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Judges affirm retroactive application of amendments to blood draw statute

April 13, 2011

Applying 2010 statutory amendments governing chemical tests for evidence of intoxication to a case of a man charged in 2009 with driving while intoxicated didn’t violate the prohibitions against ex post facto criminal sanctions, the Indiana Court of Appeals held Wednesday.

Brett Boston on interlocutory appeal challenged the denial of his motion to suppress the results of his blood test following his arrest on suspicion of drunk driving in fall 2009. He was taken to a Hendricks County hospital where a phlebotomist took his blood. Boston challenged the blood draw claiming the phlebotomist wasn’t under the direction of or following protocol prepared by a doctor.

Boston argued the state didn’t satisfy the foundational requirements of the 2006 version of Indiana Code Section 9-30-6-6 that was in effect when he was arrested and that the trial court erred in relying on amendments made in 2010 to deny the motion to suppress.

The 2006 version of the statute included the term “certified phlebotomist.” That was eliminated, and the language that the “authorized person” determination doesn’t need to be made when a bodily substance sample is “taken at a licensed hospital” was added by the 2010 amendments deemed effective upon passage.

The judges agreed with the state that the 2010 amendments were remedial in nature and were motivated by strong and compelling reasons aimed at public safety and welfare. The General Assembly’s amendment clearly shows its acknowledgement that “blood draws which are performed in state-licensed hospitals observe and embody the ‘technical adherence’ to a physician’s directions or to a physician’s protocol required by our evidentiary rules for the admission of blood test results,” wrote Judge Carr Darden in Brett Boston v. State of Indiana, No. 32A01-1008-CR-421.

The appellate court also held that the retroactive application of the remedial 2010 amendments didn’t violate constitutional prohibitions against ex post facto criminal sanctions. Retroactive application of the amendments doesn’t enlarge Boston’s punishment or change the elements of his crime, Judge Darden noted.

Boston also failed in his argument that the trial court erred in denying his motion to suppress because the state failed to establish a proper foundation. In finding the amendments may be properly applied to Boston’s claim, he can’t demonstrate that the phlebotomist didn’t satisfy the foundational requirements of the statute.

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