No. 84-420 IN THE SUPREME COURT OF THE STATEOF MONTANA 1985

THE STATE OF IGONTANA, Plaintiff and Respondent,

-vsROBERT RAYMOND McDONALD, Defendant and Appellant.

APPEAL FROM: District Court ofthe Sixth Judicial District, In and for the County of Park, The Honorable Byron Robb, Judgepresiding.

COUNSELOF RECORD:

ForAppellant:
Madden, Knuchel & McGregor; Karl Knuchel argued, Livingston, Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana JamesM. 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. Turnagedelivered 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 theDistrictCourt allow into evidence State's Exhibit A, the Specimen-Collection Laboratory Analysis form, and testimony on the formwithout aproper foundation? 

### (a) Did the State fail to comply wit.h full discovery? (b) Did the State comply with the statutory requirements foradmissibility 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.antof the crimeof driving under the influencewithout the evidence of blood alcohol content? Defendant Robert McDonald wa.sdriving 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 45miles per hour in aposted 25mile 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 100block of NorthMain. 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 arrestedMcDonald fordriving 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 atLivingstonMemorial Hospital. Officer Perkinshad 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 samplebut 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" asperson taking sample. He signed the form,took the sealedvial of blood.and left iton the dispatchdesk. The nextmorning 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 PoliceDepartmenton 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. Theexpert 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 thebottom 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 documenthad 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 "thoseare things that qo to the weight of the evidence rather than the admissibility." Defendanttestified thathe 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 claimedhe did not drink on shifthut had two beerswhile closingup. Itwas customary not to drink on shift and the ownerwas there most of the night. 1,eavingat about 3:30 a.m., McDonald drove Singleton home, and they talked outside for a couple of hours in order not to disturb Singleton'swife. McDonald stated they had no alcohol in the pickup (andthe 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 hiscowboy 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 findingsof factand 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 theblood test results is dispositivebecause the judge relied inpart upon the test as evidence establishing guilt beyond a reasonabledoubt. 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'sblood at the time of the act alleged, as shown by a chemical analysis of hisblood, breath,or urine, is admissible;and"(b) a report of the facts and results of a.nychemical 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 analysiswasdone in a laboratory operated.

### by the departmentof just-iceorby an.y other laboratory or facility certifiedor exempt from certification under the rules of the department; 

### - and 

### "(ii) dance depar the report was prepared in accorwith any applicab1.e rul.esof the tment; 

### - and "(iii) if the testwas on ablood sample, the person withdrawing the blood must have been competent to do so under 61-8-405(1).

### " Section 61-8-404, MCA. (Emphasisadded.) Appellant contends that the absence of the nurse's name on the form affects the admissi-bilityof State's Exhibit A. Defense counsel objected at trial to the inadequate foundation, claiming that without the name of theperson 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 reportwasprepared in accordance with the administrative rules of the department and the person withdrawing theblood was qualified to do sounder § 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 thepurpose 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.otcontain 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 apeace 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) Theblood samplemust be deposited intoa cl-eandry container, containing a solid anti-coagulant and preservative. The container should thenbe capped or stoppered and sealed in a mailins container with 

### - at least 

# e foliowinq information: 

### "(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.trateor potassj.umoxalate or equivalentmust 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 shouldbe listed. 

### "(6) When possible, the of'ficer requestinq blood samplinqshall observe sample collection so that he or shemay 

### ------ attest 

### - to 

### - the sample's authenticity. The officer should then initial or mark 

## -- the sample seal for further identifica

### - --- tion.

### " A.R.M. 23.3.931. (Emphasis added.) TheDepartment's own regulations require a written request to

a person authorized by law to collect the sample. The rules spell out the procedure forblood sampling,and then require

a minimum of information on the mailing container lab form, including the name or initia1.sto identify the person collecting and/or sealingthe 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 shewas a nurse becausehe 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 analysismust be done in a laboratory qua.lifiedunder the rules of the Department; (2) the report must be prepared in accordance with the rules of the Department; and (3), if a bl.oodsampling, 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 evidencewithout the blood test, because we have no indication of the weight the trial courtplaced.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 

# ccWe concur: