Thurman v. State, 68716

• Decision Date: 05 September 1984
• Docket Number: No. 68716,68716
• Citation: 172 Ga.App. 16,321 S.E.2d 780
• Parties: THURMAN v. The STATE.
• Court: Georgia Court of Appeals

Page 780

321 S.E.2d 780

172 Ga.App. 16

THURMAN v. The STATE.

No. 68716.

Court of Appeals of Georgia.

Sept. 5, 1984.

Clifton O. Bailey III, L. Paul Cobb, Jr., Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Margaret V. Lines, Harvey Moskowitz, Asst. Dist. Attys., for appellee.

QUILLIAN, Presiding Judge.

Tried for vehicular homicide and driving under the influence (D.U.I.), defendant appeals his conviction of D.U.I. Held:

1. Defendant consented to a blood alcohol test and his blood was drawn about four hours after the collision at St. Joseph's Hospital. The blood was drawn by Moore, a medical technician, who had been employed at the hospital for three years as a phlebotomist, or drawer of blood. She testified that prior to her employment she had special training as a phlebotomist during a two-year course of instruction at a medical institute. When the forensic chemist who analyzed the blood testified concerning his analysis, defendant objected to the admission of the results of the analysis on the ground that a proper foundation had not been laid because there was no evidence that Moore, the phlebotomist, was properly licensed to draw blood. The overruling of this objection is enumerated as error.

Defendant argues that because the medical practice statutes require that nurses and certain other non-physician medical assistants must be properly trained and certified and must perform their services under the supervision of a licensed physician, these requirements should also apply to a medical technician phlebotomist. However, no such statute pertaining to phlebotomists is brought to our attention.

We find that this issue is controlled adversely to defendant by Gooch v. State, 155 Ga.App. 708(6), 272 S.E.2d 572, where under similar circumstances we said: "The appellant contends that it was error to admit the results of her blood alcohol test because the person who drew the blood sample was not qualified to perform that function. Code Ann. § 68A-902.1(a)(2) [now OCGA § 40-6-392(a)(2) ] provides as follows: 'When a person shall undergo a chemical test at the request of a law enforcement officer under the provisions of Section 68B-306 [now OCGA § 40-5-55], as now or hereafter amended, only a physician, registered nurse, laboratory technician or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein ...' (Emphasis supplied.) The appellant's blood sample was drawn by a full-time employee of the Northeast Georgia Medical Center, whose only job was to 'draw blood.' This witness testified that she had trained at the center to perform this function and that she drew blood from approximately 50 people a day. Under these circumstances, we hold that she was a 'qualified person' within the meaning of the statute." Id. at 711, 272 S.E.2d 572.

Under the circumstances of this case we likewise find that Moore was a qualified person under OCGA § 40-6-392(a)(2).

2. Error is asserted because the trial court asked the forensic chemist alleged rehabilitative questions after the State had concluded its direct examinations.

The chemist was qualified and gave the results of his examination of defendant's blood: .18 grams percent of alcohol. He was then cross-examined as to whether blood could putrefy and responded that it could. On redirect examination he explained that when putrefaction occurred depended on the temperature at which it was kept. The court then by questioning determined that defendant's blood had not putrefied. Without objection to the court's questioning, defense cross-examination continued on another subject.

Defendant argues that the court's questioning violated OCGA § 17-8-55 which prohibits a judge from expressing or intimating his opinion as to what has or has not been proved or as to the guilt of the defendant.

We find no violation of OCGA § 17-8-55, and defendant does not have the right to raise this issue on appeal as he did not raise it at trial. "We have found no abuse of discretion by the trial...