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State v. Decker11/25/1991
both had not been proven.
In McDonald, defendant was taken to the hospital where blood was drawn by an employee specifically identified with a tag that said "Registered Nurse." The officer who was present at the blood drawing identified the person who drew the blood as a nurse but was unable to provide further information about her identity or qualifications. The defendant in that case, like the defendant in this case, objected to the introduction of the crime lab's blood analysis on the grounds that insufficient foundation had been laid to establish that it had been drawn by a qualified person in a procedurally correct manner. We agreed and, in doing so, relied on § 61-8-404, MCA, which requires that "the person withdrawing the blood must have been competent to do so under § 61-8-405(1)." After citing the aforementioned departmental rules for withdrawal of blood, we also discussed the importance of the qualifications of the person withdrawing the blood. We held as follows:
"We hold that a 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, 697 P.2d at 1331-32.
It is true that in 1988, prior to the date of the defendant's conduct which is complained of in this case, the departmental rules establishing the procedure for withdrawing blood were repealed. However, the repeal of those administrative safeguards did not eliminate the requirements of §§ 61-8-404 and 405(1), MCA. If anything, the elimination of other procedural safeguards made the qualifications of the person withdrawing the blood even more important.
The requirements of § 61-8-405(1), MCA (which we previously held were a foundational requirement), are very specific. Pursuant to that section:
"Only a physician or registered nurse or other qualified person under the supervision and direction of a physician or registered nurse acting at the request of a peace officer may withdraw blood for the purpose of determining any measured amount or detected presence of alcohol in the person."
There was absolutely no evidence in this case that the person who withdrew blood from the defendant was a physician, registered nurse, or "other qualified person under the supervision and direction" of a physician or nurse.
The majority states that after arriving at the hospital, "the officer presented the blood test request form to the nurse and remained while the nurse drew the appellant's blood. . . ." However, there was no testimony by the person who drew the blood to the effect that she was a nurse of any kind. Nor was there any effort to lay any foundation for her qualifications through the officer who presented the form to her. The majority states that:
"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."
This observation makes no sense because there was nothing in the form for the District Court to believe or disbelieve regarding the "nurse's" qualifications. The form simply bore her signature on a line under which it stated (Physician, R
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