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Monday, August 23, 2010

Ind. Law - Blood draw law might benefit from another look by the legislature

The ILB had a number of entries earlier this year on the "certified phlebotomist" issue. You can refresh your memory from this list, particularly this March 21st entry.

This lengthy August 21, 2010 Indianapolis Star story by Jon Murray and John Tuohy includes this:

In [officer David Bisard's] case, officers reported that he showed no signs of intoxication at the scene.

They didn't call in alcohol-crash investigators, and Bisard didn't perform breath or field-sobriety tests. Only several days later -- after test results of a blood draw taken two hours after the crash came back -- did authorities learn his blood-alcohol level was 0.19, more than twice the level at which a driver is considered intoxicated.

On Thursday, Marion County Prosecutor Carl Brizzi announced he had decided to dismiss all six DUI counts, including the lead Class B felony charge, citing officers' failure to follow proper procedures.

An officer had allowed an uncertified medical assistant at the occupational clinic where Bisard was treated after the crash to draw his blood, Brizzi said.

That blood test was the only evidence of Bisard's alleged intoxication.

A WIBC story by Eric Berman from August 20th reports:
The law which prompted the dismissal of drunken-driving charges against an I-M-P-D officer was amended this year -- but not enough to salvage the case.

Marion County Prosecutor Carl Brizzi dropped four alcohol-related counts against David Bisard on Thursday, explaining that the test which showed him with a blood-alcohol level of .19% would be inadmissible because it was taken by a lab technician, and at an occupational health center, not a hospital.

The Indiana Court of Appeals ruled a year ago the law doesn't let a lab technician do your blood-alcohol test -- the law says "certified phlebotomist," and Indiana has no such certification.

In March, legislators eliminated that language, and said anyone with the proper training, including a lab tech, can take blood -- but they still have to follow established protocols, or be under the supervision of a doctor.

More from the story:
Former Indiana University law professor Henry Karlson says that's where the test conducted on Bisard appears to have gone off the rails: the lab technician who drew his blood didn't meet either of those criteria.

"I've been told that if a physician had walked by the door while the man was doing the blood sample, they would have fought it," Karlson says. "But there wasn't a physician supervising this man in any way, and evidently, there were no established protocols."

There's more disagreement over why hospitals have been added to the law.

House Courts and Criminal Code Chairman Matt Pierce (D-Bloomington) says the goal was to ensure that tests performed by a lab tech at a hospital were considered admissible. But other legal experts say a properly trained lab tech should be able to perform a test at any location under proper supervision.

And Karlson says the section of the law which excludes lab techs -- allowing only doctors, nurses, paramedics or E-M-T's to administer the test -- appears to apply only to a standing contract to perform those tests, such as the prosecutor in Pierce's Monroe County has.

Take a look at the entire IC 9-30-6-6, including the changes made to subsection (j) earlier this year.

My thoughts: I got lost half way through. The General Assembly should consider redrafting this entire section to clearly state its intent.

Posted by Marcia Oddi on August 23, 2010 07:13 AM
Posted to Indiana Law