Background
On March 18, 2022, Montana Highway Patrol Trooper Luke Jester stopped Donald Paul Rogers on U.S. Highway 93 in Ravalli County after observing a taillight malfunction and a fog-line crossing. Jester smelled marijuana, saw that Rogers was not wearing a seatbelt, and observed a container in the vehicle. Rogers said he had smoked marijuana before leaving home, displayed a pipe, and identified the container’s contents as marijuana. After standardized field sobriety tests, Jester arrested Rogers for driving under the influence and read the implied-consent advisory. Rogers consented to a blood draw at Bitterroot Health.
Certified phlebotomist Cassandra Bedsaul drew the blood while Jester watched. The State charged Rogers with operating a vehicle with a THC concentration of 5 ng/ml or more, fourth or subsequent offense, a felony under § 61-8-1002, MCA, and related misdemeanors. Bedsaul testified about her training, certification, hospital employment, and routine DUI blood-draw procedures, but did not identify supervision or direction by a physician or registered nurse. The Blood Test Request Form, Exhibit 2, was admitted without objection. It documented collection and handling, not Rogers’s THC result. Bedsaul acknowledged labeling the vials with Jester’s name rather than Rogers’s, but identified Rogers as the person whose blood she drew.
When forensic toxicologist April Sheets was asked whether she had tested Rogers’s sample, defense counsel objected under §§ 61-8-1018(1)(b)(ii) and 61-8-1019(1), MCA, citing the absence of testimony that Bedsaul was supervised or directed by a licensed physician or registered nurse. The district court overruled the objection, inferring supervision from hospital employment. The toxicology report, Exhibit 1, was then admitted over a maintained objection. Sheets reported Delta-9 THC at 8.9 ng/ml plus or minus 1.2 ng/ml and THC-COOH at 119 ng/ml. The jury convicted Rogers of the THC per se offense and related misdemeanors, while acquitting him of failure to have a taillamp. At sentencing, the court relied on Rogers’s certified driving record and sentenced him as a fourth-or-subsequent DUI offender.
The Court’s Holding
The Montana Supreme Court affirmed. It held that the district court abused its discretion by treating Bedsaul’s certification and hospital employment as sufficient to establish the supervision and direction required by § 61-8-1019(1), MCA. The statute permits an “other qualified person” to withdraw blood at an officer’s request only when acting under a physician’s or registered nurse’s supervision and direction. Qualification and supervision are separate foundational requirements. The court did not require in-room supervision, a supervisor’s signature, or authorization of each draw; it held that this record contained neither direct nor sufficient circumstantial evidence of the required relationship. Its conclusion concerned the adequacy of the proof, not a finding that Bedsaul actually worked unsupervised.
Nevertheless, the majority held that Rogers waived the objection by failing to raise it during Bedsaul’s blood-draw testimony or when Exhibit 2 was offered. Under M. R. Evid. 103(a)(1), a timely objection or motion to strike was required. The majority characterized the later objection during Sheets’s testimony as an untimely attempt to challenge evidence already admitted, rather than a timely objection to the toxicology results. It therefore affirmed admission of Exhibit 1 and Sheets’s testimony despite the foundational error.
The court also rejected Rogers’s sentencing challenge. A certified driving record can satisfy the State’s initial burden of competent proof of prior convictions, after which a presumption of regularity attaches and the defendant must supply direct evidence of irregularity. The court expressly did not hold that every certified driving record categorically constitutes competent proof. Rogers’s record listed convictions from 1995, 2003, 2005, and 2008; the district court relied on the 2003, 2005, and 2008 convictions. Rogers offered no direct evidence contradicting those dispositions. His report of a former attorney’s statement and his arguments about unrelated reversed entries and the informal tabulation did not rebut the presumption.
Justice Katherine M. Bidegaray dissented, joined by Justices Ingrid Gustafson and Laurie McKinnon. The dissent agreed that the foundation was deficient but concluded Rogers timely objected before the toxicology report or numerical results were introduced. It would have reversed the THC per se conviction, vacated that sentence, and remanded without disturbing the separate misdemeanor convictions, because the toxicology evidence supplied the only proof of the required THC concentration.
Key Takeaways
- Hospital employment and phlebotomy certification alone did not establish physician or registered-nurse supervision under § 61-8-1019(1), MCA.
- The majority nevertheless affirmed because it found Rogers’s foundational objection untimely as to the already-admitted blood-draw evidence.
- A certified driving record satisfied the State’s initial sentencing burden here, but the court rejected a categorical rule that all such records are competent proof.
- The dissent viewed the objection as timely to the not-yet-introduced toxicology results and would have reversed the felony THC conviction.
Why It Matters
The decision separates the merits of statutory blood-draw foundation from preservation. Prosecutors must prove both the drawer’s qualifications and the required medical supervision, but defense counsel must object when the challenged collection testimony and documents are presented, rather than assume a later objection to laboratory results will preserve every foundational defect.
The sentencing holding is similarly record-specific. Certified driving records can meet the State’s initial burden, yet defendants may rebut the resulting presumption with direct contradictory evidence. The divided court’s sharply different characterization of the objection also makes the opinion significant for trial practice concerning when collection evidence ends and toxicology-result evidence begins.