People v. Mari

• Decision Date: 02 December 1974
• Docket Number: No. 26289,26289
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Frank MARI, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 917

528 P.2d 917

187 Colo. 85

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Frank MARI, Defendant-Appellant.

No. 26289.

Supreme Court of Colorado, En Banc.

Dec. 2, 1974.

John P. Moore, Atty. Gen., John P. Bush, Deputy Atty. Gen., Patricia W. Robb, Asst. Atty. Gen., Denver, for plaintiff-appellee.

C. H. Anderson, Brush, for defendant-appellant.

PRINGLE, Chief Justice.

Defendant was arrested in Logan County, and charged with violating 1967 Perm.Supp., C.R.S. 1963, 13--5--30, which prohibits driving while under the influence of intoxicating liquor. He was taken to the sheriff's office where he submitted to a blood-alcohol test administered by Iris Lambert, a medical technologist. Neither a physician, nor a registered nurse was present at the time the blood was extracted.

At trial, in Logan County Court, Mrs. Lambert's testimony as to the analysis of the blood sample for its alcoholic content was introduced into evidence over objection of the defense counsel. She testified that the defendant's blood sample contained .275 per cent of alcohol by weight. The court found the defendant guilty of driving while under the influence of alcohol, and on appeal, the District Court for Logan County affirmed. Appeal from the district court judgment was taken to the Colorado Court of Appeals. Upon application this Court accepted jurisdiction. For the reasons set forth herein, we affirm.

Defendant contends that the trial judge improperly admitted the testimony of Iris Lambert concerning the results of the blood-alcohol test in that she did not qualify under section 13--5--30(3)(b) as one entitled to withdraw blood for the purpose of administering the test. He further argues that even if Mrs. Lambert was a qualified person under the statute, the withdrawal of his blood under the circumstances constituted an unreasonable search of his person, thereby violating his rights as protected by the Fourth Amendment to the United States Constitution, and Article II, § 7 of the Colorado Constitution. We do not agree with either contention.

I.

First, the defendant contends that the medical technologist, Iris Lambert, was not qualified to 'withdraw blood for the purpose of determining the alcoholic content therein.' 1967 Perm.Supp., C.R.S. 13--5--30(3)(b). That statute states:

'The test shall be administered at the direction of the arresting officer if he has reasonable grounds to believe such person was driving a motor vehicle while under the influence of intoxicating liquor, and in accordance with rules and regulations prescribed by the state board of public health, and with utmost respect for the constitutional rights, dignity of person, and health of the person being tested. The arresting officer may not take a blood sample, and no person except a physician, registered nurse, Or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall be entitled to withdraw blood for the purpose of determining the alcoholic content therein.'

It is upon the emphasized portion of the statute that the People claim Mrs. Lambert's qualification. The defendant, on the other hand, asserts that because Mrs. Lambert was not, at the moment she withdrew defendant's blood, acting under the supervision of a doctor or registered nurse, she did not come within the class of persons qualified by the...