Kolish v. State
2011 Ind. App. LEXIS 980
| Ind. Ct. App. | 2011Background
- Kolish was stopped for dangerous driving and suspected of intoxication in Pulaski County; deputy observed signs of impairment and collected evidence (odor, red eyes, slurred speech, beer cans).
- Kolish admitted drinking; field sobriety tests were failed; blood was drawn after a hospital transport and preliminary refusal. Deputy Rogers obtained a probable cause affidavit and a search warrant to draw Kolish's blood; the blood BAC was 0.16%.
- Kolish was charged with operating a vehicle with BAC at least .15; he moved to suppress the blood evidence on grounds of lack of probable cause and improper drawing procedure; the trial court denied. Bench trial resulted in conviction; Kolish appeals. Court affirms.
- The search warrant issue centers on whether the probable cause affidavit sufficiently described the time/date of the offense; the blood draw issue centers on hospital protocol compliance and statutory authorization for the blood draw.
- Indiana health policy and evidentiary standards are reviewed with deference to magistrate findings; the appeal challenges are resolved by examining the record at the suppression and trial stages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause sufficiency for blood warrant | Kolish argues the affidavit omits date/time of offense. | State contends affidavit, read with warrant, shows probable cause. | Probable cause found; warrant supported. |
| Admissibility of blood test—protocols and authorization | Kolish claims hospital protocol and statute invalidates the draw. | State shows protocol followed and Joseph authorized under statute after 2010 amendment. | Test admissible; amendment retroactive; draw authorized; evidence admitted. |
Key Cases Cited
- Combs v. State, 895 N.E.2d 1252 (Ind. Ct. App. 2008) (probable cause standard for warrants; deference to magistrate)
- Query v. State, 745 N.E.2d 769 (Ind. Ct. App. 2001) (totality-of-the-circumstances review for probable-cause determinations)
- Illinois v. Gates, 462 U.S. 213 (1983) (probable cause requires a practical, common-sense decision; fair probability)
- Foster v. State, 633 N.E.2d 337 (Ind. Ct. App. 1994) (read affidavit and warrant together when related; sufficiency from totality of evidence)
- Boston v. State, 947 N.E.2d 436 (Ind. Ct. App. 2011) (statutory amendment retroactive for hospital blood draws)