DA 07-0375

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 288

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

KENNETH EUGENE MERRY,

 Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District,

In and For the County of McCone, Cause No. DC 06-05

Honorable Katherine M. Irigoin, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Robert J. Savage; The Savage Law Firm; Sidney, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General; J. Stuart Segrest, 

Assistant Attorney General; Helena, Montana

Kendall Link, McCone County Attorney; Circle, Montana

Submitted on Briefs: May 14, 2008

 Decided: August 12, 2008

Filed:

__________________________________________

Clerk

August 12 2008
2

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Kenneth Eugene Merry (Merry) appeals from his conviction in the Seventh 

Judicial District, McCone County, of driving under the influence of alcohol (DUI). We 

affirm.

¶2 We restate the issues as follows:

¶3 Did the District Court err when it denied Merry’s motion to suppress the results of 

his blood alcohol test on the grounds that the sample was collected in violation of § 61-8-

405(1), MCA? 

¶4 Does the Health Center’s policy unlawfully allow LPNs to conduct blood draws 

without the supervision and direction of a physician or registered nurse?

¶5 Do violations of the Health Center’s policy demonstrate that Bailey was not an 

“other qualified person acting under the supervision and direction of a physician or 

registered nurse” as required by § 61-8-405(1), MCA?

¶6 Did the District Court err when it used Merry’s failure to controvert his implied 

consent to support its ruling?

BACKGROUND

¶7 On March 26, 2006, at approximately 2:30 a.m., McCone County Sheriff’s Deputy 

Marc Speer observed Merry commit several traffic infractions, including driving on the 

wrong side of the street, failing to stop at three different stop signs, and stopping in the 

middle of the street although he had the right of way. Deputy Speer stopped Merry and

began a DUI investigation. Deputy Speer decided not to conduct standard field sobriety 
3

tests due to Merry’s difficulties with walking and maintaining his balance. Merry 

provided Deputy Speer a breath sample, which indicated that Merry had an alcohol 

concentration of .136. Merry also agreed to provide a blood sample. Deputy Speer 

transported Merry to the McCone County Health Center (the Health Center), where Tina 

Bailey, the licensed practical nurse (LPN) on duty, conducted Merry’s blood draw at 

Deputy Speer’s request. A registered nurse (RN) and a physician’s assistant were on call, 

but were not physically present in the Health Center. 

¶8 The State charged Merry with DUI after receiving the results of Merry’s blood 

alcohol test, which indicated that Merry had an alcohol concentration of .14. Merry filed 

a motion to suppress the results of the test, arguing that Bailey was not statutorily 

authorized to draw blood to detect the presence of alcohol. The Justice Court denied 

Merry’s motion. Merry then pleaded guilty to DUI, but specifically reserved the right to 

appeal the admissibility of the blood test. Merry appealed the Justice Court’s ruling to 

the District Court and moved to suppress the result of the blood test. The District Court 

denied Merry’s motion to suppress after considering the parties’ briefs and hearing oral 

argument. Merry now appeals.

STANDARD OF REVIEW

¶9 We review a district court’s denial of a motion to suppress to determine whether 

the district court’s findings of fact are clearly erroneous and whether the district court’s

conclusions of law are correct. State v. Zakovi, 2005 MT 91, ¶ 9, 326 Mont. 475, ¶ 9, 110 

P.3d 469, ¶ 9. 
4

DISCUSSION

¶10 I Did the District Court err when it denied Merry’s motion to suppress 

the results of his blood alcohol test on the grounds that the sample was collected in 

violation of § 61-8-405(1), MCA?

¶11 Merry contends that the District Court erred when it concluded that Bailey was 

acting under the supervision and direction of a physician or RN when she drew his blood. 

Merry maintains that Bailey was not acting under the supervision and direction of a 

physician or RN, as required by § 61-8-405, MCA, because neither a physician nor an

RN was physically present at the Health Center. 

¶12 The District Court’s interpretation of § 61-8-405, MCA, presents a conclusion of 

law which we review for correctness. State v. Price, 2002 MT 150, ¶ 15, 310 Mont. 320, 

¶ 15, 50 P.3d 530, ¶ 15. When interpreting statutes, we seek to implement the 

Legislature’s objectives. Boettcher v. Montana Guar. Fund, 2007 MT 69, ¶ 19, 336 

Mont. 393, ¶ 19, 154 P.3d 629, ¶ 19. The statute’s plain language controls our 

interpretation if we can discern the legislative intent from the plain meaning of the 

statute’s words. Boettcher, ¶ 19. Further, we refuse to insert “what has been omitted or 

to omit what has been inserted.” Section 1-2-101, MCA. The definition of a statutorily 

defined term applies throughout the Montana Code unless “a contrary intention plainly 

appears.” Section 1-2-107, MCA.

¶13 Section 61-8-405, MCA, governs the administration of blood tests and provides 

that only a physician, registered nurse, or “other qualified person acting under the 
5

supervision and direction of a physician or registered nurse,” may withdraw blood to 

determine the presence of alcohol and drugs. Though Merry claims to dispute that Bailey 

is a “qualified person,” Merry raises no challenges to Bailey’s qualifications on appeal. 

Further, Merry’s briefing to the District Court reveals that he regarded Bailey as a 

qualified person within the meaning of § 61-8-405(1), MCA. For this appeal, we accept 

without deciding that Bailey, as an LPN, is an “other qualified person” as contemplated 

by § 61-8-405(1), MCA.

¶14 Merry argues that Bailey was not acting under the supervision and direction of a 

physician or RN because neither a physician nor an RN was physically present at the 

Health Center. According to Merry, the plain language of § 61-8-405(1), MCA, clearly 

and unambiguously requires the physical presence of a physician or an RN for a blood 

draw administered by an “other qualified person” to be proper. Merry contends that the 

District Court erred in relying on statutes related to other healthcare professions to 

interpret the meaning of supervision and direction. The State counters that the legislative 

history of § 61-8-405, MCA, and this Court’s precedent support a more “general” view of 

supervision and direction. The State further argues that the purpose of the statute was 

satisfied in this case because Bailey was under the supervision of an on-call RN. 

¶15 Section 61-8-405, MCA, does not define the terms “supervision and direction.” 

Definitions for “direct supervision,” “general supervision,” and “qualified medical 

direction” appear in other sections of the Montana Code Annotated; however, in each 

instance, the Legislature has constrained the applicability of the definitions to particular 
6

sections of the Code. For example, sections relating to dental hygienists and hearing aid 

dispenser trainees state that the definitions apply for “the purposes of this section” and 

the section relating to respiratory care states that the definition is applicable “[a]s used in 

this chapter.” Sections 37-4-405, 37-16-405, and 37-28-102, MCA. The Legislature 

plainly has limited the reach of these definitions, and thus, they cannot properly define 

the terms of § 61-8-405(1), MCA. Section 1-2-107, MCA. 

¶16 As the phrase “acting under the supervision and direction” is undefined, we look 

to the plain meaning of the statute’s words to discern the legislative intent. Boettcher, 

¶ 19. The plain meaning of the word “under,” as used in the statute means “[s]ubject to 

the authority, rule or control of: under a dictatorship. . . . Subject to the supervision, 

instruction, or influence of: under parental guidance.” American Heritage Dictionary of 

the English Language 1874 (4th ed. Houghton Mifflin Co. 2000). “Supervision” is 

defined as the “act, process, or function of supervising” and “supervise” means to “have 

the charge and direction of; superintend.” American Heritage Dictionary of the English 

Language at 1738-39. “Direction” means “[m]anagement, supervision, or guidance of an 

action or operation. . . . An authoritative indication; an order or a command.” American 

Heritage Dictionary of the English Language at 512. We disagree with Merry that § 61-

8-405(1), MCA, clearly and unambiguously requires the physical presence of a physician 

or RN for a blood draw administered by an “other qualified person” to be proper. The

definitions set forth above do not resolve whether § 61-8-405(1), MCA, requires the 
7

physical presence of a physician or RN; the plain meaning of the statute’s words is broad 

enough to encompass both the State’s and Merry’s interpretations. 

¶17 We turn to a statute’s legislative history to determine its correct interpretation 

when we cannot discern the Legislature’s intent from the statute’s plain language. 

Stockman Bank of Montana v. Mon-Kota, Inc., 2008 MT 74, ¶ 17, 342 Mont. 115, ¶ 17, 

180 P.3d 1125, ¶ 17. Prior to 1981, § 61-8-405, MCA, authorized only physicians and 

RNs to draw blood to determine the presence of alcohol. The 1981 amendment allowed 

“other qualified person[s] under the supervision and direction of a physician or registered 

nurse” to draw blood. Section 61-8-405, MCA (1981). Unfortunately, the committee 

minutes do not specify whether the Legislature contemplated that “supervision and 

direction” would require the actual physical presence of a physician or RN or something 

more general.

¶18 The committee minutes do indicate, however, that § 61-8-405, MCA, was 

amended to expand the category of persons who permissibly could conduct a blood test, 

and thus, to facilitate DUI prosecutions. The committee members heard testimony that 

blood tests were being challenged because lab technicians conducted blood draws, rather 

than a physician or RN. Mont. H. Jud. Comm., Hearing on SB 111, 47th Leg., Reg. Sess. 

3 (Mar. 5, 1981). Committee members also learned that the individuals who perform the 

blood draws generally are lab technicians. The bill’s proponents informed the committee 

that the amended language would remove evidentiary challenges to blood tests which 

were not performed by a physician or an RN. Mont. H. Jud. Comm., Hearing on SB 111, 
8

at 3. Senator Stimatz, who introduced the bill at the request of the Department of Justice 

(DOJ), indicated that “qualified persons, such as laboratory technicians” should be 

“allowed to take blood samples to determine alcohol level of the blood.” Mont. Sen. Jud. 

Comm., Hearing on SB 111, 47th Leg., Reg. Sess. 1 (Jan. 19, 1981). Similarly, 

Representative Daily, who presented the bill in the House, stated that the amendment 

would “allow a person other than a doctor or a registered nurse to draw blood. A lab 

technician who specializes in this could withdraw the blood.” Mont. H. Jud. Comm., 

Hearing on SB 111, at 2. Notably, neither Senator Stimatz nor Representative Daily 

hinged the lab technician’s ability to draw blood on the physical presence of a physician 

or RN. Further, Senator Mazurek questioned whether “even broader language in 

determining who was qualified to draw a blood sample might be helpful.” Mont. Sen. 

Jud. Comm., Hearing on SB 111, at 1-2. DOJ spokesman Larry Majerus responded that

the main intent of the amendment was “to allow the medical technicians to be included” 

as persons qualified to draw blood samples, but that it was not intended to “take the 

process out of the hospital environment where such qualified persons would not be 

available.” Mont. Sen. Jud. Comm., Hearing on SB 111, at 2. 

¶19 Given the overall purpose of the amendment, the apparent willingness of the 

Senate Judiciary Committee to consider even broader language in the statute, and the 

discussion of laboratory technicians’ ability to draw blood with no mention of a specific 

level of supervision and direction, we conclude that the Legislature contemplated a more 

general level of “supervision and direction” than that suggested by Merry. Adopting 
9

Merry’s interpretation would require us to insert the terms “onsite” or “direct” to qualify 

the “supervision and direction” requirement, and thus, to insert what the Legislature 

omitted. As the Legislature has not limited “supervision and direction” to onsite or direct 

supervision, we conclude that a physician’s or RN’s physical presence is not required and 

that a qualified person who draws blood while subject to offsite or on-call supervision 

can satisfy the statutory requirement that the person be “acting under the supervision and 

direction of a physician or registered nurse . . . .” Section 61-8-405(1), MCA.

¶20 Our conclusion that § 61-8-405(1), MCA, does not require the physical presence 

of a physician or RN finds support in other statutory provisions involving supervision and 

direction in the healthcare arena. For example, § 37-4-405, MCA, allows a dental 

hygienist to practice under a licensed dentist’s supervision. The statute differentiates 

between “direct supervision” and “general supervision” and provides that treatment 

requiring direct supervision “must be performed while the dentist is on the premises” 

while treatment falling under general supervision does not require the dentist to be on the 

premises. Section 37-4-405, MCA. Similarly, § 37-16-405, MCA, requires a trainee 

who is licensed to dispense hearing aids to “work under the direct supervision of the 

sponsoring licensed hearing aid dispenser.” In this context, “‘direct supervision’ means 

the direct and regular observation and instruction of a trainee by a licensed hearing aid 

dispenser who is available at the same location for prompt consultation and treatment.” 

Section 37-16-405(8), MCA. Statutes regulating physical therapists and physician 

assistants also detail when direct or onsite supervision is required. See § 37-11-105, 
10

MCA, and § 37-20-403, MCA. Though we do not use these statutes to define the terms 

of § 61-8-405, MCA, these statutes demonstrate that the Legislature drafts with 

specificity when it intends to require direct or onsite supervision and direction. 

¶21 Moreover, to require the physical presence of a physician or RN when the blood 

sample is withdrawn renders useless the provision allowing “other qualified persons” to 

take the blood sample; if the physician’s or RN’s presence is required, the physician or 

RN could simply perform the blood draw. Such a limited reading contradicts the purpose 

of the amendment and renders the “other qualified person acting under the supervision 

and direction of a physician or registered nurse” language moot. Section 61-8-405(1), 

MCA. 

¶22 Our conclusion that a physician’s physical presence is not required under § 61-8-

405(1), MCA, is also consistent with Zakovi. In Zakovi, we determined that a 

phlebotomist conducted a blood draw in accordance with § 61-8-405(1), MCA, because 

she was “continuously under the supervision of a registered nurse on duty in the 

emergency room, as her position is subordinate and requires compliance with the 

registered nurse’s orders under hospital policy.” Zakovi, ¶ 36 (emphasis added). Though 

the RN in Zakovi was apparently present at the St. Peter’s Hospital complex in Helena, 

we focused on the phlebotomist’s subordinate position and the requirement that the 

phlebotomist follow the RN’s orders, rather than on the physical presence of the RN. 

¶23 In this case, the District Court heard testimony that both Hans Arnston, the 

director of nursing and an RN, and Patti Wittkopp, the physician’s assistant, were on call 
11

the night that Bailey withdrew Merry’s blood. Nancy Hansen, the Health Center’s CEO, 

testified that the Health Center does not have a physician, but does have a physician’s 

assistant who is on call twenty-four hours a day, seven days a week. Hansen further 

testified that an RN is on call whenever an LPN is on duty, and that Arnston was on call 

the night that Bailey drew Merry’s blood. According to Hansen, an RN is on call in case 

a situation arises that an LPN is not qualified to handle. 

¶24 Hansen also testified that Arnston provides LPNs training in blood drawing. 

When an LPN demonstrates his or her proficiency at drawing blood, the LPN receives a 

“competency” in that area and is permitted to draw blood. Hansen testified that Bailey 

had received the competency to withdraw blood. Hansen further testified that LPNs are 

supervised by “telephone the same way our medical provider provides supervision to our 

physician’s assistant.”

¶25 Bailey testified that she was supervised and directed by superior staff on the night 

that she drew Merry’s blood. Bailey testified that Arnston and Wittkopp are her 

supervisors and that Arnston was the person she calls when she needs assistance. She 

stated, “I am under the direction of an RN at all times. If I need them to come in and I 

can’t handle a situation, I do, I call. [There’s] always somebody on call for me.”

¶26 The District Court determined that Bailey was subject to the supervision and 

direction of the on-call RN and that the offsite level of supervision and direction satisfied 

the requirements of § 61-8-405(1), MCA. The supervision in this case falls within the 

statutory language and is consistent with the purpose of § 61-8-405(1), MCA; thus, we 
12

conclude that the District Court did not err when it concluded that the offsite supervision 

and direction of the on-call RN satisfied the requirements of § 61-8-405(1), MCA, and 

that the District Court correctly denied Merry’s motion to suppress. 

¶27 II Does the Health Center’s policy unlawfully allow LPNs to conduct 

blood draws without the supervision and direction of a physician or registered 

nurse?

¶28 Merry maintains that the Health Center’s policy added LPNs to the list of 

professionals who are authorized to draw blood without the supervision and direction of a 

physician or RN. Merry contends that such an amendment to § 61-8-405(1), MCA, is 

unlawful.

¶29 We conclude that Merry’s argument is meritless. Montana law, not a health 

facility’s policy, governs the admissibility of a blood sample. To be admissible, a blood 

sample must have been obtained by a physician, RN, or “other qualified person” acting 

under a physician’s or RN’s supervision and direction. Section 61-8-405(1), MCA. As 

discussed under Issue I, Bailey met the statutory requirements, and the District Court did 

not err in denying Merry’s motion to suppress.

¶30 III Do violations of the Health Center’s policy demonstrate that Bailey was 

not an “other qualified person acting under the supervision and direction of a 

physician or registered nurse” as required by § 61-8-405(1), MCA?

¶31 Merry contends that Bailey did not comply with the Health Center’s policy when 

she drew Merry’s blood sample because she did not obtain a written statement, as 
13

required by the policy, from Deputy Speer asserting that Merry was under arrest for DUI 

or that Deputy Speer had probable cause to believe Merry was DUI and had been in an 

accident. Merry claims these failures establish that Bailey was not a “qualified person 

acting under the supervision and direction of a physician or registered nurse” as required 

by § 61-8-405(1), MCA. We decline to address this issue. As discussed in ¶ 29, 

Montana law, not a health facility’s policy, governs the admissibility of a blood sample. 

We determined under Issue I that Bailey drew Merry’s blood in accordance with § 61-8-

405(1), MCA. 

¶32 IV Did the District Court err when it used Merry’s failure to controvert 

his implied consent to support its ruling? 

¶33 The District Court determined that Bailey met the requirements of § 61-8-405(1), 

MCA, when she took Merry’s blood sample. In the final sentence of the order, the 

District Court observed, “[a]lso, [Merry] did not controvert that he consented to the blood 

draw” at the Health Center. Merry contends that the District Court’s order suggests that 

Merry waived the statutory protections of § 61-8-405(1), MCA, based on his implied 

consent. Merry argues that the court’s requirement that he refute his consent as a 

condition to challenging the admissibility of his blood draw is inconsistent with Montana 

law and constitutional guarantees. We determined under Issue I that the District Court 

correctly concluded that Bailey met the statutory requirements of § 61-8-405(1), MCA, 
14

and that the District Court correctly denied Merry’s motion to suppress. Thus, we need 

not address the District Court’s alternative rationale. 

¶34 Affirmed.

/S/ W. WILLIAM LEAPHART

We concur: 

/S/ PATRICIA COTTER

/S/ JOHN WARNER

/S/ BRIAN MORRIS

/S/ JIM RICE

Justice James C. Nelson dissents.

¶35 I agree with ¶¶ 13 and 15 of the Court’s Opinion. However, given the statute’s 

plain language and its sketchy legislative history (Opinion, ¶¶ 17 and 18), I believe that 

the Court misreads § 61-8-405(1), MCA. This statute provides:

Only a physician or registered nurse, or other qualified person acting 

under the supervision and direction of a physician or registered nurse, 

may, at the request of a peace officer, withdraw blood for the purpose of 

determining any measured amount or detected presence of alcohol, drugs, 

or any combination of alcohol and drugs in the person. This limitation does 

not apply to the sampling of breath. [Emphasis added.]

¶36 From what legislative history there is, I believe that the Legislature amended 

§ 61-8-405(1), MCA, in 1981 to accomplish two things. First, the Legislature 

acknowledged that there are any number of persons who are qualified by training and 
15

experience to draw blood. Second, the Legislature, nevertheless, believed that it was still 

necessary to vest in two particular types of professional healthcare providers—physicians 

and registered nurses—the power to decide whether blood should be drawn and, if so, by 

whom. 

¶37 As noted in ¶ 18, the bill’s proponents were desirous of removing challenges to 

blood tests “not performed” by a physician or registered nurse. The DOJ believed that 

“qualified persons, such as laboratory technicians” should be “allowed to take blood 

samples” (emphasis added). Likewise, Senator Mazurek was concerned about the 

limitations on those who could “draw” blood. However, with its main goal to broaden 

the categories of persons who could draw or take blood, the Legislature still required that 

if the blood sample was not physically drawn by the physician or registered nurse, the 

otherwise “qualified person” drawing the sample had to act under the “supervision and 

direction” of a physician or registered nurse. Section 61-8-405(1), MCA.

¶38 With that in mind, I believe that, at a minimum, the “acting under the supervision 

and direction” language of the statute contemplates: (1) that the physician or registered 

nurse actually determine that the blood draw is medically appropriate in terms of there 

being a lawful request, from an authorized person, to perform the test on a proper patient1

(hereafter, I refer to these, collectively, as the medical determinations); and (2) that, 

 

1

I presume that neither this Court nor the Legislature deems a person to be any less 

entitled to appropriate medical determinations, protocols and treatment when undergoing 

a blood draw simply because he or she is drunk.
16

having made these medical determinations, the physician or registered nurse then orders 

the person who he or she deems qualified to actually draw the blood.

¶39 The Court’s interpretation of the statutory language marginalizes the role of the 

physician or registered nurse and the medical determinations that would necessarily be 

made before ordering a blood draw—for DUI purposes or otherwise. The plain language 

of the statute requires that the physician or registered nurse be the person in charge—i.e., 

be acting in a supervisory and directive capacity over the technician. Here, the record is 

clear that LPN Bailey—qualified to draw blood though she may be—was the person in 

charge. It was she who made the medical determinations referred to above. It was she 

who was acting as her own supervisor—utilizing her actual supervisors only in the event 

that “she need[ed] assistance” or when there was a situation she could not “handle.” 

Opinion, ¶ 25. 

¶40 That is not what § 61-8-405(1), MCA, requires. Under the framework of the 

statute, the technical person draws the blood. The physician or registered nurse 

determines if, how, and from whom the blood sample is to be taken. The Court’s 

interpretation of the statute effectively emasculates the function of the physician and 

registered nurse. As here, those decision-making professionals are relegated to pinchhitters if something goes wrong during the draw—people to call if back-up or advice is 

needed or if the situation devolves into something the technician can’t handle. While I 

agree that the statute does not textually address the on-site/off-site issue, it strikes me that 

a healthcare provider is simply asking to be sued if a DUI blood draw goes south, and the 
17

technician—who made the medical determinations at the outset—is left to frantically try 

to locate a physician or registered nurse to bail her or him out.

¶41 Curiously, the Court cites State v. Zakovi, 2005 MT 91, 326 Mont. 475, 110 P.3d 

469, in support of its decision. Rather, Zakovi supports the undersigned’s interpretation 

of the statutory language. In that case, the defendant moved to suppress the blood 

alcohol test on the grounds that the sample was collected in violation of § 61-8-405(1), 

MCA. Zakovi contended that the technician withdrew his blood sample at the request of 

the arresting officer and not pursuant to the supervision or direction of a physician or 

registered nurse. Zakovi, ¶¶ 33-34. We observed in that case that the technician testified 

that she was “continuously under the supervision of a registered nurse on duty in the 

emergency room, as her position is subordinate and requires compliance with the 

registered nurse’s orders under hospital policy.” Zakovi, ¶ 36. Accordingly, we 

concluded that the blood sample was drawn in accordance with the statutory 

requirements. Zakovi, ¶ 36. 

¶42 Unlike Zakovi, the record here is clear that Bailey was not continuously under the 

supervision of a registered nurse on duty in the emergency room, nor did Bailey draw 

Merry’s blood sample in compliance with a registered nurse’s order. Indeed, Bailey was 

in charge of the whole blood-draw operation; she acted on no physician’s or registered 

nurse’s orders; she was neither supervised nor directed by anyone. Bailey’s supervisors 

were simply “on-call” if she needed help, needed advice, or couldn’t handle the situation. 

Zakovi supports the diametrically opposite result than that reached by the Court here.
18

¶43 Under the Court’s interpretation of the statute, the technician is the person actually 

in charge of the entire blood-draw operation. The technician involves the physician or 

registered nurse only in the event of an apparent emergency. That is not what the “acting 

under the supervision and direction” language plainly requires or what the Legislature 

obviously envisioned. From the structure and language of § 61-8-405(1), MCA, the 

Legislature contemplated that the medical determinations referred to above would be 

made at a certain professional level—by a physician or registered nurse—as opposed to 

the technical level at which they were made here, and at which they will be made in 

future cases based on our Opinion. 

¶44 I would hold that Merry’s blood sample was collected in violation of 

§ 61-8-405(1), MCA; I would order that blood sample evidence suppressed; and I would 

reverse and remand for further proceedings

¶45 Accordingly, I dissent.

/S/ JAMES C. NELSON

Chief Justice Karla M. Gray joins in the dissent of Justice James C. Nelson.

/S/ KARLA M. GRAY