As a reserved question of law, the State appeals the trial court’s ruling to exclude evidence during a bench trial which resulted in the acquittal of William Hunter on the charge that he committed class A misdemeanor operating a vehicle while intoxicated.
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As noted above, the trial court found that the forensic report on the analysis of Hunter’s blood was inadmissible because the State failed to establish the requisite foundation under Indiana Code section 9-30-6-6. The statute provides the following protocol pertaining to the collection/obtaining of bodily substance samples:
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, who:
(1) obtains a blood, urine, or other bodily substance sample from a person, regardless of whether the sample is taken for diagnostic purposes or at the request of a law enforcement officer under this section; or
(2) Performs a chemical test on blood, urine, or other bodily substance obtained from a person;
shall deliver the sample or disclose the results of the test to a law enforcement officer who requests the sample or results as a part of a criminal investigation. Samples and test results shall be provided to a law enforcement officer even if the person has not consented to or otherwise authorized their release.
In reaching its determination, the trial court relied on Shepherd v. State, 690 N.E.2d 318 (Ind. Ct. App. 1997), trans. denied, disagreed with on other grounds. There, Shepherd argued that the State had failed to establish that the protocol used for collecting his blood complied with the statute. We noted that the statutory language specified “samples collected by ‘[a] physician or person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician.’” Id. at 328 (quoting I.C. § 9-30-6-6(a)). We further noted that the technician who collected Shepherd’s blood sample testified “that the protocol used was prepared by the technical staff and then subsequently reviewed and approved by a physician.” Id. at 328. Moreover, “the protocol contained the signature of Thomas A. Kocoshis, M.D., certifying that ‘the above steps [of the protocol] are the accepted policy and procedures for ‘Sample Collection for Legal Whole Blood (Ethanol) Levels’ at Kosciusko Community Hospital.’” Id. We found such evidence sufficient to establish that “the protocol was prepared by a physician as required by the statute.” Id. at 328-39. Here, unlike in Shepherd, there is absolutely no evidence that Nurse VanContron was acting under a protocol prepared by a physician.
More recently, in Combs v. State, 895 N.E.2d 1252, 1255 (Ind. Ct. App. 2008), the appellant argued that “the State failed to lay a proper foundation for admitting” blood test results” because it did not present evidence that the person who drew Combs’s blood acted under proper protocol.” We stated that inasmuch as our Supreme Court had noted that “the foundation for admission of laboratory blood drawing and testing results, by statute, involves technical adherence to a physician’s directions or to a protocol prepared by a physician,” the foundational requirement of Indiana Code section 9-30-6-6 could “not be ignored.” Id. (quoting Hopkins v. State, 579 N.E.2d 1297, 1303 (Ind. 1991)). In Combs, the medical technician who drew the blood testified “about her educational background and professional experience drawing blood samples,” and further testified regarding the procedure she utilized in drawing Combs’s blood. However, we found “that the State failed to present evidence that [this technician] was 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[.]‘” Id. at 1257 (quoting I.C. § 9-30-6-6(a)). Specifically, we found the “record devoid of evidence that a physician prepared the protocol followed by” the technician, and “absolutely no evidence that she acted under the direction of a physician” when drawing Combs’s blood. Id. at 1258. Accordingly, we held that “the State failed to lay a proper foundation for admitting the blood test results.” Id.
Here, as in Combs, the State has failed to present evidence that Nurse VanContron was “acting under the direction of or under a protocol prepared by a physician[.]” I.C. § 9-30-6-6(a). Moreover, unlike in Combs, the State failed to present any evidence that Nurse VanContron was “a person trained in obtaining bodily samples.” Id. Therefore, the inadequacy of the foundation is even more pronounced.
Nevertheless, the State argues that the statute “is inapplicable” here because Nurse VanContron drew Hunter’s blood pursuant to a court-authorized warrant. State’s Br. at 6. However, it cites no authority for this proposition, and we find none. Further, we do not find that because a search warrant directed hospital personnel to obtain a bodily substance sample, such should not trump and/or negate the legislature’s statutory requirements outlining the prescribed protocol for obtaining such samples. The State further argues that the statute is inapplicable because it merely concerns “the proper taking of the bodily substance sample, i.e., how, when and by whom,” which “should have no affect [sic] on the admissibility of the test results in a criminal proceeding” against the person whose bodily substance was taken. Id. at 7, 8. Again, we find no merit in such a contention. Indiana statute and common law require a specific evidentiary foundation for the admission of bodily substance sample test results. Here, the State failed to establish that foundation.
RILEY, J., and VAIDIK, J., concur.