The State of Indiana filed a petition alleging seventeen-year-old L.W. was a delinquent in connection with a vehicle accident that resulted in a fatality.
After the accident, a police officer obtained a sample of L.W.’s blood. L.W. subsequently moved to suppress all evidence obtained in connection with the blood draw, claiming the officer had infringed on her statutory right to consult with her mother prior to agreeing to the procedure. The juvenile court denied L.W.’s motion.
In this interlocutory appeal, L.W. reiterates that the blood draw, absent an opportunity for parental consultation, violated her federal and state constitutional protections against unreasonable search and seizure. We reverse the juvenile court’s denial of L.W.’s motion to suppress and remand with instructions.
L.W. argues the juvenile court erred in denying her motion to suppress.
The act of drawing a person’s blood by the State, or at the direction of the State, in furtherance of a police investigation is a type of search that is subject to the warrant requirements of the Fourth Amendment and article I, section 11 of the Indiana Constitution.
The State did not obtain a warrant for L.W.’s blood draw. Under the Fourth Amendment, a warrantless search is per se unreasonable, and the State must prove one of the exceptions to the warrant requirement applies. M.O. v. State, 63 N.E.3d 329 (Ind. 2016).
“A warrantless search based on lawful consent is consistent with both the Indiana and Federal Constitutions.” Campos v. State, 885 N.E.2d 590, 600 (Ind. 2008). The State points out that, by statute, drivers impliedly consent to blood draws in connection with accidents involving serious injury or death. Ind. Code § 9-30-7-2 (2001) (implied consent is a condition of operating a vehicle in Indiana). A driver may refuse to consent, and if consent is not given, the driver is guilty of an infraction and will experience suspension of driving privileges for at least a year. Ind. Code § 9-30-7-5 (2013). But the police may not simply require a driver to submit to a blood draw if the driver refuses consent. See Hannoy v. State, 789 N.E.2d 977, 983 (Ind. Ct. App. 2003) (“Nothing in Indiana Code Chapter 9-30-7 authorizes an officer to forcibly take a blood sample if actual consent to a chemical test is not obtained”), on reh’g, 793 N.E.2d 1109 (2003), trans. denied. Instead, when a driver refuses to consent, the officer must have probable cause to proceed with a blood draw over the driver’s objection. Id. at 989.
L.W. did consent to the blood draw after Officer Cox read her an implied consent advisement, but she argues her consent was invalid because she was deprived of any opportunity to speak privately with her mother.
The State bears the burden of proving beyond a reasonable doubt that the juvenile received all of the protections of Indiana Code section 31-32-5-1, and that both the juvenile and the parent or guardian knowingly, intelligently, and voluntarily waived the juvenile’s rights. D.M. v. State, 949 N.E.2d 327 (Ind. 2011). In L.W.’s case, the evidence is undisputed that Officer Fox did not inform L.W. of her right to speak with her mother or allow them to talk in private at any time prior to the blood draw. He later conceded that advising L.W. and her mother of their right to speak privately would have taken less than ten seconds. As a result, L.W. did not receive the protections mandated by Indiana Code section 31-32-5-1.
The State does not dispute that the protections of Indiana Code section 31-32-5- 1 are applicable to juveniles undergoing breath or chemical tests pursuant to Indiana’s implied consent laws. To the contrary, the State “assum[es] for the sake of argument” that Indiana Code section 31-32-5-1 requires an officer to provide a juvenile with an opportunity for meaningful consultation prior to providing consent for such tests. Appellee’s Br. p. 13. The State instead argues the blood draw did not violate her federal and state constitutional protections against unreasonable search and seizure despite the lack of meaningful consultation.
Turning to the Fourth Amendment, the State argues that, even without a valid consent from L.W. or her mother, the warrantless blood draw was justified by exigent circumstances, specifically the loss of the evidence of possible controlled substances in her blood.
In L.W.’s case, the State failed to present any evidence that Officer Fox observed signs of intoxication, whether from alcohol or controlled substances. He did not note bloodshot eyes, slurred speech, poor dexterity, or other indicators. To the contrary, Officer Fox later testified only that he developed probable cause to believe L.W. “was the driver of a vehicle involved in a fatal or near fatal crash.” Tr. Vol. II, p. 11. The State points out L.W. told Officer Fox she did not remember the accident, did not see the motorcycle, and may have fallen asleep, but these factors, standing alone, are not indicative of intoxication. L.W. was crying at the time, and Officer Fox noted she was “emotionally upset,” which might have affected her ability to recall the accident. Id. at 13.
Further, Officer Fox repeatedly told L.W. and her mother the blood draw was merely a formality, and no one was accusing her of being impaired. Finally, he drove her to the hospital at a normal speed, with no apparent urgency. Under these circumstances, the State did not have probable cause to believe evidence of intoxication existed, and the State’s claim of exigent circumstances must fail.
The State argues any error resulting from the warrantless blood draw was harmless at best because: (1) L.W. and her mother were advised the blood draw was not mandatory; and (2) neither L.W. nor her mother testified they would have declined the blood draw if they had been given the chance to talk privately. We disagree.
Further, the State bears the burden of showing the erroneous admission of evidence was harmless. Zanders, 118 N.E.3d 736. The evidence of THC metabolite in L.W.’s blood was obtained only after L.W. and her mother consented to the blood draw. Their consent was invalid, despite the implied consent advisement and the advisement provided by the phlebotomist, because they were not advised of their right to talk privately in advance of deciding whether to consent. Further, they both testified they would have exercised their right to talk privately if Officer Fox had informed them of that right. The State’s claim that L.W. was required to prove she would have declined to consent after conferring with her mother improperly places the burden of proof on L.W. in the harmless error analysis. Further, because L.W. and her mother were deprived of their right to privately discuss the blood draw, any conclusions as to what they would have decided to do if they had been allowed to converse would be speculative at best.
For the reasons stated above, we reverse the judgment of the juvenile court and remand with instructions to grant L.W.’s motion to suppress.
Judgment reversed and remanded with instructions.
Mathias, J., and Foley, J., concur.