concurring.
I agree with the court that the State presented substantial evidence that Bates negligently caused the death of Dustin Ferguson as a result of operating a motor vehicle while intoxicated and would therefore affirm her negligent-homicide conviction on that basis. I write separately because I disagree with the court’s holding regarding the admission of Bates’s blood-alcohol test at trial. I find no error in the circuit court’s decision on this point and would affirm Bates’s negligent-homicide J^onviction on this alternative basis as well — that Bates negligently caused the death of Dustin Ferguson as a result of operating a motor vehicle while she had a blood-alcohol concentration of .08 or more.
Code section 5 — 65—204(d)(1) provides, “[w]hen a person submits to a blood test at the request of a law enforcement officer under a provision of this section, blood may be drawn by a physician or a person acting under the direction and supervision of a physician.” In Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992), Gavin challenged the admission of his blood-alcohol test results because there was no doctor present, though one was on-call, when a registered nurse drew his blood. Our supreme court held: “[W]e decline to interpret ‘under the direction and supervision of a physician’ so narrowly as to require that a physician be actually present.” Gavin, 309 Ark. at 161, 827 S.W.2d at 163.
Here, James Vance testified that he is a twelve-year employee of Jefferson Regional Medical Center. He assisted the police in obtaining a blood sample from Bates after she was brought into the ER. Vance said that Bates was in trauma room ten when he took her blood and that Bates was not awake at the time. Vance said there was an instruction form that came with the kit and he described the particular procedure he followed in detail. Vance testified that after he drew Bates’s blood he packaged it according to the instructions and gave it to the waiting trooper. Trooper Bonita Swint testified that she observed Vance draw Bates’s blood and that Vance handed her the packaged blood sample when he was finished.
| ]0At trial, Bates objected to the introduction of her blood-alcohol test results. She argued that there had been no testimony that Vance was acting under the direction and supervision of a physician when he drew her blood. She further argued that Vance had not testified about his qualifications or stated what his job title is. The circuit court overruled Bates’s objection, commenting
It was an ER draw and that’s — you have an ER doctor that’s on call, whether he’s standing in another room or in another part of the hospital, routinely in these cases they’re not going to pull a doctor in just to draw some blood. It’s all done under the supervision of the hospital and/or the doctor on call. We’ve all been to the emergency room. Furthermore, there’s no showing here of prejudice or harm. Just because a doctor wasn’t standing next to the defendant when the blood was taken from her body.
I agree with the circuit court’s analysis and conclusion. In Bates’s case, a twelve-year hospital employee testified — in detail — about the procedure he followed in extracting Bates’s blood. He further testified that he drew Bates’s blood when she was in a trauma room at Jefferson Regional Medical Center, while a state trooper watched the entire process unfold. As the circuit court pointed out, a hospital ER is, of course, supervised by a doctor. And our supreme court made it clear in Gavin that “acting under the direction and supervision of a physician” does not mean that a physician has to be looking over the blood-drawer’s shoulder. Indeed, whether the supervising doctor is on-call, in the next trauma room, or in a different wing of the hospital makes no difference under Gavin. Further, there is no requirement in the statute that the blood-drawer be a registered nurse or have any other | n particular qualifications. The only requirement is that the blood-drawer be “acting under the direction and supervision of a physician.”
In short, I see no statutory violation and would therefore affirm the circuit court’s admission of Bates’s blood-alcohol test. And with the admission of the test, there was substantial evidence that she negligently caused the death of Dustin Ferguson as a result of operating a motor vehicle while she had a blood-alcohol concentration of .08 or more. Ark.Code Ann. § 5-10-105(a)(l)(B)(i). I would therefore affirm Bates’s negligent-homicide conviction on this basis as well.