State v. JunellState v. Junell
Defendant Howard Junell was charged by bill of information with operating a motor vehicle upon a public highway while under the influence of alcoholic beverages, in violation of
During the trial it developed that on the evening of December 31, 1973 and in the early morning hours of January 1, 1974, the defendant was operating a large truck along Interstate Highway 20; while passing through Webster Parish, Louisiana, he apparently lost control of the truck and drove into a ditch along the side of the road. After the wreck, he was taken to a local hospital where a sample of his blood was drawn at the request of Louisiana State Trooper W. L. Valentine. Trooper Valentine admonished the defendant that he could lose his driver‘s license for up to six months for refusing to take the blood test or chemical analysis; therefore, the test was demanded and obtained under the “implied consent statute,”
The issue we must resolve is whether the language of
“Chemical analyses of the person‘s blood, urine, breath or other bodily substance, to be considered valid under the provisions of this Part, shall have been performed according to methods approved by the state department of health and by an individual possessing a valid permit issued by said department for this purpose. The state department of health is authorised to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the department.” (Emphasis here and elsewhere supplied).
There is no disagreement about the fact that Mr. French did not possess a permit as described by the statute. We hold that he was therefore not qualified to perform the analysis of the blood nor was he qualified to testify as to that analysis because the language of the statute is mandatory.
Although the issue is res nova in this Court, several other jurisdictions have considered it and have been in accordance with Donigan in construing as mandatory their respective statutes, all of which were similar to the one in the Uniform Vehicle Code.
The case most similar to the one before us is Otte v. State, 172 Neb. 110, 108 N. W.2d 737 (1961), a reversal of a conviction wherein the court held that the words “Tests to be considered valid * * * shall” indicate that it was the intention of the legislature to condition the right to use the tests on meeting the two requirements, i. e., an analysis by an individual who had
In State v. Gallant, 108 N.H. 72, 227 A. 2d 597 (1967), the New Hampshire Supreme Court held that their statute was mandatory, not directory, in its requirements, and lack of substantial compliance formed the basis for a reversal. In Jones v. Forrest City, 239 Ark. 211, 388 S.W.2d 386 (1965), the Arkansas Supreme Court reversed a conviction because the state had not met its burden of proving that the analysis was done by an approved method; the court held that failure of the record to reflect such evidence was reversible error.
We find the reasoning in these cases to be persuasive, and we therefore align Louisiana with those states which have construed the permit requirement to be mandatory. It was apparently the intent of the legislature in enacting
We now turn to the State‘s argument that a reading of
“A. When a person submits to a blood test at the request of a law enforcement officer under the provisions of
R.S. 32:662 , only a physician, registered nurse, qualified technician or chemist may withdraw blood for the purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of breath specimens.“B. The person tested may have a physician or a qualified technician, chemist, registered nurse or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. After being advised of this right as provided in
R.S. 32:661(C) , he shall be given the opportunity to telephone and request the qualified person to administer such test. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.“C. No person who administers any such test upon the request of a law enforcement officer as herein defined, no hospital in or with which such person is employed or otherwise associated or in which such test is administered, and no other person, firm or corporation by whom or which such person is employed or is in any way associated, shall be in any wise criminally liable for the administration of such test, or civilly liable in damages to the person tested.”
The State contends that Mr. French was a “qualified technician” within the meaning of
There is a valid reason for restricting the class of persons who may withdraw a blood sample. To withdraw blood, one must invade the body of a person, and there is a possibility of causing pain
For the reasons assigned, the defendant‘s conviction and sentence are reversed, and the case is remanded to the district court for proceedings in accordance with our holding.
Notes
That section reads as follows:
`“Chemical analyses of the person‘s blood, urine, breath, or other bodily substance to be considered ralid under the provisions of this section shall have been performed according to methods approved by the State department of health and by an individual possessing a valid permit issued by the State department of health for this purpose. The State department of health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the State department of health.”