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Wednesday, April 13, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Douglas M. Grimes v. Victoria Crockrom, et al. , a 7-page opinion in an interlocutory appeal, Judge Najam writes:

Douglas Grimes appeals the trial court’s denial of his Verified Motion to Quash Subpoena Duces Tecum in this medical malpractice action. Grimes presents a single issue for our review, namely, whether the trial court erred when it denied his motion and ordered him to produce medical records to Victoria Crockrom without also providing for security for the payment of attorney’s fees Crockrom owes Grimes.

We affirm in part, reverse in part, and remand with instructions.

In D.G. v. State of Indiana , a 12-page opinion, Judge Barnes concludes:
The trial court erred by not assessing six-year-old A.S.’s competency before allowing her to testify. This error was not harmless. There is sufficient evidence to permit another hearing on the allegations. We reverse and remand.
In Brett Boston v. State of Indiana , a 14-page opinion, Judge Darden writes:
Brett Boston brings this interlocutory appeal from the denial of his motion to suppress the results of his blood alcohol test. We affirm.

ISSUES: 1. Whether the trial court erred in denying Boston's motion to suppress. 2. Whether the trial court erred in retroactively applying recent legislative amendments to the applicable statute in its determination of Boston's claim. * * *

Boston argues that the trial court erred in denying his motion to suppress the results of his blood alcohol test. Specifically, he argues the State failed to satisfy the foundational requirements of the version of Indiana Code section 9-30-6-6 that was in effect at the time of his arrest. We disagree.

1. Statutory Amendment

In relevant part, Indiana Code section 9-30-6-6 governs chemical tests on blood, urine, and other bodily substances for evidence of intoxication. The version of the statute that was in effect at the time of Boston's arrest (“the 2006 version”) differs significantly from the version (“the 2010 version”) that was in effect at the time of the suppression hearing. Boston argues that the trial court improperly applied the 2010 version of the statute retroactively in denying his motion to suppress the blood alcohol test results. * * *

The changes to Indiana Code section 9-30-6-6 are not substantive in nature. Rather, the General Assembly's acts of (1) removing “certified phlebotomist[s]” from the list of persons authorized to perform blood draws, and (2) interjecting that the “authorized person” determination need not be made where the bodily substance sample is “taken at a license hospital,” evince its acknowledgment 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. [cites omitted]

Based upon the foregoing, we conclude that the 2010 amendments to Indiana Code 9-30-6-6 were remedial in nature, motivated by strong and compelling reasons aimed at public safety and welfare. As such, we find no abuse of discretion from the trial court's retroactive application of the 2010 amendments and reliance, thereon, in denying Boston's motion to suppress the results of his blood alcohol test. * * *

2. Motion to Suppress

Boston also argues that the trial court erred in denying his motion to suppress the blood test results because the State failed to establish a proper foundation. In light of our discussion above, we cannot agree. * * *

As noted above, we find that our legislature's acts of (1) removing “certified phlebotomist[s]” from the list of persons authorized to perform blood draws, and (2) interjecting that the “authorized person” determination need not be made where the bodily substance sample is “taken at a licensed hospital,” reflect its acknowledgment that blood tests which are performed in state-licensed hospitals employ 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.

NFP civil opinions today (3):

Claudette Mee, et al. v. George Albers, M.D., et al. (NFP)

Term. of Parent-Child Rel. of M.H.; R.S. v. IDCS (NFP)

Lisa and Nicole Tanasijevic v. Alicia Bookwood (NFP)

NFP criminal opinions today (3):

State of Indiana v. Mary McNeal (NFP)

Michael J. Cable v. State of Indiana (NFP)

Marvin L. Ervin v. State of Indiana (NFP)

Posted by Marcia Oddi on April 13, 2011 10:41 AM
Posted to Ind. App.Ct. Decisions