                                           No. 05-312

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 323N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ROBERT DOYLE,

              Defendant and Appellant.



APPEAL FROM:         The District Court of the Sixteenth Judicial District,
                     In and For the County of Garfield, Cause No. DC 04-301,
                     Honorable Gary L. Day, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Roy W. Johnson, Billings, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Tammy K. Plubell,
                     Assistant Attorney General, Helena, Montana

                     Nickolas C. Murnion, County Attorney, Jordan, Montana



                                                        Submitted on Briefs: September 13, 2006

                                                                  Decided: December 7, 2006

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of noncitable

cases issued by this Court.

¶2     Robert Doyle (Doyle) appeals from the ruling of the Sixteenth Judicial District

Court, Garfield County, denying his objection to the introduction of blood test results.

We affirm.

¶3     Doyle was charged with the offense of operating a motor vehicle with an alcohol

concentration of 0.08 or more, in violation of § 61-8-406, MCA. The District Court

conducted a bench trial on April 7, 2005. During Officer Downs’ testimony, Doyle

objected to Downs’ reference to the blood test results, arguing that because the State did

not call the nurse who withdrew the blood to verify that she was indeed a registered

nurse, it had failed to lay a proper foundation. Downs explained that he took Doyle to the

Garfield Community Health Center to have his blood drawn and testified that RN Lillian

Johnson (Nurse Johnson) withdrew the blood from Doyle, and that he observed Nurse

Johnson take Doyle’s blood in accordance with standard operating procedures.

¶4     The District Court concluded Officer Downs’ testimony sufficiently established

the foundational requirements for admitting the blood test results and overruled Doyle’s

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objection. After the State presented its case-in-chief, Doyle changed his plea to guilty,

reserving the right to appeal the court’s ruling. This appeal results therefrom.

¶5     “The determination of the adequacy of foundation for the admission of evidence

is within the discretion of the trial court . . . .” State v. DuBray, 2003 MT 255, ¶ 74, 317

Mont. 377, ¶ 74, 77 P.3d 247, ¶ 74 (citing State v. Christenson, 250 Mont. 351, 359, 820

P.2d 1303, 1308 (1991)). We will not overturn such a determination “absent a clear

abuse of discretion.” DuBray, ¶ 74.

¶6     It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law, including State v.

Decker, 251 Mont. 339, 828 P.2d 1342 (1991), which the District Court correctly

interpreted, and there was clearly no abuse of discretion by the District Court.

¶7     We affirm the judgment of the District Court.


                                                                /S/ JIM RICE

We concur:

/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER




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