Two NW Indiana papers have stories this morning about the Indiana Court of Appeals ruling Monday (see this Indiana Law Blog entry - the fourth decision in the entry) in the case of Charles Schlesinger v. State of Indiana (7/19/04 IndCtApp), where the Court reversed the trial court decision on the basis that "the trial court erred in admitting the results of a hospital toxicology blood test where the test was obtained without a warrant and was not necessary for Schlesinger’s medical care."
The Gary Post-Tribune reports:
The Indiana Court of Appeals has reversed the drunken driving conviction of suspended Valparaiso police officer Charles Schlesinger. The attorney general’s office, however, will appeal the ruling to the Indiana Supreme Court, according to Stacy Schneider, press secretary for Attorney General Steve Carter. * * *The Munster Times story reports:Appeals court judges said that although Schlesinger told Porter County police Officer Curt Jones he had consumed a couple of alcohol drinks an hour before driving, he passed field sobriety tests administered by Jones.
Schlesinger was treated at Porter Valparaiso Hospital Campus, formerly Porter Memorial Hospital, for relatively minor injuries. Two blood samples were taken,with one sent to the Indiana Department of Toxicology for analysis, while the hospital analyzed the other sample.
Schlesinger, through appeal attorney Mitchell Peters of Merrillville, maintained the trial court erred in admitting the result of the hospital blood sample. Police officers did not have a warrant to obtain a sample of Schlesinger’s blood, the appeals court judges said. The appeals court opinion said Jones lacked probable cause to order a blood draw. Schlesinger passed field sobriety tests administered by Jones, the judges said.
Schlesinger testified Jones did not ask for his consent and he did not sign a written consent form for the blood draw. The judges also said there was no evidence in the record that the blood alcohol content test was performed for medical reasons.
Deputy Prosecutor Blair Todd said the appeals court judges are creating new law. In the past, a hospital could take blood samples for their purposes and police or prosecutors could get a judge to issue a subpoena to obtain a blood sample for testing for blood-alcohol level, Todd said. “Medically necessary” conditions have now been added, Todd said.
While Schlesinger is now cleared of all the charges stemming from the May 10, 2002, incident, he will not be returning to work anytime soon.Posted by Marcia Oddi at July 21, 2004 08:28 AMThe Indiana Attorney General's Office will seek to transfer the case to the Indiana Supreme Court during the next 30 days, said press secretary Staci Schneider.
Schlesinger was cleared at trial of four of five drunken-driving charges stemming from an early morning accident at Ind. 49 and County Road 400 North. He and his wife were injured, along with two others in a second car.
The appellate court reversed the remaining misdemeanor conviction, for which he was sentenced to a year of unsupervised probation, community service and alcohol treatment. He has remained on unpaid leave from the police department.