Brown v. State, 12A02-0901-CR-1
2nd Dist., 04-21-09, Ind.App.
Attorney: John Fierek
Holding: Trial court abused its discretion in admitting results of Defendant’s blood alcohol test because State failed to lay the proper foundation. Blood samples collected at the request of a law enforcement officer as part of a criminal investigation must be obtained by “[a] physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician.” I.C. 9-30-6-6(a). Also, the bodily substance must be obtained by a medical professional specified in I.C. 9-30-6-6(j). Here, Defendant consented to a blood draw after he was involved in an accident and exhibited signs of intoxication. A certified lab technician drew Defendant’s blood according to the method she was taught in school rather than the hospital’s protocol, which was established by a physician. Because the lab technician was not acting under the protocol prepared by a physician, the blood test results were inadmissible. Also, because a certified lab technician is not listed in the statute as a person who may draw blood at the request of a law enforcement officer, the blood tests were inadmissible. Although the certified lab technician was certified to practice phlebotomy, she was not a certified phlebotomist, which is listed in the statute. However, because the evidence of intoxication was overwhelming, the erroneous admission of the blood test results was harmless. Held, judgment affirmed.
