*1 portions accordingly. resentence Smith In all other review of selected jury’s judgment respects, is affirmed. a retrial amount to sound within trial court’s and was well STATON, JJ., BAKER and concur. a fair was not denied
discretion. Smith replay portions of selected trial
VI. failed judge claims the trial Lastly, Smith case dictates of statute and to follow the presumptive he enhanced the law when Indiana, Appellant STATE robbery result- for the offense of sentence (Plaintiff Below), ing bodily injury and ordered in serious on sentences all convictions consecutively. concern is Smith’s served ROBBINS, Appellee M. Charles sentencing judge listed the statu- that the (Defendant Below). stating the without also tory considerations No. 69A04-8905-CR-194. particular pertinent to facts Smith into his determination of sentence. entered Appeals Court Fourth District. sentencing have reviewed Feb. and, contrary asser to Smith’s statement tions, adequate enhanced find it to sustain sentencing. We note
and consecutive pointed aggravat sentencing court to two peculiar to the case—Smith’s ing factors pre-sen version of crime in the revised investigation report the fact that tence time of was defenseless at the the victim statutory killing which, in addition to the — factors, of en imposition affected One hanced and consecutive sentences. aggravating factor is sufficient valid con imposition of increased and justify the v. State secutive sentences. Guenther Little 501 N.E.2d Ind., factors, the mitigating In the absence statement of reason need trial court’s balancing process between articulate factors. mitigating aggravating (1986),Ind., 498 N.E.2d Townsend State Nonetheless, have indi as we cated, the cause be remanded resentencing robbery conviction felony. C class resulting in robbery The conviction vacated, the bodily injury is ordered serious judg- entry is remanded robbery a class C conviction ment of trial is directed felony, and the *2 Margaret Mary Community
was taken to Batesville, (“Margaret Mary”), in Hospital treatment; subsequent- he was Cincinnati, hospital in ly airlifted to a Ohio. Trooper Henry Vernon of the Indiana dispatched to the State Police had been he at scene of the accident. When arrived hospital, the attend- he test ing physician upon Defendant. The directed Gen., Pearson, Michael Atty. Linley E. Bartlett, supervisor, per- Judy the lab Gen., Worden, Deputy Atty. Office Gene form the test. Bartlett drew appellant. Gen., Indianapolis, Atty. test; performed Defendant was found Jones, Jones, Bates- E. & Mark Shields have a blood alcohol content of .169%. ville, appellee. Trooper Henry Margaret Mary returned to following day subpoena with a for the SUMMARY CASE test. Bartlett record of the blood alcohol subpoena complied with the and turned CHEZEM, Presiding Judge. the record. State, appeals the the trial Appellant, 14, 1988, charged July Defendant was On Defendant-Appellee’s, granting court’s Operating a Intoxicat Vehicle While Robbins’, suppress the results of motion to ed, misdemeanor, Operating a a class A performed upon alcohol a serum blood Intoxicated, felony, Vehicle While a class D acci- following an automobile Defendant Operating a With Blood Vehicle .10% dent. Content, Alcohol a class C misdemeanor. suppress Defendant filed a motion to evi ISSUE hearing on the motion to dence. At the places limita- the I.C. 9-11-4-6 Whether suppress argued Defendant the State did upon to obtain the tions the State’s comply requesting with I.C. 9-11-4-6 alcohol test. of a serum blood results that a test be The trial court
granted motion. Defendant’s
FACTS AND DECISION DISCUSSION was involved July Defendant On accident; argues that subsection one car Defen- person, in a one sets forth the conditions injuries. dant sustained serious statute, (1) Disclosing test results in accordance it existed at the time of the read, section; offense, part, alleged pertinent as fol- with this blood, urine, (2) Delivering or other bodi- lows: ly sample in accordance with this person acting A or section; direction of a who: blood, urine, (3) Obtaining a or other bodi- or other Obtains a ly section; accordance with this request at the from a under this sec- Disclosing tion; or testifying deputy at the for use at or blood, or the test on Performs a chemical as to facts observed criminal trial urine, bodily substance obtained or other formed; opinions or or person; deliver the or shall (5) Failing from whom a to treat law en- results of the test to a disclose the urine, bodily substance sam- requests it as a officer who request ple at the of a law enforce- is obtained Samples a criminal officer, declines ment if provided enforcement to law results shall person has not consented to even if the arising Injury any person release. authorized their or otherwise good performance under this (b) agent of duties in faith hospital, physician, a or an criminally civilly liable for: section. either is not requiring a alcohol tient met before a blood or, per- if one is performed physician’s one who at direction formed, turned before the performs divulge *3 that urges to the State. of to a the results the test law enforce- interpreted be (g) should subsection by ment officer to so do statute; ar- upon the limitation prosecutor’s a member of the office as those circum- gues subsection identifies investigation. part of a criminal have a permit stances which any rights the statute does not create test. De- physician conduct defendant, in a criminal and in fact taking of the blood fendant claims the the right the limits to invoke defendant’s (1) the sample the statute since: violated physician-patient the pre- to writing in to the certify did not vent the disclosure of blood alcohol re- attending that officer had physician the sults, might which otherwise be con- that Defendant probable cause to believe being privileged as strued information. 9-11-2; (2) the acci- had violated I.C. and Nothing in the statute indicates it was in Defendant was involved dent to intended restrict the a law of bodily injury or not result in the serious hospital to order enforcement official another. death of to personnel sample draw a for (g) is that The State counters a purposes analysis by state law en- limitation, rather identifies those not a but purposes analy- agency to permit the State circumstances which added). (emphasis sis. require that physician a obtain a Id. sample bodily urine other subject the from the Judge analysis predeces- Miller’s present is to In Zimmerman v. State sor statute also relevant the (1984), Ind.App., chap- The statute is the interpreted the statute. this implied present I.C. 9- which deals consent. To predecessor statute ter with as follows: Judge implied 11-4-6. Miller wrote the statute a limitation on read at odds with the rest of consent be import of statute is ... The clear noted, Miller chapter. Judge the scope physician-pa- the As to narrow the article, (c) priv- person from the purposes cause to the whom the of this the believe For ileges arising patient-physician sample rela- from is to be has violated IC 9—11— obtained tionship results, samples, apply to not the do 2; section, testimony described in this (3) the whom is to results, samples, and and these transported hospital obtained been to a has proceeding may in accord- be admitted in a facility for or other medical applicable ance with the rules of (4) is to from whom (d) exceptions patient-physician The to involved in a motor be obtained has been (c) relationship specified do not in subsection in the serious vehicle accident that resulted relationships any proceedings affect in those another; bodily injury death of by this article. not covered (5) that caused the serious the accident (e) samples results and obtained The test injury bodily another no or death of occurred a law enforcement officer under subsection (3) before the time the more than three hours only may be disclosed requested; sample is and attorney deputy prosecuting aor (6) use of reasonable no more than proceeding or use as evidence in a criminal sample. necessary to obtain force proceedings this article. under (h)If whom: (f) requires physi- Nothing in this section bodily is to be The direction of cian or a under the (g) does not con- under subsection obtained perform a test. chemical person acting sent; or a sample; taking of a the law resists the shall obtain the direction of force use reasonable enforcement officer sam- (who autho- an to assist individual ple if: sample) in obtain a rized under this section requests that taking obtained; has certi- law enforcement officer (1988 ed.). probable writing that the officer has fied any rights 6(g) in a was followed the facts adduced does not create defendant, herein it limits his make obvious that the criminal but rather complied particulars. two right privilege. was invoke any There an absence the record agree with the State writing mention of the officer’s certified as a checklist which (g) was intended about and an absence may request it the State fulfill before injury an- relating or death of that blood alcohol other. Rather, (g) was enacted to fill a gap in the statute. policies the statute reasons *4 as set v. are out Zimmerman (g), Prior to enactment wholly tangential the only material issue hospi- or member of a reluctant appeal. in this staff, turning such tal could avoid intoxication to the State re- I affirm the trial court. fusing sample or to draw a conduct a 1, swpra. test.2 n. chemical Subsec- See permits require (g)
tion a reluc- sample, a blood tant to draw met.3 certain conditions are Here, there was no evidence that attending physician was reluctant to draw Therefore, the blood apply case. does SUPPLY, Petitioner, INC., ENERGY performed, test was Since blood alcohol (a) required that the results be turned over the State. Defendant does INDIANA DEPARTMENT OF STATE argue lacked the officer REVENUE, Respondent. cause; therefore, the issue is waived. See No. 49T05-8908-TA-00030. 470 Whisman Fawcett Super-Valu N.E.2d Baesler’s Tax Court of Indiana. Labor, Indiana Commissioner of 243, Ind.App., 500 N.E.2d Jan. erroneously suppressed evi- trial court dence.
Accordingly, reverse the trial court’s we suppressing the order proceed- further remand for ings.
MILLER, J., concurs. J., ROBERTSON, dissents with separate opinion.
ROBERTSON, Judge, dissenting. majority
I respectfully dissent opinion.
The determinative issue whether the specified in IND. CODE 9-11-4- permits refuse effective still 2. The statute was amended March adding (g)-(j). See subsections I.C. 9-11- a chemical even if subsection (Burns Supp.); 11—4—6(f). 4-6 Ind.Stat.Ann. 1989 P.L. 92- I.C. satisfied. 9 — SEC.