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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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