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State v. Decker11/25/1991
egistered Nurse, etc.). There is no further indication on the form whether she was a physician, registered nurse, or an etcetera. If she was an etcetera, there is no indication whether she was a lab technician, X-ray technician, practical nurse, nurse's aid, hospital volunteer, or passerby. Nor was there any "other evidence" as referred to by the majority. The only two witnesses who testified at trial were Thomas Moring, the Highway Patrolman who arrested the defendant and Lynn Kurtz, the forensic scientist from the State Crime Lab in Missoula. Neither were asked for, nor gave any information about the "nurse's" background, title, experience, other qualifications, or the color of her uniform. Neither identified her as a registered nurse as opposed to a licensed practical nurse. The mere fact that Officer Moring presumed she was a nurse at all was the kind of speculation that we specifically prohibited in McDonald. At least in McDonald, the person who was presumed to have been a registered nurse had a tag that said "Registered Nurse." We concluded, however, that even that was insufficient. In this case, there is no indication that the person who withdrew the defendant's blood had any such identification.
The majority relies on the Wyoming Supreme Court's decision Joelson v. State (Wyo. 1984), 674 P.2d 229. However, that case is not in point. The person who withdrew the blood from the defendant in that case filled out the appropriate paperwork and identified herself as an RN. The paperwork in which she identified herself in that manner was admitted at trial without objection. That court, therefore, held that the statutory requirement that blood be withdrawn by a registered nurse had been satisfied. No such identification was provided by D. Hartman on any form that she filled out in this case. Therefore, the Wyoming court's remarks which are cited by the majority in this case are completely irrelevant to the facts here.
It is not a significant burden on the many qualified prosecutors in this state to require that they prove that the person who drew blood from a defendant was a doctor, registered nurse, or some other qualified person acting under their supervision. The majority's inference to the contrary ignores common practice in our district courts.
It is strange that yesterday's foundational requirements become so quickly insignificant upon reconsideration.
The effect of today's majority decision is to totally eliminate the statutorily-imposed requirements of §§ 61-8-404 and 405(1), MCA. From this day forward, intoxication can be proven with blood samples drawn by an etcetera.
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