Attorneys for Appellant Attorneys for Appellee
David E. Mosley Steve Carter
Brad Jacobs Attorney General of Indiana
Christopher C.T. Stephen
Deputy Attorney General
Indiana Supreme Court
Appellant (Defendant below),
State of Indiana,
Appellee (Plaintiff below).
Appeal from the Orange Circuit Court, No. 59C01-0009-CF-63
The Honorable Larry Blanton, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 59A01-0210-CR-416
June 22, 2004
Darrell Forbes was transported to a hospital in Kentucky after a car he
was driving crashed in a single car accident in Indiana which resulted in
Michael Smiths death. The State issued a subpoena to the hospital for
his blood alcohol content test results, but the subpoena was not issued in
full compliance with the Uniform Act to Secure the Attendance of Witnesses from
Without the State. Ind. Code § 35-37-5-1 (1998). Forbes was charged
in Indiana with operating while intoxicated and operating with a BAC of .10%
or more. We hold that the hospitals compliance with the subpoena despite
its noncompliance with the Uniform Act renders the test admissible in evidence in
the Indiana court.
Factual and Procedural Background
Forbes was injured and Michael Smith was killed in a one car accident
in Orange County, in Southern Indiana. Indiana State Trooper Gregory Ashby and
emergency personnel arrived at the crash scene. Ashby requested a blood alcohol
content (BAC) test of Forbes, but Forbess injuries prevented a test at the
scene and Forbes was transported to the University of Louisville Hospital in Louisville,
Kentucky. At Ashbys request, relayed by the emergency personnel, the hospital conducted
a BAC test.
Early the next morning, Ashby contacted the hospital and was told that he
would need a subpoena to obtain the test results. One week after
the crash, Ashby obtained an Indiana subpoena from the Orange County, Indiana Circuit
Court Clerk and drove with another trooper to meet with the judge of
the Jefferson Circuit Court in Louisville, Kentucky. The Kentucky judge signed the
Indiana subpoena, and Ashby then obtained a Kentucky subpoena from the Jefferson County
Circuit Court clerk and took both subpoenas to the hospital which is in
Jefferson County where he obtained the test results. The hospital surrendered the
test in response to the subpoena. Ashby neither requested nor received any
other medical records.
In a parallel effort to obtain the test results, the Orange County, Indiana
Prosecutors office contacted the Prosecutors office in Clark County, Indiana, which is across
the Ohio river from Louisville, Kentucky. The Clark County Indiana prosecutor sent
a Kentucky subpoena by certified mail to the hospital. The hospital responded
by sending the requested documents to the Clark County Prosecutors office, and that
office released them to the Orange County Prosecutor.
Forbes was charged in Orange County, Indiana with 1) operating a vehicle while
intoxicated resulting in death, and 2) operating a vehicle with a blood alcohol
content of .10% or more resulting in death. The trial court denied
Forbess motion to suppress the BAC test results and certified the order for
an interlocutory appeal. The Court of Appeals reversed, holding that the evidence must
be suppressed because it was not secured through procedures specified in the Uniform
Act to Secure the Attendance of Witnesses from Without the State. Ind. Code
§ 35-37-5-1 (1998). This Court granted transfer. Forbes v. State, 804 N.E.2d
760 (Ind. 2003).
I. Effect of Noncompliance with the Uniform Act
The Uniform Act has been adopted by both Indiana and Kentucky. Ind.
Code § 35-37-5-1 et seq. (1998); Ky. Rev. Stat. Ann §§ 421.230-421.270 (1992).
It is designed to provide a method of compelling attendance of witnesses
or documents from another state, and authorizes the issuance of subpoenas to that
end. See generally, Jay M. Zitter, Annotation, Availability Under the Uniform Act to
Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of
Subpoena Duces Tecum, 7 A.L.R. 4th 836, 837 (1981). The Uniform Act
does not provide any explicit remedies for failure to follow its procedure and
does not purport to be the exclusive method for sharing information across state
lines. The Indiana version of the Uniform Act, in Indiana Code section
35-37-5-5, provides for compelling a witness in another state to appear in Indiana.
To invoke the statute, a judge of the Indiana court is to
issue a certificate reciting that the person is sought as a material witness
and specifying the number of days attendance is required. The certificate is
to be presented to a judge in the county of the other state
(in this case Kentucky) where the witness is found. The Kentucky Uniform
Act provides that upon presentation of a certificate from another state under the
Uniform Act, the judge of a court in the county where the witness
is found is to set a hearing and issue a summons commanding attendance
in the Indiana proceeding. Ky. Rev. Stat. Ann. § 421.240.
The Court of Appeals took the view that the State was required to
follow the Uniform Act to obtain the test. If so, charges must
be filed against Forbes or a grand jury impaneled in Indiana in order
to meet the requirement of the statute that there be a pending proceeding.
The judge of the Indiana court would then issue a certificate stating
the State had charged Forbes. This certificate was to be presented to
a judge in Louisville (Jefferson County, Kentucky) who would set a hearing in
which the Kentucky law prerequisites for compelling attendance in another state court could
be heard. Forbes v. State, 793 N.E.2d 1112, 1118 (Ind. Ct. App. 2003).
It is clear that the process prescribed by the statute was not met
here. Both the subpoenas served by the trooper in person and the
subpoena mailed by the Clark County prosecutors office were issued without a hearing.
Neither subpoena was based on a certificate signed by the judge of
an Indiana court and reciting the matters required by the statute. But
the issue is whether the Uniform Act affords the exclusive procedure to obtain
a witness from another jurisdiction. We hold, consistent with precedent in other
states, that it is not.
As was held in the early days of statutory authority for compulsion of
witnesses across state lines, the Uniform Act is permissive legislation. It is
not the exclusive method to share information. See, e.g., People v. Dozier,
45 Cal. Rptr. 770, 777 (Cal. Ct. App. 1965) (The existence of permissive
legislation to obtain the presence of witnesses from out of state is not
a requirement that the machinery thus provided be used in every instance.).
The procedure contemplated by the Kentucky law is for the benefit of the
witness, not the parties. The issues to be heard in the receiving
state (Kentucky) relate to the burden on the witness of testifying in another
state, not concern for the parties.
See footnote The witness remains free to waive
the requirement of a hea
ring in the receiving state and agree to any
means of presenting testimony or producing their documents in another state that are
acceptable to them and comply with the Rules of Evidence. The hospital
chose to surrender the documents in response to the subpoenas it received.
Nothing prohibits a witness from voluntarily responding to a request to cross the
state line to testify. The witness may require a subpoena, as the
hospital did here. If so, that imposes the protections and conditions afforded
by Kentucky law under its version of the Uniform Act, but the parties
to the Indiana proceeding have no basis to complain if the witness chooses
to waive its requirements and testify or supply documents voluntarily. The same
is true if, as here, the documents are supplied in response to a
subpoena that resulted from proceedings other than those provided by the Uniform Act.
II. Court Approval of the Subpoenas
In Oman v. State, 737 N.E.2d 1131, 1148 (Ind. 2000), discussed below, this
Court established a framework for Indiana prosecutors to obtain private records: (1)
a prosecutor acting without a grand jury must seek leave of court before
issuing a subpoena duces tecum for the production of documentary evidence maintained by
a third party, and (2) the trial judge or magistrate will review the
subpoena for reasonableness using the three-factor City of Seattle test.
Oman was handed down on September 26, 2000. The University of Louisville Hospital
complied with Jefferson Countys subpoena on September 18, and the Clark County subpoena
on September 29, pursuant to a process the State had initiated before September
26. Oman itself made clear that its requirements apply only to processes
initiated after that date. 737 N.E.2d at 1138. Accordingly, the requirements
announced in Oman are inapplicable here.
Although the leave of court requirement established in Oman does not apply to
these subpoenas, they must still meet the reasonableness requirement of the Fourth Amendment
to the United States Constitution. Pursuant to See v. City of Seattle,
387 U.S. 541 (1967), a subpoena duces tecum is reasonable if it is:
1) sufficiently limited in scope, 2) relevant in purpose, and 3) specific in
directive so that compliance will not be unreasonably burdensome. See also Oman,
737 N.E.2d at 1141. Forbes contends that the first subpoena was not
sufficiently limited because on its face it was not limited to blood alcohol
tests and gave the troopers unbridled discretion as to the records to be
taken. The subpoena served by the troopers sought Medical Records of Darrell
Lee Forbes, SSN [deleted], DOB [deleted]. There is no suggestion that Forbes
had in fact been at the Louisville hospital on any prior occasion.
However, at least theoretically, the subpoena could have called for Forbess psychiatric records
or other private information irrelevant to any pending charges. We agree that
the subpoena was facially overbroad, but do not agree that the BAC test
results must be suppressed for that reason. Had the hospital or Forbes
objected to the subpoena at the time Trooper Ashby served the subpoena, we
would be faced with a different case. However, the hospital in supplying
the information did not object to the breadth of the subpoena and Trooper
Ashby in serving it asked for only the BAC test results. To
the extent Forbes has a right to keep other medical information private, that
right to privacy is not implicated here because no protected information was sought
or obtained. To be sure, the request for medical records might have
been quashed as overbroad if the issue were raised before the hospital complied.
But because only BAC results were produced, no interest would be furthered
by requiring the State to obtain a more specific subpoena duces tecum and
repeat the drill. In any event, Forbes concedes that the subpoena from
Clark County was sufficiently specific in its request for Certified copies of any
and all medical records showing result of Blood Alcohol Content Test performed on
DARRELL LEE FORBES, DOB [deleted], SS# [deleted], for [sic] on September 10, 2000.
Finally, Forbes contends that the subpoena was defective because there was little or
no evidence that alcohol was involved in the accident, thus rendering the subpoena
irrelevant. We disagree. Trooper Ashbys affidavit establishing probable cause indicated that
Forbes was driving at a high rate of speed and drove in a
reckless manner. The officer noticed a stench of alcohol at the crash
scene and alcoholic containers within plain view. Witnesses reported Forbes throwing beer
cans out the window. Given these circumstances, Trooper Ashbys actions were relevant
to and were appropriate responses during the course of a reasonable investigation.
The trial courts ruling denying Forbess motion to suppress is affirmed. This
case is remanded to the trial court for further proceedings.
Shepard, C.J., and Dickson, Sullivan and Rucker, JJ., concur.
The Kentucky statute requires the judge to determine that 1) the witness
is material and necessary, 2) it will not cause undue har
dship to the
witness to be compelled to attend in the other state, and 3) the
laws of the requesting state give the person protection from arrest and the
service of civil and criminal process. Ky. Rev. Stat. Ann. 421.240.