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High court to hear challenge to tests admittance

December 21, 2009

The Indiana Supreme Court has agreed to take the case of a man charged with drunk driving who challenges the admittance of two tests used to prove his intoxication.

The high court granted transfer Dec. 17 to Roger L. Brown v. State of Indiana, No. 12S02-0912-CR-560, in which the Indiana Court of Appeals affirmed Roger Brown's two convictions of Class D felony operating a vehicle while intoxicated resulting in bodily injury. Brown argued the trial court shouldn't have allowed evidence of his horizontal gaze nystagmus test or evidence of his blood draw because the state failed to lay a proper foundation for either test.

In its original opinion, and on rehearing, the Court of Appeals affirmed the admittance of the HGN test. The appellate court found the trial court abused its discretion in admitting Brown's blood draw because the state didn't establish that the lab technician who drew the blood collected it under the direction of or under a protocol prepared by a physician. The technician followed protocol she learned in school, not the hospital's blood sample lab protocol.

Despite finding his blood test couldn't be admitted, the Court of Appeals affirmed Brown's convictions because the state was able to prove he was intoxicated and his driving caused the victims' injuries.

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