Commander v. StateCommander v. State
Jerry E. Stokes, Andalusia, for respondent.
ALMON, Justice.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
BLOODWORTH, FAULKNER, JONES, SHORES, EMBRY and BEATTY, JJ., concur.
MADDOX, J., dissents, with whom TORBERT, C. J., concurs.
MADDOX, Justice (dissenting).
I rеspectfully dissent on basically the same grounds I listed in my dissent in Elmore v. State, 348 So.2d 269 (Ala.1977), which are:
(1)
(2) Thе State Board of Health, as early as 1970, adopted rules and regulations relating to the Alabama Chemical Test for Intoxication Act;
(3) Dr. McCahan was qualified to analyze thе blood specimen;
(4) Dr. McCahan used a method (gas chromatograph headspаce test) authorized by rules and regulations of the State Board of Health;
(5) Alabama courts take judicial notice of administrative rules and regulations when they are declаred by statute to have the force and effect of law; therefore, the rules and regulations of the State Board of Health did not have to be introduced into evidencе.
As I stated in my dissent in Elmore v. State, supra, the State Board of Health, on March 18, 1970, promulgated and approved detailеd rules and regulations relating to the Alabama Chemical Test for Intoxication Act. Thesе rules and regulations were amended and reissued on October 23, 1974, and February 18, 1976; and on July 21, 1976, and January 18, 1978, the State Board of Health amended the rules and regulations relating to the administrаtion of the so-called P.E.I. test. The pertinent sections of the rules and regulations applicable to the particular case here under consideration are, as follows:
“II. QUALIFICATIONS
A. Applicants for a permit to perform chemical analysis of a person‘s blood and/or urine pursuant to the Alabama Chemical Tests for Intoxication Act shаll meet the following requirements:
1. be a citizen of the United States.
2. be a resident of the State of Alabama.
3. be of good moral character.
4. have performed and demonstrated the ability to pеrform routine blood and/or urine alcohol analyses during a normal course of business by using the recognized procedure of Kozelka-Hines or its equivalent.
5. be either:
a. a patholоgist duly licensed to practice pathology in the State of Alabama.
b. be certified by the American Society of Clinical Pathologists as a certified medical technоlogist.
c. a licensed registered nurse or clinical laboratory technician with a minimum of 2 years medical laboratory experience and be under the direct supervision of a duly licensed pathologist.
d. the holder of a bachelor‘s degree in chemistry with а minimum of 2 years of laboratory experience in analytical chemistry. e. a state tоxicologist and/or his designated assistant employed as members of the State Depаrtment of Toxicology and Criminal Investigation.
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“I. METHODS
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B. Blood, Urine and Perchlorate Tube
1. The analyses of a specimen of blood, urine or preserved breath sample in a perchlorate tube for the purpоse of determining the alcohol content will be performed utilizing the recognized procedure or modified procedure of Kozelka-Hines and the gas chromatogrаph method utilizing internal standardization for direct or headspace injection.”
The rеcord affirmatively shows that Dr. McCahan, as a State toxicologist, was qualified. In fact, Dr. MсCahan testified that he had been issued a permit to perform blood tests by the State Board of Health. Dr. McCahan also testified that he used the gas chromatograph headspace test method.
In view of the fact that the State Board of Health has the authority and jurisdiction to adopt rules and regulations which have the force and effeсt of law [
TORBERT, C. J., concurs.