Due to a high volume of criminal cases and DUI investigations in Indianapolis, it is common for law enforcement to use pre-filled boilerplate affidavits and forms when filling out the proper paper work for investigations. The problem with this however, is that when articulable facts are required for probable cause in DUI search warrants, sometimes these pre-filled forms do not contain the necessary facts to establish probable cause as required under the 4th Amendment.
In Herron v. State 44 N.E.3d 833 (Ind.App. 2015), a recent Indiana Court of Appeals case from Marion County, IN, the Court reversed a conviction for DUI due to a lack of probable cause in a blood draw DUI search warrant. On August 16, 2013 Ms. Herron, an Indiana resident, was pulled over in Marion County, IN on an investigation for a possible DUI. The officer read Ms. Herron the Indiana Implied Consent Law pursuant to statute and Ms. Herron declined to consent to a breath test, as is her right. At this point, the officer was required to obtain a DUI search warrant for Ms. Herron’s blood. The officer used a boilerplate search warrant affidavit with several pieces of pre-written information including the following pre-written statement: “In the course of my duties I had occasion to investigate…the scene of an operating a vehicle while intoxicated. Officer…observed erratic and/or unlawful motor vehicle operation as follows…” The space underneath this clause was left blank by accident by the officer. It is in this space where the officer was to lay out the articulable facts of what he actually observed, where and when he observed it and who he observed doing it. This particular mistake ended up being dispositive of the case and ultimately resulted in the reversal of conviction.
Indiana Code sections 9-30-5-1(b) and 2(a) (the Indiana criminal code statute defining operating while intoxicated), both require the State to show that a person “operated” a vehicle. Without said operation requirement, there can be no DUI. Although the officer’s affidavit stated that he investigated the scene of a DUI and observed erratic and unlawful vehicle operation, he failed to include any information regarding the actual operation of a vehicle and whether he observed Ms. Herron doing so. Because operation is a necessary element of the offense of DUI, when the officer failed to articulate said element in his affidavit or DUI search warrant, he also failed to establish that a crime had been committed and therefore the warrant was invalid.
If you have been arrested for a DUI in Indiana as a result of a refusal of a chemical breath test, you need an experienced attorney that not only understands the specific laws and regulations associated with Indiana Codes 9-30-5-1(b) and 2(a), but who is also knowledgeable on 4th Amendment search and seizure law. As a former prosecutor Kevin Potts has the litigation experience necessary to assist you in your time of need. Call for a free consultation today: 317-951-0087
