A defendant was unable to convince the Indiana Court of Appeals the state was improperly allowed a “do-over” by being able to offer as evidence at trial an analysis of his blood that showed the presence of controlled substances.
Ruel Pedigo III was driving a tow truck along State Road 46 in Bartholomew County in January 2018 when he rear-ended a passenger car that was stopped at a traffic light. The collision killed the driver of the car, Patrick Bowman, and seriously injured his fiancee, Sarah Fliehman.
At the scene, Pedigo told police he had not anything to drink or taken any medication. Columbus Police Officer John Morphew administered a horizontal gaze nystagmus test and a portable breath test. Neither provided any indication Pedigo was intoxicated. Next, the officer took Pedigo to Columbus Regional Hosptial to have a blood draw.
Morphew read Pedigo the Indiana Implied Consent law and obtained the his consent to conduct the blood draw. Also, at the hospital, Pedigo was asked to complete additional documentation to indicate he consented to have his blood drawn. Then Alexa Nemeth, a phlebotomist at Columbus Regional Hospital, preformed the blood draw on Pedigo.
The Indiana State Department of Toxicology analyzed the blood sample and found THC-COH along with four times the therapeutic level of amphetamine and methamphetamine in Pedigo’s blood at the time of the accident.
Pedigo was charged with Level 5 felony reckless homicide, Level 4 felony causing death when operating a motor vehicle with a schedule I or II controlled substance in the blood, and Level 6 felony causing serious bodily injury when operating a motor vehicle with a schedule I or II substance in the body.
At trial in Bartholomew Circuit Court, Pedigo failed to suppress the evidence related to his blood draw but was successful in getting the court to sustain his objection to the admission of his toxicology report.
He argued the state did not present evidence to show that Nemeth had followed protocol. The state then requested permission to recall Nemeth, but again Pedigo objected, saying giving the state a “second shot at it” was not appropriate. Finding neither party had requested Nemeth be released from her subpoena, the trial court allowed her to be recalled.
After Nemeth took the witness stand again and described the steps she takes in collecting a blood sample for law enforcement, the trial court overruled Pedigo’s objection. The court based its decision on the evidence that there was an established protocol for the blood draw, Columbus Regional Health was a licensed facility and Nemeth was certified in phlebotomy. In addition, no evidence had been offered to show the reliability of the sample had been compromised.
Pedigo was subsequently convicted of all charges and sentenced to an aggregate 15-year sentence. He appealed, in part, on the grounds the trial court abused its discretion by admitting his chemical test results into evidence.
However, the Indiana Court of Appeals affirmed the conviction and sentence in Ruel P. Pedigo, III, v. State of Indiana, 19A-CR-1848.
Before the appellate panel, Pedigo renewed his arguments that the trial court abused its discretion when it admitted blood draw results into evidence at trial. He asserted the state failed to present evidence that the person who drew his blood was following the protocol prepared by a physician as required by Indiana code section 9-30-6-6.
Pedigo cited Combs v. State, 895 N.E.2d 1252 (Ind Ct. App. 2008), trans. denied. There, the Court of Appeals found the “record devoid of evidence that a physician prepared the protocol followed by” the technician, and “absolutely no evidence that she acted under the direction of a physician” when drawing Combs’ blood. Also, the appellate court held “the State failed to lay a proper foundation for admitting the blood test results.”
The Court of Appeals found Pedigo to be distinguishable from Combs in that the evidence presented established Nemeth was a person trained in obtaining bodily samples as required by I.C. 9-30-6-6(a).
“Here, the evidence most favorable to the ruling shows that Nemeth testified that she is certified in phlebotomy,” Judge James Kirsch wrote for the court. “She further testified that she followed a protocol approved by a pathologist when drawing Pedigo’s blood, and that Columbus Regional Health is a licensed hospital. Nemeth also testified about each step that she takes when she collects a blood sample for law enforcement.”