Baker, J.
Tonya Herron … argues that the warrant authorizing a blood draw lacked probable cause where the officer’s probable cause affidavit left several material sections blank. Finding a lack of probable cause to issue the warrant, we reverse.
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On August 16, 2013, Officer Carey stopped Herron’s car to investigate whether she was intoxicated. [Footnote omitted.] Officer Carey informed Herron of Indiana’s implied consent law [footnote omitted] and asked her whether she would submit to a chemical test to determine her intoxication level. When she declined, Officer Carey filled out a probable cause affidavit for a blood draw.
The boilerplate introduction to the affidavit states that Officer Carey had reason to believe “that there is now concealed certain evidence, namely: Blood in such person, which is evidence of the crime of operating a vehicle/motor vehicle while intoxicated . . . and tends to show that said person committed such offense[.]” [Record citations omitted throughout.] Based on the “X” he placed on the form, his affidavit goes on to say, “In the course of my duties I had occasion to investigate . . . the scene of an operating a vehicle while intoxicated. Officer Carey observed erratic and/or unlawful motor vehicle operation as follows . . . .” The space underneath this prompt was left blank, and all parties agree it was done so by mistake. Officer Carey also did not write anything under the prompt, “I believe that above-named individual was the operator of the motor vehicle in question because . . . .”
His affidavit does mention [specific] indicia of intoxication … [and] states that Herron refused to consent to a certified chemical test after being advised of the implied consent law. The judge signed the warrant, and a blood sample was taken.
… Herron filed a motion to exclude the evidence obtained by the blood draw. After a … hearing, the trial court denied her motion. …
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Herron properly brings one argument on appeal, namely, that the affidavit did not include enough specific facts to support probable cause for a warrant. [Footnote omitted.] She argues that since the only mention of a motor vehicle is in the affidavit boilerplate, “the application form does not even contain an individualized allegation that Herron operated a vehicle at all.”
We note that the … use of boilerplate language in a warrant affidavit is valid “as long as the affidavit contains sufficient facts specific to the search at issue to establish probable cause . . . .” [Citation omitted.]
The State offers four arguments as to why the magistrate had a substantial basis to believe Herron was operating a vehicle. First, it argues that the following statement contained in the affidavit creates such a basis: “which is evidence of the crime of operating a vehicle/motor vehicle while intoxicated . . . .” But these words are pure boilerplate. … Under this argument, a prefabricated form with this single sentence, a defendant’s name at the top, and an officer’s signature at the bottom would be sufficient to support a warrant. Such an argument is unavailing.
Second, the State points to more boilerplate on the form: “In the course of my duties, I had occasion to investigate . . . the scene of an operating a vehicle while intoxicated.” This argument fails for the same reason as the first: this language is pure boilerplate without any facts specific to the search at issue. …
Third, the State argues that the affidavit does contain facts specific to Herron because Officer Carey filled out the date, time, and intersection of where he saw Herron … [and that] combined with the above-mentioned boilerplate, “these statements create a clear inference that Defendant is the person who was allegedly operating the vehicle stopped at Southport and McFarland on August 16th.”
This argument fails because the State is misapplying the “substantial basis” rule. Our standard of review is not whether the magistrate had a substantial basis to understand what crime an officer is alleging; it is instead whether the magistrate had a substantial basis to believe that probable cause of a crime and evidence thereof existed. Put pithily, if an officer’s affidavit stated solely that an individual “committed a crime that rhymes with schmurder,” a magistrate would have a substantial basis to believe the officer was talking about murder, but would not have a substantial basis to believe that probable cause existed regarding a murder. [Citation omitted.] Reading the affidavit in this case, a magistrate would clearly have a substantial basis to believe that Officer Carey meant to allege that Herron operated a vehicle while intoxicated, but would not have a substantial basis to find probable cause that Herron actually did commit that offense.
Fourth, the State argues that when Officer Carey placed an “X” next to the statement, “The above named individual has refused to consent to a certified chemical test after being advised of the Indiana Implied Consent Law,” he provided enough information to satisfy the substantial basis for probable cause standard [because] the Implied Consent Law … only applies to drivers[, and] courts should presume that officers know Indiana laws [and] would only read the law to someone operating a vehicle….
This argument fails. … Although we do presume that officers know and follow the law, nothing … forbids an officer from offering a chemical test for intoxication to a passenger or a pedestrian. We cannot agree that an officer reading a law to an individual creates probable cause to believe that individual violated a law.
In summary, when one focuses on the individualized information contained in the affidavit, rather than the boilerplate, one finds the following: at 9:04 p.m. on August 16, 2013, at the intersection of Southport Road and McFarland Boulevard, Officer Carey noticed that Herron exhibited signs of intoxication, so he read to her Indiana’s Implied Consent Law but she refused to consent to a chemical test. This combination of facts does not create probable cause that a crime was committed, and therefore the warrant was invalid.
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… [T]he good faith exception does not apply to this error. The error was made first by the officer and so the public policy of incentivizing better police behavior still applies. Affirming a form affidavit that does not, in its individualized portions, include a crime would come much too close to the obliteration of the exclusionary rule that our Supreme Court has cautioned against.
The judgment of the trial court is reversed.
Bailey, J., and Mathias, J., concur.