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State v. Mcdonald4/2/1985
Submitted March 11, 1985.
Defendant appeals his conviction for driving under the influence , a violation of section 61-8-401, MCA, following a bench trial in the District Court of the Sixth Judicial District, Park County. Claiming that the State failed to comply with full discovery and failed to lay a proper foundation for the admission of a blood alcohol test report and testimony, the defense asks for a reversal with instructions for an acquittal.
Instead, we reverse and remand to the District Court for a new trial.
The following issues are raised on appeal:
(1) Did the District Court allow into evidence State's Exhibit A, the Specimen-Collection Laboratory Analysis form, and testimony on the form without a proper foundation?
(a) Did the State fail to comply with full discovery?
(b) Did the State comply with the statutory requirements for admissibility of evidence of blood alcohol content in a prosecution of section 61-8-401 or section 61-8-406, MCA?
(2) Was there sufficient evidence to convict the defendant of the crime of driving under the influence without the evidence of blood alcohol content?
Defendant Robert McDonald was driving his Ford pickup with large camper at about 6:00 a.m. on August 12, 1983, on the city streets of Livingston, Montana. City Police Officer James Perkins observed him traveling west on Park Street in excess of 45 miles per hour in a posted 25 mile per hour zone and followed him for several blocks. McDonald's vehicle crossed the double yellow lines at Park and G, Park and F, and Park and C streets before Perkins pulled him over in the 100 block of North Main.
After approaching the vehicle, the officer found McDonald to be civil, but he did detect alcohol on his breath. McDonald performed the required field sobriety tests. Although he did all right on some tests, he appeared impaired on others. The officer concluded he was under the influence of alcohol. He arrested McDonald for driving under the influence (DUI), took him to the Park County jail, booked him, and videotaped the implied consent. The alco-analyzer was malfunctioning, so McDonald agreed to have a blood test at Livingston Memorial Hospital.
Officer Perkins had made about seventy-five arrests for DUI in his career but had asked for blood tests only about ten times. He could not recall specifically at trial who drew the blood sample but testified that she had a tag which said "registered nurse" and he had seen her at the hospital before. Perkins had not filled her name in on the form. He filled out the top part of the lab analysis form with the date, name and address, time blood taken, time McDonald was apprehended, and circled "nurse" as person taking sample. He signed the form, took the sealed vial of blood and left it on the dispatch desk. The next morning someone on duty sent the vial of blood by certified mail to the Missoula crime lab.
Kenneth Anderson, forensic scientist at the crime lab in Missoula, received a sealed blood sample from the Livingston Police Department on August 15, 1983. He followed routine procedures for blood alcohol analysis on the gas chromatograph and recorded a reading of .23, considerably higher than the .10 rebuttable presumption that a person is under the influence. Section 61-8-401(3)(c), MCA. The expert testified that he filled in the bottom half of the lab analysis form.
With Officer Perkins identifying the top half of the form and the forensic scientist identifying the bottom half, the trial court deemed the foundation adequate to admit into evidence the lab analysis report of the blood alcohol test results. Def
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