No. 84-420 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

THE STATE OF IGONTANA, 

Plaintiff and Respondent, 

-vsROBERT 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 

ti "83 Filed: 
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 6:00 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, 
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 objections 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 11~30 

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 forensic 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 requirements in addition to the foundation required. under the Montana 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 admissible; 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 - in evidence - 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 operated. by the department of just-ice or by an.y 

other laboratory or facility certified or 

exempt from certification under the rules 

of the department; - and 

" (ii) 

dance 

depar 

the report was prepared in accorwith any applicab1.e rul.es of the 

tment; - 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 foundation, claiming that without the name of the person responsible for the information contained in the document, the court 

should have suppressed the evidence and testimony. In failing to provide the nurse's name, the State prevented defendant 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, appellant 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 withdrawing 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 registered 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 inadmissible. 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 discovery by fully disclosing all the information it had to 

defendant. The State's basic contention is that the foundation 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, require 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 -- of a peace officer. The 

skin at the area of puncture must be 

thoroughly cleansed and disinfected with 

an aqueous solution of non-volatile 

antiseptic. Alcohol of phenolic solutions may not be used 2s 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-ean dry container, containing a 

solid anti-coagulant and preservative. 

The container should then be capped or 

stoppered and sealed in a mailins container with - at least e foliowinq 

in forma tion : 

" (a) Name of suspect; 

" (b) Date, time and site . . . of 

collection; and 

" (c) Name or initials of persons - collectingTd/or sealing sample. 

" (5) Sodium flouride or its equivalent 

must be used as a preservative. Sodium 

ci.trate or potassj.um oxalate or equivalent 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 requestinq blood samplinqshall observe 

sample collection ------ so that he or she may 

attest - to - the sample's authenticity. 

The officer should then initial -- or mark 

- the sample seal - -- for further identification. " 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 collecting and/or sealing the sample. 

The rule recommends that the officer observe the collection 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 driving under the influence is entitled to the procedural safeguards 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 sampling, the person withdrawing the blood must he demonstrably 

qualified to do so. 

(2) Sufficient evidence - to convict without the blood alcohol 

test? 

We cannot decide the sufficiency of the evidence without 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. 

/// Chief Justice cc 
We concur: