Boston v. State
| Citation | 947 N.E.2d 436 |
| Decision Date | 13 April 2011 |
| Docket Number | No. 32A01–1008–CR–421.,32A01–1008–CR–421. |
| Parties | Brett BOSTON, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Russell T. Clarke, Jr., Emswiller Williams Noland & Clarke, P.C., Indianapolis, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Brett Boston brings this interlocutory appeal from the denial of his motion to suppress the results of his blood alcohol test.
We affirm.
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.
On October 11, 2009, Boston was arrested on suspicion of operating a motor vehicle while intoxicated.1 Boston requested a blood alcohol test, also known as a blood draw. He was transported to Hendricks Regional Health Hospital, where phlebotomist 2 Kimberly Cannon drew his blood. On October 15, 2009, before Boston's test results were returned, the State charged him with class A misdemeanor operating a motor vehicle while intoxicated, and the infraction offenses of failure to exhibit registration and failure to signal.
On December 17, 2009, the State moved to amend its charging information by adding a count of class A misdemeanor operating a motor vehicle with a BAC of .15 or greater to the charging information. The trial court granted the motion and ordered Boston's driver's license “suspended immediately.” (CCS 2).
On May 18, 2010, Boston deposed Cannon. She testified that she had earned her emergency medical technician (EMT) certification in California in 1994, which consisted of two hundred hours of class work and forty hours of practicals. She further testified that she has performed thousands of blood draws, including approximately two hundred blood alcohol tests pursuant to court order or at the request of law enforcement. In addition, she testified that she “always follow[s] policy and procedures” of Hendricks Regional Health Hospital. (Cannon Depo. at 9). Under cross-examination, the following exchange occurred:
[Defense counsel]: * * * Now would you please tell me, in detail, the language of the written protocol by the hospital since you've been there for seven (7) years?
[Cannon]: I don't have, I don't have that memorized, sir.
[Defense counsel]: Okay. But I assume you don't refer to it, I gather, when you do the blood draws?
[Cannon]: Correct.
[Defense counsel]: So I, I mean I assume you remember what it is?
[Cannon]: It's ... (laughing) uh, I don't know what it is detail, by detail.
[Defense counsel]: You don't know what the protocol is?
[Cannon]: I don't know what detail, by detail the protocol is.
On June 11, 2010, Boston filed a motion to suppress results of the blood alcohol test wherein he argued that “the person who collected Mr. Boston's blood was neither under the direction of or following a protocol prepared by a physician.” (App.6). On June 22, 2010, the trial court conducted a suppression hearing. Cannon testified on behalf of the State. She testified that notwithstanding her EMT certification, Hendricks Regional Health Hospital had also required her to complete six weeks of orientation training, as well as “annual competencies” and “supervisor competencies ... proving [her] competenc[y].” (Tr. 9). She further testified that she has been employed at the hospital for seven years.
Cannon testified that she had misunderstood defense counsel's deposition questions regarding the protocol, believing that he had wanted her to give a verbatim recitation of the ten-step Hendricks Regional Health Hospital “Alcohol Specimen Collection Procedure for Legal Alcohol Orders.” (State's Ex. 1). Over defense counsel's continuing objections that the State was attempting to “circumvent the testimony that's already been given under oath by [Cannon],” (tr. 11), Cannon testified as follows:
[State]: Okay. Is there standard protocol that Hendricks Regional Health requires you to use when you take a legal blood draw?
[Cannon]: Yes[,] there is.
* * *
* * *
[State]: Ms. Cannon, uh did Hendricks Regional Health have a protocol for conducting legal draws in October of 2009?
[Cannon]: Yes.
[State]: Was that protocol signed by a physician?
[Cannon]: Yes.
[State]: Was that protocol directed by a physician?
[Cannon]: Yes.
* * *
* * *
[State]: Uh, Miss Cannon, the protocol that I just showed you, I just admitted that to the Judge, is that the protocol you followed? When you took a blood draw from Brett Boston?
[Cannon]: Yes.
* * *
* * *
[State]: * * * Ms. Cannon, what does the protocol for Hendricks Regional Health say?
[Cannon]: It, it states in there to identify the patient, obtain a toxicology blood kit from the State Trooper, Officer, or Deputy. Uh, draw the patient's blood. Initial anything on there that is done outside of the norm. Anything I seal outside of the norm, initial it, date it. Hand the specimens back to the officer for him to seal. And, give them back to his custody. And follow the protocol from the hospital....
(Tr. 19, 24, 29, 33). The trial court then took the matter under advisement.
On July 16, 2010, the trial court issued an order denying Boston's motion to suppress blood alcohol test results. On August 9, 2010, Boston filed a motion for certification of interlocutory appeal, which motion was granted on August 10, 2010. On August 30, 2010, he filed a motion to accept jurisdiction of an interlocutory appeal. On October 12, 2010, we accepted jurisdiction of Boston's interlocutory appeal.
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.
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 3”) 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.
As a general rule, statutes will not be applied retroactively absent strong and compelling reasons. Bourbon Mini–Mart, Inc. v. Gast Fuel and Services, Inc., 783 N.E.2d 253, 260 (Ind.2003). An exception exists for remedial statutes, i.e. statutes intended to cure a defect or mischief that existed in a prior statute. Id. “Ultimately, ... whether a statute applies retroactively depends upon the intent of the General Assembly.” Id. (citing Martin v. State, 774 N.E.2d 43, 44 (Ind.2002)). Thus, when considering a remedial statute, the court must construe it to carry out the legislative purpose of the statute, “unless doing so violates a vested right or constitutional guaranty.” Id.
Both the 2006 and the 2010 versions of Indiana Code section 9–30–6–6(j) enumerate certain “persons who are trained in obtaining bodily substance samples,” for purposes of conducting blood draws pursuant to law enforcement investigations. Among these, the 2006 4 version of the statute included “[a] certified phlebotomist.” I.C. § 9–30–6–6(j)(7) (2006). On March 12, 2010, the General Assembly approved an amendment, designated “effective upon passage,” whereby it eliminated the “certified phlebotomist” language and added that “[subsection (j) ] does not apply to a bodily substance sample taken at a licensed hospital ...” I.C. § 9–30–6–6(j) (2010); see P.L. 36–2010.5
In Brown v. State, 911 N.E.2d 668 (Ind.Ct.App.2009), handed down on August 21, 2009, we analyzed whether a certified lab technician was a person “trained in obtaining bodily substance samples” for the purposes of Indiana Code section 9–30–6–6(j) (2006). The panel concluded that the certified lab technician did not meet the statutory requirements, noting,
If the General Assembly intended subsection (j) to include certified lab technicians instead of, or in addition to, certified phlebotomists, it easily could have done so. It did not do so, however, and therefore we must conclude that the trial court abused its discretion in admitting the results of Brown's blood test [into evidence].Id. at 673. Accordingly, we granted Brown's motion to suppress the results of his blood test. On December 17, 2009, our Supreme Court granted transfer in Brown. Soon thereafter, on March 12, 2010, in amendments deemed effective “upon passage,” our General Assembly quickly amended Indiana Code section 9–30–6–6(j) by eliminating the “certified phlebotomist” language and adding that “[subsection (j) ] does not apply to a bodily substance sample taken at a licensed hospital....” Notably, on May 26, 2010, our Supreme Court rescinded its grant of transfer and vacated its order.
The State asserts that the 2010 amendment was “remedial in nature,” reflecting “the legislature's intent to allow blood draws such as the one that occurred in this case to be admitted into evidence.” State's Br. at 11. In its brief, it argues that
the legislature acted immediately in response to Brown and amended the statute to eliminate the confusion created by the ‘certified phlebotomist’ language, since there is no Indiana certification for phlebotomy that exists, and to make sure that blood draws performed by trained individuals at licensed hospitals are admissible into evidence. Furthermore, they did so through an emergency provision that would be effective immediately upon passage. This shows the legislature's desire to remedy this...
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