Gavin v. State

• Decision Date: 13 April 1992
• Docket Number: No. CR91-182,CR91-182
• Citation: Gavin v. State, 827 S.W.2d 161, 309 Ark. 158 (Ark. 1992)
• Parties: Donald Keith GAVIN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 161

827 S.W.2d 161

309 Ark. 158

Donald Keith GAVIN, Appellant, v. STATE of Arkansas, Appellee.

No. CR91-182.

Supreme Court of Arkansas.

April 13, 1992.

Stephen G. Hough, Fort Smith, for appellant.

Brad Newman, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

Appellant appeals from his conviction of DWI. The trial judge, sitting as the trier of fact, sentenced the appellant to serve twenty-four hours in the county jail, complete an alcohol education course, pay a $250 fine and court costs of $311. In his appeal, the appellant argues that the trial judge erred in admitting the results of his blood alcohol test into evidence because 1) there was no physician present when the blood sample was taken in violation of Ark.Code Ann. § 5-65-204(d); and 2) the sample was not taken pursuant to the Arkansas Regulations for Blood Alcohol Testing, § 3.20. We find no merit in the appellant's arguments, so we affirm.

At about 3:20 a.m., appellant's vehicle was clocked speeding by Officer Squires. The officer followed with his car's blue lights on, and it took the appellant almost one minute before he stopped his vehicle. When the officer approached the appellant's vehicle, he noticed that the appellant smelled strongly of alcohol and that his eyes were red. Appellant admitted to having consumed a couple of beers, and an empty beer can was found in the back of his truck. The officer also testified that the appellant had poor balance when he exited his vehicle. The appellant was given a portable breathalyzer test and was then taken to the police station for further testing. Appellant agreed to submit to a blood alcohol test. Officer Squires took the appellant to Mercy Hospital, and filled out a request form for the blood sample. His blood alcohol level was .16.

First, appellant argues that the trial court erred in admitting his blood alcohol test results into evidence because a doctor was not present when the registered nurse took his blood sample. Appellant argues that the presence of a doctor is necessary under the requirements of Ark.Code Ann. § 5-65-204(d) (Supp.1991), which provides the following:

When a person shall submit to a blood test at the request of a law enforcement officer under the provisions of this section, blood may be drawn by a physician or a person acting under the direction and supervision of a physician.

It is undisputed that, although a doctor was on call, one was not present at the hospital when the registered nurse, Vickie Richmond, took the blood sample at 3:55 a.m. Nurse Richmond testified that the standard hospital policy in taking a blood test is that a registered nurse, doctor, or registered lab person draws the blood. In addition, she stated that it was standard practice to have a doctor on call. Officer Squires witnessed the nurse taking the blood sample.

This is the first time this court has been asked to interpret the phrase "under the direction and supervision of a physician" in § 5-65-204(d). However, other jurisdictions with similar statutes have considered this issue. In People v. Mari, 187 Colo. 85, 528 P.2d 917 (1974), the Colorado Supreme Court addressed an appellant's argument that the results of his blood alcohol test should not have been introduced into evidence because the blood was drawn by a medical technologist and no physician or registered nurse was present at the time the sample was taken. Under Colorado law, a physician, registered nurse, or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse are entitled to withdraw blood for the purpose of determining the blood alcohol content. In upholding that trial court's finding that the medical technologist was a qualified person under the statute, the court stated the following:

We do not read the statute to require on-the-spot supervision of a doctor or registered nurse, on the contrary, if her normal duties as a medical technologist include withdrawing blood samples while she is under the supervision of a physician or registered nurse, she qualifies notwithstanding the fact that supervision was not present at this time. We read the "under supervision" clause as referring to any "normal duties" and not as a requirement that the supervision be present at the time the technician withdraws the blood.

Id. 528 P.2d at 919; see also People v. Jenne, 168 Mich.App. 518, 425 N.W.2d 116 (1988) (court interpreted "under the direction of a licensed physician" not to require personal presence of a physician when a medical technician withdrew blood); People v. O'Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213 (1987) (court held that physician is not required to be actually present, observing the procedure, when the laboratory technician draws blood sample for...