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State v. Zakovi4/12/2005
nce in support of the District Court's conclusion. We conclude that the District Court committed no error by denying Zakovi's suppression motion on these grounds.
Did the District Court err when it denied Zakovi's motion to suppress the results of his blood alcohol test on the grounds that the sample was collected in violation of § 61-8-405(1), MCA?
Zakovi argues that Binfet withdrew the blood sample at the direction of Officer Cohenour, and not pursuant to the supervision or direction of a physician or registered nurse in accordance with § 61-8-405(1), MCA. Zakovi argues therefore that the test results should have been suppressed. We disagree.
For the results of a defendant's blood test to be admissible as evidence under § 61-8-404(1)(b)(ii), MCA (2001), the blood sample shall be withdrawn by a person competent to do so under § 61-8-405(1), MCA, which provides:
Only a physician or registered nurse, or other qualified person acting under the supervision and direction of a physician or registered nurse, may . . . withdraw blood for the purpose of determining any measured amount or detected presence of alcohol . . . . " [Emphasis added.]
Binfet testified that, although she was advised by a secretary of the need for her assistance in withdrawing a sample of Zakovi's blood, she was nonetheless continuously under the supervision of a registered nurse on duty in the emergency room, as her position is subordinate and requires compliance with the registered nurse's orders under hospital policy. Thus, substantial evidence supported the District Court's conclusion that Binfet withdrew the sample in accordance with § 61-8-405(1), MCA, and therefore we conclude there was no error in denying Zakovi's motion to suppress the evidence on that basis.
Affirmed.
JIM RICE
We Concur:
KARLA M. GRAY
JAMES C. NELSON
PATRICIA O. COTTER
JOHN WARNER
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