State v. Kenneth Merry

August 12 2008
DA 07-0375
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 288STATE 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
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
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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.
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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
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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
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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
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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,
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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
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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,
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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
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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
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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
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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,
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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
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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.
15
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 pinch-
hitters 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
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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.
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¶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
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