 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Decker11/25/1991
test results into evidence and stated that "the appellant introduced nothing to impeach or contradict this evidence." Joelson, 674 P.2d at 232.
The situation in the case at bar is similar. The record indicates that the officer took the appellant to the hospital where they were greeted by a nurse. The nurse summoned the doctor and, after an examination of the appellant's injury, a blood sample was obtained by the nurse. Proper documentation and paperwork were completed. At trial, two forms were admitted into evidence without objection. First, the blood test request form which indicated the nurse's name as follows:
"D. Hartman "(Physician, Registered Nurse, etc.)
"Second, the alcohol analysis request appeared as follows:
"Hartman "(Physician, Nurse, Med. Tech)"
In Joelson, the Wyoming appellant made no objection to State's exhibits (which are the equivalent of Montana's blood test and alcohol analysis forms), and the Wyoming court properly admitted them into evidence under their Rule of Evidence 803(6) "Records of regularly conducted activity." The Wyoming court stated that "the material contained in the exhibits could be accepted as true or false by the trier of fact." Joelson, 674 P.2d at 231.
We approve and adopt the Wyoming court's reasoning as it applies to the case at bar. The trier of fact is in the best position to examine the evidence and observe the witnesses. Here, the District Court chose to believe the information in the forms regarding the nurse and her qualifications, along with other evidence that she was a "qualified person" under Montana law. The forms were properly admitted into evidence.
The record reflects the District Court's consideration of the qualification issue as follows:
"Court: I think there's sufficient case made here for the qualification of the nurse. She is in the emergency room, she's not just an LPN, or at least her drawing, the act of drawing the blood shows that she would not be simply an LPN but would be a qualified person in the circumstances to do this, so I'll overrule the objection."
Appellant cites our opinion in State v. McDonald as authority for her position. State v. McDonald (1985), 215 Mont. 340, 697 P.2d 1328. We do not believe that the case at bar is similar since, in the instant case, the name of the person drawing the blood appeared on two separate forms that were properly admitted into evidence. In McDonald, the name of the person who took the blood sample did not appear on any forms. The only identification of that person was by the arresting officer. We held that his testimony about the person who took the blood sample was hearsay since he merely recalled that she had a name tag that said she was a nurse. McDonald, 215 Mont. at 346, 697 P.2d at 1331.
We take this opportunity to note that the Administrative Rules cited in McDonald have been repealed. Even so, the language is not inconsistent with our holding in the instant case.
" criminal defendant on a charge of driving under the influence is entitled to the procedural safeguards of the Administrative Rules of Montana. To admit evidence of blood alcohol content and a test report, the State must lay a foundation pursuant to § 61-8-404, MCA, which incorporates the ARM: (1) the laboratory analysis must be done in a laboratory qualified under the rules of the Department; (2) the report must be prepared in accordance with the rules of the Department; and (3) if a blood sampling, the person withdrawing the blood must be demonstrably qualified to do so." [Emphasis added.]
McDonald, 215 Mont. at 346, 697 P.2d at 1331-32.
Eve
Page 1 2 3 4 5 Montana DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|