HOWARD v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] William Burn Howard appeals his conviction for Class A misdemeanor operating a vehicle while intoxicated endangering a person, arguing the trial court committed fundamental error in admitting his blood-test results. Finding no error, we affirm.

Facts and Procedural History

[2] In July 2021, the St. Joseph County Police Department was dispatched to an accident around 5:40 p.m. When Corporal Everett Warren arrived, Howard was trapped in his pickup truck, which was upside down. Corporal Warren noticed several beer cans, both empty and full, in and around Howard's truck. After the fire department extricated Howard from his truck, he was taken to an ambulance. Howard was “angry, upset, yelling, screaming. Yelling curse words at everybody that was around him.” Tr. p. 100. Corporal Warren couldn't understand everything Howard was saying because he “was slurring too much.” Id. at 102. Corporal Warren also noticed “a strong odor of alcohol” coming from Howard when he spoke. Id. at 100. Due to “the severity of the crash” and Howard “being mad at the world,” Corporal Warren did not administer any field-sobriety tests. Id. at 102.

[3] Howard was transported to the hospital. While Howard was in the emergency room, a blood draw couldn't be performed because the nursing staff was tending to his injuries. Meanwhile, Corporal Josh Voreis obtained a warrant for a blood draw. Howard was later transferred to the ICU, where his blood was drawn at 7:55 p.m. Corporal Voreis used a blood-draw kit, labeled the vials, and handed the vials to Krista Myers, a registered nurse. After Nurse Myers collected the blood and returned the vials to Corporal Voreis, he put them in the kit, sealed it, and sent it to the Indiana State Department of Toxicology for analysis. Testing later revealed that Howard's blood-alcohol content was 0.189.

[4] The State charged Howard with Count I: Class A misdemeanor operating a vehicle while intoxicated endangering a person and Count II: Class A misdemeanor operating a vehicle with an alcohol-concentration equivalent of 0.15 or more. At the April 2024 jury trial, Nurse Myers testified that the hospital had policies and procedures for blood draws, which were developed by a physician, and that she was trained in them. Although she didn't specifically recall collecting Howard's blood in July 2021, she said she would have followed these policies and procedures. If she hadn't, any deviations would have been noted in Howard's medical records. In addition, the forensic scientist who tested Howard's blood testified about the results, which were admitted into evidence. Howard did not object to the admission of the results.

[5] The jury found Howard guilty of both counts, but the trial court sentenced him only on Count I to 365 days in jail.

[6] Howard now appeals.

Discussion and Decision

[7] Howard contends the trial court committed fundamental error when it admitted his blood-test results because the State “failed to lay a proper foundation” as required by Indiana Code section 9-30-6-6(a). Appellant's Br. p. 10. “Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to make a fair trial impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied. To establish fundamental error, the defendant must show that, under the circumstances, the trial court erred in not sua sponte raising the issue because the alleged error constituted a clearly blatant violation of basic and elementary principles of due process and presented an undeniable and substantial potential for harm. Id.

[8] Section 9-30-6-6(a) provides that blood samples must be collected by:

A physician, a person trained in retrieving contraband or obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician, or a licensed health care professional acting within the professional's scope of practice and under the direction of or under a protocol prepared by a physician[.]

Howard argues that “the record is devoid of evidence that a physician prepared the protocol followed by [Nurse Myers.]” Appellant's Br. p. 9. In support of his argument, Howard relies on Combs v. State, 895 N.E.2d 1252 (Ind. Ct. App. 2008), trans. denied. There, the technician who drew the defendant's blood testified about the process she used. However, the record “was devoid of evidence that a physician prepared the protocol” that the technician followed. Id. at 1258. When the results were later offered into evidence, the defendant objected on grounds that the State failed to present evidence that the technician collected the blood using a protocol prepared by a physician. The trial court admitted the results into evidence. On appeal, we held that because the State failed to present evidence that the technician collected the defendant's blood “under the direction of or under a protocol prepared by a physician” as required by Section 9-30-6-6(a), the trial court abused its discretion in admitting the evidence. Id.

[9] Combs does not control here. First, in Combs, the defendant objected to the admission of the blood-test results, and thus a fundamental-error analysis was not used. Second, and more importantly, Combs was “devoid” of any evidence that the technician followed a physician-approved protocol. Here, in contrast, Nurse Myers testified that her hospital had a protocol for blood draws, that a physician approved the protocol, and that she was trained in and followed the protocol. Accordingly, the State laid a proper foundation for the admission of Howard's blood-test results. See Martin v. State, 154 N.E.3d 850, 853 (Ind. Ct. App. 2020) (finding that the State laid a proper foundation for the admission of the defendant's blood-test results where a nurse testified “that she was trained in legal blood draws, that her hospital had a protocol for legal blood draws, that a physician approved that protocol, and that she followed that protocol”), trans. denied. There is no error, much less fundamental error, in the admission of Howard's blood-test results.¹

[10] Affirmed.

FOOTNOTES

1.   Howard also argues the evidence is insufficient to support his conviction, but his analysis is based on us finding fundamental error in the admission of his blood-test results. Because we find that the results were properly admitted, we need not address his sufficiency challenge.

Vaidik, Judge.

Bailey, J., and DeBoer, J., concur.