97-043




                                                                                  No. 97-043

                                                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                  1997



                                                                    STATE OF MONTANA,

                                                                      Plaintiff and Respondent,

                                                                                         v.

                                                                MICHELLE RENE NEWILL,

                                                                       Defendant and Appellant.




                     APPEAL FROM:                   District Court of the Fourth Judicial District,
                                                           In and for the County of Missoula,
                                                     The Honorable John S. Henson, Judge presiding.


                                                                   COUNSEL OF RECORD:

                                                                                  For Appellant:

                                             Morgan M. Modine; Modine & Thompson, Missoula, Montana

                                                                               For Respondent :

                                                 Hon. Joseph P. Mazurek, Attorney General
                                       Jennifer Anders, Assistant Attorney General, Helena, Montana

                                      Robert L. "Dusty" Deschamps, III, Missoula County Attorney,
                                    Betty Wing, Deputy Missoula County Attorney, Missoula, Montana




                                                                               Submitted on Briefs: September 11, 1997

                                                                               Decided:                October 10, 1997
                                                                               Filed:


                                                         __________________________________________
                                                                     Clerk

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



          Michelle Newill (Newill), appeals from the decision of the Fourth Judicial
                                           District
Court, Missoula County, denying Newill's motion to suppress evidence. Newill asserts
    that hospital records regarding her blood alcohol content (BAC) should have been
 suppressed by the District Court because the blood samples used to determine her BAC
   were not taken in accordance with     61-8-402, MCA, (implied consent statute). The
  District Court held that the blood test conducted by the hospital falls within the
                                             "other
      competent evidence" inclusion of      61-8-404(3), MCA, and denied the motion to
                                   suppress. We affirm.
                                                    Issue Presented
         Did the District Court err in denying Newill's motion to suppress evidence by
 holding that the results of a medical blood test used to determine Newill's BAC fall
                within "other competent evidence" under     61-8-404(3), MCA?
                                                        Background
          Newill suffered severe injuries in a motor vehicle accident on January 24,
                                              1996.
   At the scene of the accident, emergency response unit personnel found an empty beer
 can in Newill's lap and smelled alcohol on her breath. After extracting Newill from
                                                her
vehicle, emergency personnel transported her to St. Patrick Hospital for treatment.
                                                 At
   the hospital, laboratory technician, Martin Guthrie (Guthrie), was directed by the
    attending physician to take a blood sample for medical diagnostic and treatment
                                          purposes.
  In addition, the hospital tested Newill's BAC, as is normal hospital procedure when
     physicians believe alcohol is involved. The hospital records, showing the BAC
                                         results of
      Newill's blood sample, indicated that her BAC was 0.2050, well over the 0.10
                                          statutory
                        threshold for an inference of intoxication.
       During questioning at the hospital, Newill admitted to the interviewing officer
                                               that
   she had been drinking. She also gave the officer permission to the have a blood
                                             sample
 taken for determining her BAC. However, after four attempts, the nurse directed by
                                                the
officer to take the blood was not able to obtain a sample, so the officer decided to
                                              cease
                                   any further attempts.
       The officer investigating the accident cited Newill for violation of      61-8-401,
    MCA, driving under the influence of alcohol. Newill appeared in Missoula County
                                            Justice
       Court and entered a plea of not guilty. The State of Montana obtained an
                                       investigative
  subpoena ordering St. Patrick Hospital to produce Newill's emergency room records,
    including the analysis of all blood samples. (We note that this Court recently


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                                         determined
  that medical records are protected under the right of privacy guarantee of Article
                                             II,
Section 10 of the Montana Constitution and therefore are only discoverable through an
    investigative subpoena upon a showing of a compelling state interest. State v.
                                           Nelson
   (Mont. 1997), 941 P.2d 441, 448-49, 54 St.Rep. 576, 580-81. The right of privacy
 issue, however, has not been raised in the context of this appeal.) Newill filed a
                                           motion
     to suppress the hospital records containing the BAC results asserting that the
                                        records did
 not comport with the foundational requirements of the implied consent statute. The
     Justice of the Peace granted the motion to suppress, and the State of Montana
                                          appealed
    to the District Court for a trial de novo. Again, Newill moved to suppress the
                                          hospital
 records. As a result, the parties briefed the evidentiary issue, and the District
                                         Court held
                                  a suppression hearing.
       At the hearing, Guthrie testified that he used standard hospital procedure when
                                             he
  drew Newill's blood and that the sample was analyzed by state-of-the-art equipment
    which is tested for quality control every 24 hours. He also testified that the
                                          computer
    printout containing the results of the blood test is a record that the hospital
                                       keeps in the
normal course of business. The District Court denied Newill's motion to suppress the
    hospital record of her BAC. Newill then entered into a plea agreement with the
                                          State of
Montana whereby Newill agreed to enter an "Alford" plea to a violation of      61-8-406,
 MCA, driving with a blood alcohol level of 0.10 or more. Newill reserved her right
                                              to
 appeal the District Court's denial of her motion to suppress and the District Court
                                           stayed
            execution of Newill's sentence pending the outcome of this appeal.
                                                 Standard of Review
        The standard of review of a district court's denial of a motion to suppress is
   whether the court's findings were clearly erroneous and whether the findings were
 correctly applied as a matter of law. State v. Siegal (Mont. 1997), 934 P.2d 176,
                                            180,
                                 54 St.Rep. 158, 160-61.
                                                       Discussion
       Newill contends that the District Court erred in denying her motion to suppress
because the blood test results admitted into evidence were not obtained in compliance
 with Montana law. Specifically, the implied consent statute requires that testing
                                            of a
person's blood be administered at the direction of a peace officer who has reasonable
   grounds to believe the person has been driving under the influence of alcohol.
                                          Section
    61-8-402, MCA. In addition,      61-8-404(1)(b)(ii), MCA, allows a report of the
                                          results
  of any test of a person's blood into evidence if the test is conducted by a person

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      competent to withdraw the blood. Finally,       61-8-405, MCA (1995), states the
 competency requirements: "[o]nly 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 any
  measured amount or detected presence of alcohol in the person." Relying on these
 statutory provisions, Newill contends that the blood samples taken by the hospital
                                              for
medical purposes, and not at the behest of a peace officer, should not be admitted as
evidence of her BAC. The State of Montana asserts that since the blood samples were
  taken for medical treatment and diagnostic purposes, the tests do not need to be
                                          conducted
              in accordance with the criteria of the implied consent statute.
          This Court has not had an opportunity to determine the applicability of the
                                            implied
 consent statute criteria to blood samples drawn for medical reasons rather than at
                                              the
     request of a peace officer. The West Virginia Supreme Court of Appeals (West
                                           Virginia
 court) decided a similar issue under almost identical facts in State ex rel. Allen
                                          v. Bedell
   (W.Va. 1994), 454 S.E.2d 77. In Bedell, the state offered results of a medical
                                         diagnostic
 blood test as evidence of Petitioner's, BAC. Like Newill, the Petitioner in Bedell
claimed that the blood sample, taken for treatment and diagnostic purposes, should be
 suppressed because it was not taken in accordance with West Virginia statutory law.
    Bedell, 454 S.E.2d at 78. West Virginia, like Montana, has an implied consent
                                            statute
   that provides a method for taking blood samples for purposes of determining BAC.
   However, the West Virginia court determined that the requirements of the implied
consent statute had no application to the diagnostic blood test and did not serve as
                                               a
prohibition to its admissibility. Bedell, 454 S.E.2d at 80. The West Virginia court
       reasoned that the legislature's specific inclusion of authorization for law
                                       enforcement to
         direct blood tests to be taken "does not intimate a legislative intent to
                                       disallow . . .
        evidence of alcohol content obtained by medical personnel in the course of
                                        treatment."
 Bedell, 454 S.E.2d at 79. We agree with the reasoning of the West Virginia court in
Bedell. The fact that the Montana legislature has imposed specific requirements for
                                              the
    taking of blood samples at the request of law enforcement, does not mean blood
                                            samples
     drawn for medical reasons must comply with the same criteria or be excluded as
                                          evidence.
       Moreover, the Montana legislature, in addition to specifically providing methods
by which law enforcement can obtain evidence of the BAC of an individual suspected of
     driving while under the influence of alcohol, also provided broad evidentiary
                                         provisions
        for other evidence. For example      61-8-404, MCA (1995), which controls the
 admissibility of evidence in a prosecution for driving under the influence provides

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                                                at
(1)(a), "evidence of any measured amount or detected presence of alcohol or drugs in
                                               the
person at the time of the act alleged, as shown by an analysis of the person's blood,
  breath, or urine, is admissible." Furthermore, subsection (3) states that "[t]he
                                         provisions
  of this part do not limit the introduction of any other competent evidence bearing
                                             on the
 question of whether the person was under the influence of alcohol . . . ." Section
                                              46-8-
       404(3), MCA (1995). We determine that the criteria for admissibility under
                                         subsection
  (1)(b), relating to blood tests administered under the implied consent statute, do
                                          not apply
      to diagnostic blood tests taken by a hospital or treating physician. Rather,
                                        subsections
                (1)(a) and (3) allow the admission of such medical evidence.
          Having determined that the foundational requirements of the implied consent
                                            statute
     did not apply, the only issue remaining for the District Court was whether the
                                            medical
        blood test taken at the hospital was "competent" evidence for purposes of
                                       admissibility
 under     61-4-404(3), MCA. Guthrie demonstrated his competency to withdraw the blood
   sample. He testified that he is a registered medical laboratory technologist and
                                          his skill
     at taking blood samples surpasses that of an average emergency room nurse. In
                                          addition,
Guthrie testified that the testing equipment at St. Patrick Hospital is state-of-the-
                                            art and
 a quality control check is performed on the equipment every 24 hours. Furthermore,
                                               St.
  Patrick Hospital's lab testing standards regarding variation exceed the standards
                                            imposed
                             by the State Department of Health.
             The only discrepancy in the hospital records regarded the time of the
                                       collection of
   Newill's blood. The hospital records noted the time of collection as 1:00 a.m.
                                           However,
it is uncontroverted that Newill was still in transit to the hospital at that time.
                                            Guthrie
 explained that he was called to the emergency room at 1:05 a.m. and arrived at 1:10
                                              a.m.
He testified that all blood drawing procedures were accomplished at one time, and did
        not exceed a fifteen minute period. Guthrie explained that the 1:00 a.m.
                                      designation was
    likely a typographical error. The District Court found that the discrepancy was
 adequately explained by Guthrie and concluded that the typographical error did not
                                             effect
 the competency of the hospital record. We conclude that the blood test taken at the
     direction of the treating physician was admissible as other competent evidence
                                         bearing on

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whether Newill was under the influence of alcohol. Therefore, the District Court
                                     did not
              err in denying Newill's motion to suppress. Affirmed.

                                                                                                 /S/        W. WILLIAM LEAPHART


                                                                           We concur:

                                                               /S/ KARLA M. GRAY
                                                                /S/ JIM REGNIER
                                                              /S/ JAMES C. NELSON
                                                            /S/ WILLIAM E. HUNT, SR.




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