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Sunday, March 21, 2010

Ind. Law - More on "New drunken driving law quickens blood sample process"

Updating this March 16, 2010 ILB entry on SEA 342, Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

This month, Gov. Mitch Daniels signed a bill into law changing part of the state’s drunken-driving law.

That change removed the phrase “certified phlebotomist” from the list of those authorized to collect blood samples for blood-alcohol-concentration tests. The change was needed after a summer ruling by the Indiana Court of Appeals sent prosecutors scrambling to keep their blood evidence in play.

State law, up until a couple of weeks ago, said that if a police officer needed a suspect’s blood drawn for evidentiary purposes, it had to be performed by a physician, a nurse, an EMT, a paramedic or a certified phlebotomist.

The state never defined what it meant by certified phlebotomist, Allen County Chief Deputy Prosecutor Michael McAlexander said.

And Indiana doesn’t seem to offer any certification for those who want to be a phlebotomist – a person who draws blood. Schools offer certificates in phlebotomy, but there was no state-level procedure for becoming a certified phlebotomist.

“It was very unclear as to how someone became a certified phlebotomist,” McAlexander said. “They didn’t define what a phlebotomist was.”

That discrepancy – between state law and reality – was pointed out by the Indiana Court of Appeals in August. A Clinton County man, Roger Brown, appealed his conviction for operating a vehicle while intoxicated, in part on whether the trial court abused its discretion by allowing the admission of his blood sample because it was not done by anyone on the state-approved list. His blood was drawn at St. Vincent’s Hospital-Frankfort by a certified lab technician.

While the court upheld his conviction, saying there was enough other evidence Brown was legally drunk, it ruled the trial court should not have allowed the blood evidence to be presented, according to the ruling.

That opened the door for defense attorneys around the state to challenge the admissibility of some blood draws, which they did. And it’s an issue that has come up in the recent case of Brian Mansfield, an already-convicted drunken driver who is accused of causing a fatal crash last November in east Allen County. * * *

In Allen County, prosecutors ask for blood tests only in DWI cases involving a crash causing serious injury or death, as in the case of Brian Mansfield.

Mansfield, 52, faces charges of operating a vehicle while intoxicated, causing death, after a crash in late November in eastern Allen County that left a 45-year-old woman dead and her teenage daughter seriously injured.

Injured in the crash as well, Mansfield was taken to a hospital and blood was drawn as part of routine medical procedures. According to court documents, the test revealed a blood-alcohol concentration of 0.33 percent, more than four times the legal limit of 0.08 percent.

The blood was drawn by a phlebotomist, but not a certified phlebotomist, according to court documents.

Anticipating a defense challenge to the test’s admissibility, prosecutors asked Allen Superior Court Judge Fran Gull to rule whether it could be used.

On Tuesday, Gull ruled the blood tests admissible, saying the blood was drawn in accordance with hospital protocols and properly obtained by police through a warrant after it was drawn for medical procedures.

Mansfield’s defense attorney, Nikos Nakos, said he might appeal Gull’s decision.

Nakos said the requirement of a “certified phlebotomist” was likely one of lawmakers not totally understanding the language they put in their bills.

And because it was what the law said at the time, Nakos had an obligation to raise the issue for his client.

“With all due respect to some of the legislators, they read legislation from other states and they become enamored with the language,” Nakos said. “They don’t really understand the language they are putting in the bills, and they make mistakes.”

With the governor’s signature on the bill, state law no longer lists “certified phlebotomists” as those who can draw blood for evidentiary samples, and the list does not apply if the blood is drawn at a licensed hospital. [ILB - The Gov. signed the bill and it took effect March 12, 2010.]

But at the time the case against Mansfield was filed, the appellate court decision was clear on the issue of “certified phlebotomist,” new legislation had not been adopted and the Indiana Supreme Court had not yet agreed to take a look at the issue. [ILB - The Supreme Court granted transfer in Brown on Dec. 17, 2009.]

Nakos is not sure whether Brown’s appellate case still applies to Mansfield’s case.

“From the defense point of view, we would like to have seen it apply, but I guess that’s why it went to the Supreme Court,” he said.

Appellate Rule 58(A) provides that where transfer is granted, the COA decision shall be automatically vacated, with some exceptions.

As reported at the end of the March 16th ILB entry, the Supreme Court granted transfer in Brown and oral argument was held Jan. 11, 2010. No opinion has yet been issued.

Posted by Marcia Oddi on March 21, 2010 12:22 PM
Posted to Ind. App.Ct. Decisions | Ind. Trial Ct. Decisions | Indiana Law