State v. Newill

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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