.¹

Facts and Procedural History

[3] After the events recounted infra, Officer Marisol Lopez ("Officer Lopez") of the Clinton County Sheriff's Department tendered a probable cause affidavit to the Clinton County prosecutor's office declaring that Kingma refused a chemical test. See Ind. Code § 9-30-6-7.² The affidavit triggered proceedings that resulted in the two-year administrative suspension of Kingma's driving privileges. See I.C. §§ 9-30-6-9 through 10. Kingma then sought judicial review of his suspension. The facts are as follows.

[4] Kingma was the subject of a traffic stop for failure to use a turn signal in Frankfort, Indiana, on the night of August 30, 2018. A K-9 unit gave a positive alert for drugs inside Kingma's stopped vehicle, and Officer Lopez, the responding officer, detected a strong odor of marijuana coming from Kingma. Kingma exhibited signs of intoxication, including bloodshot and glassy eyes and poor balance. Accordingly, Officer Lopez initiated an OWI investigation and administered three standardized field sobriety tests: the Horizontal Gaze Nystagmus ("HGN") test, Nine Step Walk test, and One Leg Stand test. Kingma passed the HGN test but failed the other two tests, leading Officer Lopez to conclude that Kingma was exhibiting obvious signs of impairment.

[5] At this point in her investigation, Officer Lopez read Kingma his Miranda rights. When asked, Kingma admitted to having recently smoked marijuana. Officer Lopez then informed him that she wanted to conduct further testing and subsequently read Kingma an Implied Consent advisement from a department-issued card.³ The advisement informed Kingma that Officer Lopez's observations led her to believe he had operated a vehicle while intoxicated and that he had the opportunity to submit to a chemical test. The advisement also warned that refusal to submit to the chemical test would result in the suspension of his driver's license for one to two years. Because Officer Lopez suspected Kingma was under the influence of illegal drugs, she explained to him that a blood draw was in order. Kingma did not agree to a blood draw. He was then restrained and transported to the Clinton County Sheriff's Department, which is also the county's jail. Upon arriving at the jail, Officer Lopez again read Kingma the same Implied Consent advisement and informed him that she wanted him to undergo a blood draw. Kingma again declined to agree to the blood draw.

[6] The next day, August 31, 2018, the State charged Kingma with Level 6 felony OWI endangering a person and filed a notice of intent to seek enhanced penalty for OWI based on Kingma's prior conviction for the same offense.⁴ A probable cause affidavit was filed with the recommendation that Kingma's driving privileges be suspended immediately for failure to submit to a chemical test, and on September 5, a two-year administrative suspension took effect. Appellant's App. pp. 2, 12.

[7] On April 8, 2019, Kingma filed two motions. One was to suppress the evidence obtained during the traffic stop—namely, the results of the field sobriety tests—based on Officer Lopez's alleged failure to obtain Kingma's knowing and voluntary consent to the search. And he also filed a motion for judicial review of two issues: whether Officer Lopez had probable cause to request that Kingma submit to a chemical test, and whether Kingma knowingly and intentionally refused to submit to the test after being given a non-illusory offer. The trial court held a hearing on Kingma's motions on May 31; Officer Lopez testified at that time. The trial court issued an order denying both motions in which it concluded: that suppression of the field sobriety test results was not warranted; that Officer Lopez had probable cause to believe Kingma was impaired; and that Officer Lopez's offer of a chemical test was not illusory. In support of its conclusions, the trial court stated in part:

9. Indiana law allows for an officer, upon determination of probable cause to request chemical tests of breath, blood or urine or any combination, or all three tests.

10. Indiana law does not require an officer to advise defendants of how or where a test will be performed, only that any such request for testing not be "illusory."

11. Officer Lopez testified that had Kingma consented to the blood test she was requesting, that she would have transported Kingma to the Frankfort hospital located approximately 1 [one] mile from the Clinton County jail.

12. Officer Lopez's request for a blood draw was not illusory as she was willing and able to provide transportation to Kingma for such a test had he consented.

Appellant's App. pp. 33–34.

[8] On July 5, 2019, Kingma filed a motion to correct error. Kingma argued that because Officer Lopez offered the blood draw in a location where there was no person authorized to perform the chemical test and did not specify that—if Kingma agreed to the blood draw—it would take place at a hospital, her offer was illusory, and thus Kingma's refusal was not made knowingly or intentionally. The trial court denied Kingma's motion to correct error on July 10, 2019, and Kingma filed a timely notice of appeal on July 19.

Standard of Review

[9] A trial court's order denying a motion for judicial review is an appealable final judgment. Burnell v. State , 56 N.E.3d 1146, 1149 (Ind. 2016) (citing I.C. § 9-30-6-10(g) ). Kingma sought judicial review of his suspension and bore the burden of proof by a preponderance of the evidence. I.C. § 9-30-6-10(f). A judgment entered against the party that bears the burden of proof is a negative judgment. Burnell , 56 N.E.3d at 1149–50. We will reverse a negative judgment only if it is contrary to law, meaning that "the evidence leads to but one conclusion and the trial court reached an opposite conclusion." Id. at 1150. A party appealing from a negative judgment "has a heavy burden to establish... that there was no basis in fact for the judgment rendered." Id. (citation omitted). This court considers the evidence in the light most favorable to the prevailing party and will not reweigh the evidence or judge witness credibility. Id. We interpret statutes de novo and afford the trial court's conclusion no deference. Hurley v. State , 75 N.E.3d 1074, 1077 (Ind. 2017).

Overview of Relevant Statutes

[10] All persons who operate vehicles in Indiana are subject to the state's Implied Consent Law. I.C. § 9-30-6-1. As a condition of operating a vehicle, a driver impliedly consents to submit to a chemical test⁵ when a police officer has probable cause to believe the driver has operated a vehicle while intoxicated. The general parameters of the Implied Consent Law are as follows:

(a) A law enforcement officer who has probable cause to believe that a person has committed an offense under this chapter... shall offer the person the opportunity to submit to a chemical test.

* * *

(d) A person must submit to each chemical test offered by a law enforcement officer in order to comply with the implied consent provisions of this chapter.

I.C. § 9-30-6-2.

[11] Indiana Code section 9-30-6-6 governs the protocol for obtaining samples and performing chemical testing of urine, blood and other bodily substances. Relevant provisions of the section are as follows:

(h) The person authorized under this section to retrieve contraband or obtain a bodily substance sample shall take the sample or retrieve the contraband in a medically accepted manner.

(i) This subsection does not apply to contraband retrieved or a bodily substance sample taken at a licensed hospital [as defined by statute]. A law enforcement officer may transport the person to a place where the contraband may be retrieved or the sample may be obtained by any of the following persons who are trained in retrieving contraband or obtaining bodily substance samples and who have been engaged to retrieve contraband or obtain samples under this section:

(1) A physician holding an unlimited license to practice medicine or osteopathy.

(2) A registered nurse.

(3) A licensed practical nurse.

(4) An advanced emergency medical technician (as defined in IC 16-18-2-6.5 ).

(5) A paramedic (as defined in IC 16-18-2-266 ).

(6) ...[A]ny other person qualified through training, experience, or education to retrieve contraband or obtain a bodily substance sample.

I.C. § 9-30-6-6 (emphasis added).

[12] Additionally, regarding refusal of a chemical test:

(a) ... [T]he arresting officer shall inform the person that refusal will result in the suspension of the person's driving privileges.

(b) If a person refuses to submit to a chemical test after having been advised that the refusal will result in the suspension of driving privileges [ ], the arresting officer shall do the following:

* * *

(2) Submit a probable cause affidavit to the prosecuting attorney of the county in which the alleged offense occurred.

I.C. § 9-30-6-7 (emphasis added).

[13] The law requires...