State ex rel. Pennartz v. Olcavage

• Decision Date: 30 August 2001
• Docket Number: No. 1 CA-SA 01-0130.,1 CA-SA 01-0130.
• Citation: 200 Ariz. 582,30 P.3d 649
• Parties: STATE of Arizona ex rel. David A.PENNARTZ, Scottsdale City Attorney, Petitioner, v. The Honorable Joseph OLCAVAGE, Judge of the Scottsdale City Court, Respondent Judge, Gerald J. Adair, Stacy M. Aeed, Ryan Bettes, Scott T. Castle, India E. Franks, Danielle Larkin, Carolyn S. Porter, Randall C. Urbom, Real Party in Interest.
• Court: Arizona Court of Appeals

30 P.3d 649

200 Ariz. 582

STATE of Arizona ex rel. David A.PENNARTZ, Scottsdale City Attorney, Petitioner, v. The Honorable Joseph OLCAVAGE, Judge of the Scottsdale City Court, Respondent Judge, Gerald J. Adair, Stacy M. Aeed, Ryan Bettes, Scott T. Castle, India E. Franks, Danielle Larkin, Carolyn S. Porter, Randall C. Urbom, Real Party in Interest.

No. -0130.

Court of Appeals of Arizona, Division 1, Department B.

August 30, 2001.

David A. Pennartz, Scottsdale City Attorney, By Carrie Cole and Roric Massey, Assistant City Prosecutors, Attorneys for Petitioner.

Law Office of David M. Cantor, By Michael A. Burkhart, Tempe, Attorneys for Real Parties in Interest Adair and Bettes.

Law Office of Greg Clark, By Greg Clark, Phoenix, Attorneys for Real Parties in Interest Castle, Franks, and Urbom.

OPINION

RYAN, Judge.

¶ 1 In this special action, we are asked to decide whether persons who have received specific training in phlebotomy,¹ who are certified in phlebotomy by two national certification agencies, and who have performed numerous blood draws are legally "qualified" to perform blood draws for purposes of determining the alcohol concentration or drug content in a suspect's blood under Arizona Revised Statutes ("A.R.S.") section 28-1388(A) (Supp.2000). A Scottsdale City Court judge ruled that phlebotomists were not qualified persons under the statute unless they drew blood under the supervision of a licensed medical professional.

¶ 2 We accept jurisdiction and hold that, under the circumstances of these cases, the phlebotomists here are "qualified person[s]" within the meaning of section 28-1388(A) and may perform blood draws for forensic purposes under section 28-1388(A) without the supervision of a licensed medical professional. Thus, we grant relief on the State's petition.

BACKGROUND

¶ 3 Respondents were all arrested and charged with Driving Under the Influence in violation of A.R.S. § 28-1381(A)(1),(2) (1998). In each case, one of two phlebotomists under contract with the City of Scottsdale drew the suspect's blood at a jail, police station, or command post. Each blood sample yielded test results of a blood alcohol concentration that exceeded the legal limit. See A.R.S. § 28-1381(A)(2).

¶ 4 In Scottsdale City Court, Respondents each moved to suppress the blood test results, arguing that phlebotomists are not "qualified persons" who may legally draw blood under section 28-1388(A). The motions were consolidated for hearing. For purposes of the consolidated motions, the parties stipulated that, in each case, the phlebotomist drew blood in a manner acceptable in the field of phlebotomy. The parties further stipulated that the phlebotomists had completed specific training in phlebotomy, were certified in phlebotomy by the American Society of Phlebotomy Technicians and by American Medical Technologists, and had performed thousands of blood draws in their careers as phlebotomists. The parties also stipulated that the phlebotomists would testify that they had been trained in emergency procedures relevant to drawing blood; that they are not medical assistants, nor do they use that title; that in the medical field, a phlebotomist and a medical assistant are not the same occupation; and that, in Arizona, there is no state licensing of phlebotomists.

¶ 5 At the hearing on the motion to suppress, the State elicited testimony from Anthony Robert Ballew, a registered nurse and nurse practitioner. Ballew testified that medical assistants may or may not be trained in phlebotomy. He also testified that while phlebotomists have to be certified in hospitals and clinical settings, they do not have to be certified for forensic alcohol analysis in criminal settings. Ballew opined that phlebotomy is not surgery, that a blood draw for determining blood alcohol content is not a diagnostic test, and that the statutes regarding the necessity of supervision in drawing blood do not apply in criminal forensic settings.

¶ 6 In a subsequent written disposition, the city court granted the consolidated motion to suppress. Relying on statutory provisions requiring direct supervision of medical assistants who take body fluids, see A.R.S. §§ 32-1456(A), 32-1401(16) and (8) (Supp.2000),² the court concluded that "when the Legislature talks about a `qualified person' they [sic] are referring to an individual who is directly supervised by a doctor, physician's assistant or registered nurse." Because the phlebotomists in these cases were not directly supervised by a doctor, physician's assistant, or registered nurse when they drew the Respondents' blood, the court held that they were not persons "qualified" under section 28-1388(A) to draw blood.

¶ 7 The State filed a motion to dismiss without prejudice in order to appeal the court's ruling on the motion to suppress under A.R.S. § 13-4032(6) (Supp.2000). The State then appealed the ruling to the superior court and simultaneously filed a special action petition in this court under Rule 7(b) of the Arizona Rules of Procedure for Special Actions. In an appendix to its petition, the State included a number of decisions from various municipal and superior courts, and one memorandum decision from this court, that have reached inconsistent conclusions on this issue.

JURISDICTION

¶ 8 Special action jurisdiction is appropriate when there is no equally plain, speedy, and adequate remedy by way of appeal. Ariz. R.P. Spec. Act. 1(a). The decision to accept jurisdiction is largely discretionary with the court. See State v. Superior Court (Martinez), 186 Ariz. 218, 219-20, 920 P.2d 784, 785-86 (App.1996)

(citation omitted). Special action jurisdiction is more likely to be accepted in cases involving a matter of first impression, statewide significance, or pure questions of law. See State v. Superior Court (Thompson), 198 Ariz. 109, 110, ¶ 2, 7 P.3d 118, 119 (App.2000); State v. Superior Court ex rel. County of Navajo, 190 Ariz. 203, 205, 945 P.2d 1334, 1336 (App.1997) (citation omitted); Baker v. Superior Court, 190 Ariz. 336, 338, 947 P.2d 910, 912 (App. 1997) (citation omitted). In addition, accepting special action jurisdiction is appropriate when the issue is one "upon which lower courts, lacking appellate guidance, have rendered inconsistent judgments." State v. Superior Court (Porter), 198 Ariz. 376, 378, ¶ 5, 10 P.3d 634, 636, 638 (App.2000) (review granted Feb. 13, 2001).

¶ 9 We normally would await a final decision in the superior court appeal before accepting special action jurisdiction in cases such as this. See, e.g., State v. Superior Court (Williams), 168 Ariz. 128, 130-31, 811 P.2d 791, 793-94 (App.1991) (accepting special action jurisdiction following a superior court appeal from municipal court). But the unique circumstances of this special action merit a rare exception to our general practice. These unique circumstances include the following: (1) there is a possibility that the appeals to the superior court in these cases will not be consolidated and will thus result in conflicting rulings in the superior court; (2) numerous cases not directly involved in the superior court appeal nor in this special action are pending in various city and state courts; and (3) providing immediate appellate court guidance on this pure issue of law serves the substantial interest in achieving judicial economy. See Martin v. Reinstein, 195 Ariz. 293, 301,

¶ 11, 987 P.2d 779, 787 (App.1999) (noting that the risk of inconsistent decisions and the promotion of judicial economy are appropriate considerations in determining whether special action jurisdiction should be accepted); Ariz. Dep't of Pub. Safety v. Superior Court, 190 Ariz. 490, 494, 949 P.2d 983, 987 (App.1997) (same) (citations omitted).

¶ 10 We therefore accept jurisdiction because blood testing performed for DUI purposes is an issue of statewide importance. In addition, the issue involves a pure question of law and the lack of appellate guidance on this issue has led to inconsistent rulings in the lower courts. Finally, accepting special action jurisdiction is appropriate because, in the event that the State loses its superior court appeal, the State would be precluded from pursuing any further direct appeal from that final judgment. See A.R.S. § 22-375 (1990); State v. Superior Court (Pawlowicz), 195 Ariz. 555, 557, ¶ 7, 991 P.2d 258, 260 (App.1999) (concluding that special action jurisdiction was appropriate to allow State to challenge superior court order suppressing evidence in DUI prosecutions originating in magistrate and justice courts). Accordingly, we conclude that these circumstances are sufficient under Rule 7(b) of the Arizona Rules of Procedure for Special Actions to justify our acceptance of jurisdiction in this case.

DISCUSSION

I. Inapplicability of Titles 36 and 32

¶ 11 Section 28-1388(A), which defines the class of persons who are legally authorized to perform blood tests for DUI purposes, states the following:

If blood is drawn under § 28-1321, only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content in the blood. The qualifications of the individual withdrawing the blood and the method used to withdraw the blood are not foundational prerequisites for the admissibility of a blood alcohol content determination made pursuant to this subsection.

(Emphasis added.)

¶ 12 "Qualified person" is not defined in Title 28. Nevertheless, Respondents argue that certain statutory provisions from Titles 36 and 32 govern the scope of "qualified persons" under Title 28. Title 36 states that "[o]nly a person authorized by law shall collect human bodily materials. Technical personnel of a laboratory may collect blood ... under the direction or upon the written request of a licensed physician for examination by a licensed laboratory." A.R.S. § 36-471 (1993). Similarly, under Title 32, medical assistants may "[t]ake body fluid...