No. 84-420
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
THE STATE OF IGONTANA,
Plaintiff and Respondent,
-vs-
ROBERT RAYMOND McDONALD,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Madden, Knuchel & McGregor; Karl Knuchel argued,
Livingston, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
James M. Scheier argued, Asst. Atty. General, Helena
Robert Jovick, City Attorney, Livingston, Montana
Submitted: March 11, 1985
Decided : April 2, 1985
Filed:
t i "83
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant appeals his conviction for driving under the
influence, a violation of S 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 wit.h
full discovery?
(b) Did the State comply with the
statutory requirements for admissibility
of evidence of blood alcohol content in
a prosecution of S 61-8-401
. or
$ 61-8-406, MCA?
(2) Was there sufficient evidence to convict the
defend.ant of the crime of driving under the influence without
the evidence of blood alcohol content?
Defendant Robert McDonald wa.s driving his Ford picku.p
with large camper at about 6 : 0 0 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.' vehicle
s
crossed the double yellow lines at Park and G , Park and F,
a.nd 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 specifical.ly 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 61-8-40]. (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. Defendant's attorney raised and renewed his objec-
tions that the introduction of the document had no foundation
and thus was not admissible. The court noted the objections
and the lack of testimony from the nurse taking and sealing
the sample but determined that "those are things that qo to
the weight of the evidence rather than the admissibility."
Defendant testified that he had worked the 6:00 p.m. to
2:00 a.m. shift as the manager/bartender at the Livingston
Bar and Grill the night before the arrest. He had been
employed there eight months. The night of August 11, 1383,
Jim Singleton, a prospective employer, had waited from 1 1 ~ 3 0
p.m. to talk with McDonald about work in the construction
business, McDonald claimed he did not drink on shift hut had
two beers while closing up. It was customary not to drink on
shift and the owner was there most of the night. 1,eaving at
about 3:30 a.m., McDonald drove Singleton home, and they
talked outside for a couple of hours in order not to disturb
Singleton's wife. McDonald stated they had no alcohol in the
pickup (and the officer testified he saw none at the arrest).
At the time of trial, McDonald was employed at Singleton
Construction.
McDonald testified he was not used to driving his
pickup with the camper on it and it had been windy that
night. In a courtroom demonstration, he had trouble doing
the heel/toe tests and walking a straight line with his
cowboy boots, the same attire he wore at the time of the
arrest. He claimed he did not drink the quantity of alcohol
indicated by the test results and expert testimony, which
would have been about twenty twelve-ounce cans of beer.
The trial court in its findings of fact and conclusions
of law found that the evidence, including the videotape, the
blood test results and testimony of the patrolman, the foren-
sic scientist and defendant, established guilt beyond a
reasonable d-oubt. The court observed of the videotape that
while defendant did well on some of the dexterity tests, he
wobbled in a few and appeared somewhat dazed. The court
entered a judgment of conviction and sentenced the defendant
to pay a fine of $300, to serve two days confinement in the
Park County jail, and to surrender his driver's license
pursuant to § 61-5-208(2), MCA.
(1) Foundation for Exhibit -
A: Adequate for admissibility?
The issue of admissibility of the blood test results is
dispositive because the judge relied in part upon the test as
evidence establishing guilt beyond a reasonable doubt. In a
trial on the criminal charge of driving under the influence,
evidence is admissible only if it meets statutory require-
ments in addition to the foundation required. under the Mon-
tana Rules of Evidence.
"Evidence admissible -- conditions of
admissibility. (1) Upon the trial of any
criminal action or other proceeding
arisina out of acts alleged to have been
committed by any person in violation of
61-8-401 or 61-8-406:
"(a,) evidence of the amount of alcohol in
the person's blood at the time of the act
alleged, as shown by a chemical analysis
of his blood, breath, or urine, is admis-
sible; and
"(b) a report of the facts and results of
a.ny chemical test of a person's blood,
breath, or urine administered under
61-8-401 is admissible - evidence -
in if:
"(i) the breath analysis report was
prepared and verified by the person who
performed the test or the blood or urine
test was a laboratory analysis and the
analysis was done in a laboratory operat-
ed. by the department of just-iceor by an.y
other laboratory or facility certified or
exempt from certification under the rules
of the department; -and
" (ii) the report was prepared in accor-
dance with any applicab1.e rul.es of the
department; -and
"(iii) if the test was on a blood sample,
the person withdrawing the blood must
have been competent to do so under
61-8-405 (1). " Section 61-8-404, MCA.
(Emphasis added. )
Appellant contends that the absence of the nurse's name
on the form affects the admissi-bility of State's Exhibit A.
Defense counsel objected at trial to the inadequate founda-
tion, claiming that without the name of the person responsi-
ble for the information contained in the document, the court
should have suppressed the evidence and testimony. In fail-
ing to provide the nurse's name, the State prevented defen-
dant from challenging the adequacy of the procedures used at
this step.
The State forensic scientist in testifying to his
analysis of the blood sample relied upon basic assumpti-ons
about the procedures used in taking the blood sample, appel-
lant contends. His testimony has no foundation without a
showing that his assumptions about the blood sample were
correct, i.e., the report was prepared in accordance with the
administrative rules of the department and the person with-
drawing the blood was qualified to do so under § 61-8-405(1),
MCA :
"Administration of tests. (1) Only a
physician or regTstered nurse or other
qualified person under the supervision
and direction of a physician or regis-
tered nurse acting at the request of a
police officer may withdraw blood for
the purpose of determining the a1.coholic
content therein. . . ."
The State contends that the test administered was
performed in compliance with Montana 1a.w. At the request of
Officer Perkins, a qualified person withdrew the blood. The
State claims the fact that Exhibit A does n.ot contain the
name of the person does not render the test results inadmis-
sible. Further, questions about accuracy of a chemical test
go to the weight of the evidence, not admissibility, the
State argues. The State asserts it complied with full dis-
covery by fully disclosing all the information it had to
defendant. The State's basic contention is that the founda-
tion for admitting the document was adequate: Officer
Ferkins identified the top half of the form from filling in
the information and the forensic scientist identified the
bottom half after performing the test and noting the result.
The applicable rules of the Department, however, re-
quire more than the officer's assumption that the person wa.s
qualified to perform the test and that it was administered
properly.
"BLOOD SAMPLING. (1) Blood samples may
be collected from living individuals
-
only persons authorized by law, upon
written request - -a peace officer. The
of
skin at the area of puncture must be
thoroughly cleansed and disinfected with
an aqueous solution of non-volatile
antiseptic. Alcohol of phenolic solu-
tions may not be used 2 s a skin
antiseptic.
" (3) At least 5 milliliters of blood
should be collected for analysis.
"(4) The blood sample must be deposited
into a cl-eandry container, containing a
solid anti-coagulant and preservative.
The container should then b e capped or
stoppered and sealed in a mailins con-
tainer with - least
information :
at e foliowinq
" (a) Name of suspect;
" (b) Date, time and site ... of
collection; and
" (c) Name or initials of persons -
col-
lectingTd/or sealing sample.
" (5) Sodium flouride or its equivalent
must be used as a preservative. Sodium
ci.trate or potassj.um oxalate or equiva-
lent must be used as an anti-coagulant.
If no additive or additives other than
those listed above are used, a comment
so stating should accompany the sample.
Tf other additives are employed, the
name of the additive and its quantity
should be listed.
" (6) When possible, the of'ficer re-
questinq blood samplinqshall observe
collection - that he or she may
sample - - - - so -
attest - - sample's authenticity.
to the
The officer should then initial - -or mark
the sample - --
- seal for further identifica-
tion. " A.R.M. 23.3.931. (Emphasis
added. )
The Department's own regulations require a written request to
a person authorized by law to collect the sample. The rules
spell out the procedure for blood sampling, and then require
a minimum of information on the mailing container lab form,
including the name or initia1.s to identify the person col-
lecting and/or sealing the sample.
The rule recommends that the officer observe the col-
lection to verify authenticity and then initial or identify
the sample. It is clear that the initials or name of the
nurse should have appeared on the form in addition to that of
Officer Perkins. Without the identification of the nurse on
the lab form, Perkins' testimony that she was a nurse because
he recalled she had a tag saying she was a nurse amounts to
hearsay.
We hold that a criminal defendant on a charge of driv-
ing under the influence is entitled to the procedural safe-
guards of the Administrative Rules of Montana. To admit
evidence of blood alcohol content and a test report, the
State must lay a foundation pursuant to S 61-8-404, MCA,
which incorporates the ARM: (1) the laboratory analysis must
be done in a laboratory qua.lified under the rules of the
Department; ( 2 ) the report must be prepared in accordance
with the rules of the Department; and ( 3 ) , if a bl.ood sam-
pling, the person withdrawing the blood must he demonstrably
qualified to do so.
(2) Sufficient evidence - convict without the blood alcohol
to
test?
We cannot decide the sufficiency of the evidence with-
out the blood test, because we have no indication of the
weight the trial court placed. upon the test in its decision.
We cannot try the matter de novo. For this reason, we remand
for a new trial.
Reversed and remanded.
///c c
Chief Justice
We concur: