Greaves v. North Dakota State Highway Com'r, 880151

• Decision Date: 06 December 1988
• Docket Number: No. 880151,880151
• Parties: Jeffrey Todd GREAVES, Plaintiff and Appellant, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 879

432 N.W.2d 879

Jeffrey Todd GREAVES, Plaintiff and Appellant, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Defendant and Appellee.

Civ. No. 880151.

Supreme Court of North Dakota.

Dec. 6, 1988.

Robert W. Kinsey, Crosby, for plaintiff and appellant.

Myron E. Bothun, Asst. Atty. Gen., Bismarck, for defendant and appellee.

VANDE WALLE, Justice.

This is an appeal from the judgment affirming the State Highway Commissioner's decision to revoke the driver's license of Jeffrey Greaves for violation of Section 39-08-01 of the North Dakota Century Code. Because we conclude that the blood test was inadmissible, we reverse.

On September 27, 1987, Greaves was stopped by Gregory Sinclair of the North Dakota Highway Patrol. Greaves was placed under arrest and taken to the Divide County sheriff's office. While at the sheriff's office, Greaves submitted to two Intoxilyzer tests and one blood-alcohol-content test. The first Intoxilyzer test was administered at 1:02 a.m. and indicated a blood-alcohol content of .091 percent. At 1:09 a.m. Kent Nygaard, a Crosby police officer and emergency medical technician-intermediate (E.M.T.-I.), withdrew a sample of Greaves's blood in order to test for blood-alcohol content. The results of the blood test, which was analyzed by the State Toxicologist's office, indicated that Greaves had a blood-alcohol content of .10 percent. At 1:10 a.m. a second Intoxilyzer test was administered to Greaves and indicated a blood-alcohol content of .095 percent.

At the administrative hearing to revoke Greaves's license, Greaves argued that Nygaard was not qualified under Section 39-20-02, N.D.C.C., ¹ to obtain a blood sample. The Commissioner's decision concluded that Nygaard was a "qualified technician" under the statute and, because of the results of the blood test, revoked Greaves's license for 91 days. Greaves appealed the decision of the Commissioner to the district court and the district court affirmed. On appeal to this court, Greaves argues that Nygaard was not qualified to withdraw blood for blood-alcohol purposes and therefore the results of that test should have been suppressed. ²

An appeal from a district court judgment involving a license suspension under Section 39-20-05, N.D.C.C., is governed by the Administrative Agencies Practice Act, Chapter 28-32, N.D.C.C. See Moser v. North Dakota State Highway Com'r, 369 N.W.2d 650 (N.D.1985). Pursuant to that chapter, we examine the record of the administrative agency rather than the findings of the district court. Our review of an administrative hearing is limited to the following:

(1) Is the decision of the agency in accordance with the law? (2) Is the decision of the agency in violation of the appellant's constitutional rights? (3) Have the provisions of Chapter 28-32 been complied with? (4) Was the appellant given a fair hearing? (5) Are the findings of fact supported by a preponderance of the evidence? (6) Are the conclusions of law sustained by the findings of fact? (7) Is the agency decision supported by the conclusions of law? See Sec. 28-32-19, N.D.C.C. See also Dodds v. North Dakota State Highway Com'r, 354 N.W.2d 165 (N.D.1984).

Greaves argues that Nygaard is not a "qualified technician" as required under Section 39-20-02, N.D.C.C., because The Emergency Medical Technician--Intermediate: National Standard Curriculum [Curriculum] ³ does not address the training of E.M.T.-I.s for the withdrawal of blood. Furthermore, he asserts, even if an E.M.T.-I. may be qualified to withdraw blood, there is no factual basis in the record to indicate that Nygaard was qualified. ⁴

There are obvious reasons for requiring certain qualifications of those authorized to withdraw blood. The health of the individual is paramount. Protection against infection and pain can best be afforded by allowing only a qualified person to administer a blood test. The accuracy of the test also depends in large part upon the ability of the person drawing the blood to be able to obtain a fair sample.

Our Legislature has not defined the term "qualified technician." Other courts have considered whether a person who administered a blood test was qualified to do so. See, e.g., State v. Counts, 457 So.2d 568 (Fla.Dist.Ct.App.1984) [term "physician" encompasses first year resident physician]; State v. Winquist, 247 N.W.2d 256, 259 (Iowa 1976) ["The question is one of training in withdrawal of blood. The test to determine whether a person holding himself out as a medical technologist is a medical technologist within the meaning of [the statute] is whether a satisfactory showing can be made that he has sufficient training in the withdrawal of blood to accomplish the legislative objectives of protecting the individual's health, guarding against infection and pain, and assuring the accuracy of the test, all in accordance with accepted medical standards. The concern is with the competence of the person withdrawing the blood rather than with an occupational label he may have been awarded by a private association."]; State v. Carter, 446 P.2d 759, 202 Kan. 63 (1968) [resident doctor who was a foreign medical school graduate was a "qualified technician"]; State v. Taylor, 483 So.2d 250 (La.Ct.App.1986) [police officer who had emergency medical training through police department which included drawing of blood, had attended five weeks of classes in phlebotomy at a local technical institute and was a certified phlebotomist was a "qualified technician"]; State v. Welch, 468 So.2d 599 (La.Ct.App.1985) [the court found that a cardiopulmonary profusionist who had specialized training, was supervised by a pathologist, had taken 60,000 blood drawings, and had testified 40-50 times in court was a "qualified technician" under the law]; State v. Webster, --- Nev. ----, ----, 726 P.2d 831, 833 (1986) ["We are particularly concerned with the burdens which would be imposed on small, rural health care facilities if 'technician' is construed [too narrowly."] What the spirit of the law requires is that a "medically trained and competent individual withdraw the blood sample in an acceptable manner." Thus the court remanded in order to have the trial court determine if the laboratory assistant was competent to withdraw blood.] McGuire v. State, 504 P.2d 1247 (Okla.1972) [nurse had 28 months of training which included the taking of blood samples; court said person with this training and experience would fall under the term "qualified technician" and the court noted that she took the sample at the direction of a doctor].

Our Legislature has, however, prescribed the circumstances in which an E.M.T.-I. is authorized to function. Section 43-17-02(10), N.D.C.C., provides:

"The provisions of this chapter [regulating physicians and surgeons] shall not apply to the following:

"10. Any person rendering services as a physician's trained assistant, if such service is rendered under the supervision, control,...