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Judges affirm retroactive application of amendments to blood draw statute

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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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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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