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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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