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Matthews v. Commonwealth2/22/2001
TO BE PUBLISHED
AFFIRMING, IN PART, AND REVERSING, IN PART
Appellant, Jimmy Matthews, was convicted in the Jefferson Circuit Court of several drunk-driving related offenses. The jury convicted him of one count of first-degree assault, two counts of first-degree criminal mischief, two counts of first-degree wanton endangerment, DUI fourth offense, driving on a suspended license, and of being a persistent felony offender in the first degree. He was sentenced to 50 years in prison and he now appeals as a matter of right.
On June 26, 1996, at approximately 1 I:00 p.m., Appellant was traveling southbound on northbound interstate 65 in Louisville. After weaving across several lanes, Appellant's vehicle struck the pickup truck of Sharon Glover, which was traveling northbound. Appellant's vehicle next struck the vehicle of Charles Hatchell head-on, then flipped upside-down and pinned Appellant inside the vehicle. A fourth vehicle, a yellow Mustang, was hit by debris from Glover's wrecked truck.
Glover suffered an injury to her neck and required three weeks of physical therapy. Hatchell's injuries were more severe. His foot was nearly detached, and he was hospitalized for ten (10) days. Appellant was extricated from his vehicle with the help of the jaws of life, and was transported to a nearby hospital. Officer Steve Johnson noticed the strong smell of alcohol on Appellant when he was in the ambulance. The rescue workers as well had noted signs of intoxication when they extricated him from his overturned vehicle. Both Officer Johnson and Officer Tom Gilsdorf observed Appellant at the hospital and noted that he was combative and incoherent, had slurred speech, and smelled strongly of alcohol.
At the hospital, Tom Gilsdorf, a veteran police officer, observed a woman, believed to be a registered nurse, follow all the procedures required by state law in taking a blood sample from Appellant. A state crime laboratory test later showed this blood sample contained .25 grams of ethyl alcohol per 100 milliliters of blood, two and one half times the legal limit for intoxication. Appellant's license was suspended at the time of the wreck.
The Commonwealth commented on the result in its opening argument, but did not return to the issue of the blood test until it called Officer Gilsdorf to testify. Because he noted signs of intoxication, Officer Gilsdorf stated that he asked for a blood kit and watched as two vials of blood were drawn from Appellant. Further, testifying that he knew the prescribed procedures for drawing blood for alcohol analysis, he stated that the nurse, whose name he remembered only as Susan, prepared Appellant's arm with betadine, a non-alcoholic solution. While he didn't remember the nurse's last name at trial, he noted it , as well as the date and time, on the blood kit at the time the sample was drawn .
The Commonwealth was unable to locate Susan, and the only other witness to testify about the blood analysis was Terry Comstock, a chemist who analyzed the blood sample at Kentucky State Police Laboratory. Responding to the Commonwealth attorney's question, Comstock testified that the sample read .25 grams of ethyl alcohol per 100 milliliters of blood. In response to a second question, he identified the report his office had produced. Only when the Commonwealth moved to introduce the report into evidence did Appellant object to the Commonwealth's lack of a proper foundation for the reading, namely the credentials of the nurse who drew the blood. KRS 189A.103(6) authorizes blood to be drawn by a physician, registered nurse, phlebotomist, medical technician or medical technologist. The trial court took great pains to assure it
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