                               No.    91-284

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1991



STATE OF MONTANA,
                Plaintiff and Respondent,
     -VS-

BETH DECKER,
                Defendant and Appellant.




APPEAL FROM:    District Court of the Tenth Judicial District,
                In and for the County of Fergus,
                The Honorable Peter L. Rapkoch, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Lawrence A. LaFountain, Lewistown, Montana
            For Respondent:
                 Hon. Marc Racicot, Attorney General; Deanne L.
                 Sandholm, Asst. Atty. General, Helena, Montana
                 Thomas P. Meissner, County Attorney, Lewistown,
                 Montana and Monte J. Boettger, Lewistown, Montana




                              Submitted on Briefs:   September 12, 1991
                                            Decided: November 25, 1991
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.


     Defendant and appellant, Beth Decker, was convicted of driving
under the influence in the Tenth Judicial District, Fergus County,
Montana.    Beth Decker appeals and we affirm.
     The sole issue before this Court is whether the District Court
erred in allowing into evidence testimony of a forensic scientist
regarding the appellant's blood alcohol content.
     On April 12, 1990, after being notified via radio of a single
car accident in Lewistown, Montana, Officer Moring of the Lewistown
Police Department arrived at the scene and found the appellant Beth
Decker.    She admitted to being the driver of the car. As a result
of the accident she received a split lip which needed medical
attention.     The officer took her to the police station since she
initially refused medical attention, so she could see the injury.
After viewing the injury, the appellant changed her mind and desired
medical treatment. While at the police station the officer procured
the necessary paper work for a blood withdrawal since there was
evidence of a possible D U I ; he perceived the smell of alcohol on
the appellant and in the car.    He transported the appellant to the
hospital and upon arrival the nurse on duty summoned the emergency
room doctor.    The officer observed the doctor's activity and then
properly administered the implied consent form.     Subsequently, the
officer presented the blood test request form to the nurse and remained
while the nurse: drew the appellant's blood, correctly sealed the
sample, and initialed the seal. The officer took possession of the

                                  2
sample and sent it to the Missoula Crime Lab via certified mail with
a completed "alcohol analysis request form" enclosed. The results
of the blood analysis revealed a blood alcohol content level higher
than the legal limit.
     Procedural safeguards for drawing blood for the purpose of
determining alcohol content are set forth in 5 61-8-404(1) (b)(iii),
MCA (1989), which states that "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 61-8-405 (1), MCA (1989), provides that:
"Only a physician or registered nurse or other qualified person
under the supervision and direction of a physician or registered
nurse acting at the request of a peace officer may withdraw blood
for the purpose of determining alcoholic content."
     The issue on appeal revolves around whether "D. Hartman," the
hospital personnel who withdrew the appellant's blood, was identifiable
as a person qualified to do so.
     A similar situation arose in Wyoming.       Joelson v. State (Wyo.
1984), 674 P.2d 229.     In Joelson, the appellant argued that no
evidence was introduced that the blood was taken by a registered
nurse, physician or other qualified personnel. The nurse inJoelson
properly collected the blood sample and completed paperwork which
included her designation as an RN.     The Wyoming court reasonedthat
     The letters F W , placed in the space provided for altitle,ll
     are defined as "1) registered nurse 2) Royal Navy," Webster's
     New Collegiate Dictionary (G.& C. Merriam Co. 1979). We
     do not believe that Theresa Hansen was indicating that
     she was a member of the Royal Navy    . .
                                            . [she] was working
     in the emergency room of the Campbell County Memorial
     Hospital, and as it is generally recognizedbythemajority

                                   3
     of the people that the initials RN are an abbreviation
     for registered nurse, we hold that the trier of fact could
     believe from all the evidence that Theresa Hansen was a
     registered nurse.
Joelson, 6 7 4 P.2d at 231.
     The Wyoming court admitted the blood test results into evidence
and stated that "the appellant introduced nothing to impeach or
contradict this evidence."    Joelson, 6 7 4 P.2d at 232.
     The situation in the case at bar is similar.           The record
indicates that the officer took the appellant to the hospital where
they were greeted by a nurse.    The nurse summoned the doctor and
after an examination of the appellant's injury a blood sample was
obtained by the nurse.     Proper documentation and paper work were
completed. At trial, two forms were admitted into evidence without
objection. First, the blood test request form which indicated the
nurse's name as follows:
              D. Hartman
     (Physician, Registered Nurse, etc.)
Second, the alcohol analysis request appeared as follows:
               Hartman
        (Physician, Nurse, Med. Tech)
     In Joelson, the Wyoming appellant made no objection to State's
exhibits (which are the equivalent of Montana's blood test and alcohol
analysis forms) and the Wyoming court properly admitted them into
evidence under their Rule of Evidence 803(6) "Records of regularly
conducted activity."    The Wyoming court stated that "the material
contained in the exhibits could be accepted as true or false by the
trier of fact."   Joelson, 674 P.2d at 231.


                                  4
     We approve and adopt the Wyoming Court's reasoning as it applies
to the case at bar.     The trier of fact is in the best position to
examine the evidence and observe the witnesses. Here, the District
Court chose to believe the information in the forms regarding the
nurse and her qualifications, along with other evidence that she
was a "qualified person" under Montana law. The forms were properly
admitted into evidence.
     The record reflects the District Court's consideration of the
qualification issue as follows:
     Court: I think there's sufficient case made here for
     the qualification of the nurse. She is in the emergency
     room, she's not just an LPN, or at least her drawing, the
     act of drawing the blood shows that she would not be simply
     an LPN but wouldbe a qualified person in the circumstances
     to do this, so I'll overrule the objection.
     Appellant cites our opinion in State v. McDonald as authority
for her position. State v. McDonald (1985), 215 Mont. 340, 697 P.2d
1328.    We do not believe that the case at bar is similar since, in
the instant case, the name of the person drawing the blood appeared
on two separate forms that were properly admitted into evidence.
In McDonald, the name of the person who took the blood sample did
not appear on any forms.      The only identification of that person
was by the arresting officer. We held that his testimony about the
person who took the blood sample was hearsay since he merely recalled
that she had a name tag that said she was a nurse.      McDonald, 215
Mont. at 346, 697 P.2d at 1331.
        We take this opportunity to note that the Administrative Rules
cited in McDonald have been repealed. Even so, the language is not


                                   5
inconsistent with our holding in the instant case.
     [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 5 61-8-404, MCA, which
     incorporates the ARM:   (1) the laboratory analysis must
     be done in a laboratory qualified under the rules of the
     Department; (2) the report must be prepared in accordance
     with the rules of the Department; and (3), if a blood
     sampling, the person withdrawing the blood must be
     demonstrably aualified to do so. [Emphasis added.]
McDonald, 215 Mont. at 346, 697 P.2d at 1331-32.
     Even under this standard we still find that "D. Hartman," the
person who drew the appellant's blood, was demonstrably qualified
to do so.
     Further, we believe the legislature intended to provide a
safe, sanitary and controlled method of obtaining blood samples.
Historical statutory revisions indicate a desire to protect citizens
from being subjected to blood drawn from, for instance, a police
officer in the field without proper implements or sterilization
techniques.
     There is substantial evidence to support the fact that there
was both a nurse and doctor present at the hospital, the officer
properly requested the blood sample, it was properly taken and its
results indicated a criminal level of alcohol.     We hold that the
nurse was qualified to take the blood sample and therefore the
testimony of the forensic scientist was properly admitted into
evidence.     Accordingly, we affirm the District Court's admission
of the testimony of the forensic scientist and uphold the conviction



                                  6
of B e t h D e c k e r .
        Affinned.




W e concur:                1




                               7
             Justice Terry N. Trieweiler dissenting.
                       I dissent from the opinion of the majority.   The requirement
             that a person drawing blood possess certain qualifications before
             that blood can reliably be used as evidence of a motorist's
             intoxication is not an inconsequential requirement.
                       The procedures that must necessarily be followed to assure
             that blood is a reliable indicator of a person's blood alcohol
             content are technical and demanding. This is evident from previous
             rules established by the Department of Justice, and from our prior
             case law.
                       In 1978, the Department of Justice enacted 5 23.3.931, ARM,
             which set forth the following specific requirements for the
             withdrawal of blood:
                       (1) Blood   samples may be collected from living
                       individuals only by 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 as a skin
                       antiseptic.
                        ....
                       ( 3 ) At least five milliliters    of blood   should be
                       collected for analysis.

                       (4) The blood sample must be deposited into a clean dry
                       container, containing a solid anti-coagulant and
                       preservative. The container should then be capped or
                       stoppered and sealed in a mailing container with at least
                       the following information:
                       (a) Name of suspect;
                       (b) Date, time and site . . . of collection; and
                       (c) Name or initials of persons collecting and/or
                       sealing sample.

                                                  8




~,~   ..,,   .   ...
    ( 5 ) Sodium fluoride or its equivalent must be used as a
    preservative.    Sodium citrate or potassium 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.
    If other additives are employed, the name of the additive
    and its quantity should be listed.
    (6) When possible, the officer requesting blood sampling
    shall 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.
    The purpose of these procedural requirements is to assure the
reliability of blood drawn for the purpose of proving a person's
intoxication.     In State v. McDorinld (l985), 215 Mont. 340, 697 P.2d

1328, we considered the procedure, as well as the qualifications of

the person withdrawing the blood, to be so important that we
reversed that defendant's conviction where both had not been
proven.
     In McDonald, defendant was taken to the hospital where blood

was drawn by an employee specifically identified with a tag that
said "Registered Nurse."     The officer who was present at the blood
drawing identified the person who drew the blood as a nurse, but
was unable to provide further information about her identity or
qualifications.    The defendant in that case, like the defendant in
this case, objected to the introduction of the crime lab's blood
analysis on the grounds that insufficient foundation had been laid
to establish that it had been drawn by a qualified person in a
procedurally correct manner.     We agreed, and in doing so relied on


                                   9
5 61-8-404, MCA, which requires that "the person withdrawing the
blood must have been competent to do so under 5 61-8-405(1)                      .I'


After citing the aforementioned departmental rules for withdrawal
of blood, we also discussed the importance of the qualifications of
the person withdrawing the blood.            We held as follows:
     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
     5 61-8-404, MCA, which incorporates the ARM: (1) the
     laboratory analysis must be done in a laboratory
     qualified under the rules of the Department: (2) the
     report must be prepared in accordance with the rules of
     the Department: and ( 3 ) , if n blood snmpliitg, the person withdrawiizg
     rlie blood musl be demoiistrnbly qualified to do so. [Emphasis added. ]

McDoiinld, 697 P.2d at 1331-32.

     It is true that in 1988, prior to the date of the defendant's
conduct which is complained of in this case, the departmental rules
establishing the procedure for withdrawing blood were repealed.
However, the repeal of those administrative safeguards did not
eliminate the requirements of 5 5 61-8-404 and -405(1), MCA.                     If
anything, the elimination of other procedural safeguards made the
qualifications of the person withdrawing the blood even more
important.
     The requirements of 5 61-8-405(1), MCA (which we previously
held were a foundational requirement), are very specific. Pursuant
to that section:
     Only a physician or registered nurse or other qualified
     person under the supervision and direction of a physician

                                        10
     or registered nurse acting at the request of a peace
     officer may withdraw blood for the purpose of determining
     any measured amount or detected presence of alcohol in
     the person.
     There was absolutely no evidence in this case that the person
who withdrew blood from the defendant was a physician, registered
nurse, or "other qualified person under the supervision and
directionnf a physician or nurse.
           of
     The majority states that after arriving at the hospital "the
officer presented the blood test request form to the nurse and
remained while the nurse drew the appellant's blood      . . . .   I,



However, there was no testimony by the person who drew the blood to
the effect that she was a nurse of any kind.     Nor was there any
effort to lay any foundation for her qualifications through the
officer who presented the form to her.   The majority states that:
     Here, the District Court chose to believe the information
     in the forms regarding the nurse and her qualifications,
     along with other evidence that she was a "qualified
     person" under Montana law.
     This observation makes no sense because there was nothing in
the form for the District Court to believe or disbelieve regarding
the "nurse's" qualifications.   The form simply bore her signature
on a line under which it stated (Physician, Registered Nurse,
etc.).   There is no further indication on the form whether she was
a physician, registered nurse, or an etcetera.      If she was an
etcetera, there is no indication whether she was a lab technician,
x-ray technician, practical nurse, nurse's aid, hospital volunteer,
or passerby.   Nor was there any "other evidence" as referred to by
the majority.    The only two witnesses who testified at trial were
Thomas Moring, the Highway Patrolman who arrested the defendant,
and Lynn Kurtz, the forensic scientist from the State Crime Lab in
Missoula.   Neither were asked for, nor gave any information about
the "nurse's" background, title, experience, other qualifications,
or the color of her uniform.               Neither identified her as a
registered nurse as opposed to a licensed practical nurse.            The
mere fact that Officer Moring presumed she was a nurse at all was
the kind of speculation that we specifically prohibited in McDonald.

At least in McDoizald, the person who was presumed to have been a

registered nurse had a tag that said "Registered Nurse."               We
concluded, however, that even that was insufficient. In this case,
there is no indication that the person who withdrew the defendant's
blood had any such identification.
      The majority relies on the Wyoming Supreme Court's decision in
Joelsoii v. State (Wyo. 1984), 674 P.2d   229.   However, that case is not

in point.   The person who withdrew the blood from the defendant in
that case filled out the appropriate paperwork and identified
herself as an RN. The paperwork in which she identified herself in
that manner was admitted at trial without objection.           That court,
therefore, held that the statutory requirement that blood be
withdrawn by a registered nurse had been satisfied.               No such
identification was provided by D. Hartman on any form that she
filled out in this case.       Therefore, the Wyoming court's remarks

                                     12
which are cited by the majority in this case are completely
irrelevant to the facts here.
       It   is not a          significant burden   on   the many    qualified
prosecutors in this state to require that they prove that the
person who drew blood from a defendant was a doctor, registered
nurse,      or   some    other    qualified   person    acting   under    their
supervision.       The majority's inference to the contrary ignores
common practice in our district courts.
       It is strange that yesterday's foundational requirements
become so quickly insignificant upon reconsideration.
       The effect        of    today's majority    decision   is to      totally
eliminate the statutorily imposed requirements of 5 5                 61-8-404

and   -405(2),    MCA.        From this day forward, intoxication can be
proven with blood samples drawn by an etcetera.




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                                       November 25, 1991

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Lawrence A. LaFountain
Attorney at Law
P.O. Box 548
Lewistown. MT 59501

Hon. Marc Racicot, Attorney General
Deanne Sandholm, Asst. Atty. Gen.
Justice Building
Helena, MT 59620

Thomas P. Meissner
Fergus County Attorney
Suite A, 701 E. Main
Lewistown. MT 59457

Monte J. Boettger
Attorney at Law
305 W. Watson St.
Lewistown, MT 59457

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
