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Friday, May 28, 2010
Ind. Decisions - Transfer in certified phlebotomist "loophole" case ruled "improvidently granted"
Supreme Court oral argument in the case of Roger Brown v. State was held Jan. 14, 2010. The posted description:
At trial on charges of operating a vehicle while intoxicated, the Clinton Superior Court admitted the results of a blood alcohol test that had been performed by a certified lab technician. The Court of Appeals held this was error because certified lab technicians are not "certified phlebotomists" or otherwise persons who are trained in obtaining bodily substance samples for purposes of Indiana Code Section 9-30-6-6(j). See Brown v. State, 911 N.E.2d 668 (Ind. Ct. App. Aug. 21, 2009), vacated. The Supreme Court has granted the State’s petition to transfer the case and has assumed jurisdiction over the appeal. [Here is the Aug. 21, 2009 COA opinion.]On March 12, 2010, the Governor signed HEA 342, which, according to a Herald-Times story quoted in this March 16th ILB entry, closed a "loophole" in drunken driving law. According to the story, the new law clarified that the state law that blood draws must be conducted by a certified phlebotomist did not apply to blood draws conducted in a hospital setting.
Now, in a May 26, 2010 "Order vacating prior order granting transfer" re the Brown case, posted yesterday, the Court writes:
By order dated December 17, 2009, the Court granted a petition seeking transfer of jurisdiction over this appeal from the Court of Appeals to this Court. After further review, including oral argument, the Court has determined that transfer was improvidently granted.
Accordingly, the order granting transfer is VACATED. The Court of Appeals' opinion is no longer vacated under Appellate Rule 58(A) and is REINSTATED. The transfer petition filed by the Appellee is DENIED.
Pursuant to Appellate Rule 58(B), this appeal is at an end. The Clerk is directed to certify this appeal as final and to send copies of the order to the parties or their attorneys. The Clerk is also directed to post this order on the Court's website.