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Caveat when drawing blood on DUI suspects.

CASE ON POINT: City of Las Vegas v. Walsh, 2004 WL 1293893 P.2d--NV

ISSUE: Whenever, a health care provider, be it physician, nurse, or other, is involved in treating a patient accused of driving under the influence (DUI), or other criminal offence, the provider should be keenly aware of the fact that he or she may be called to testify in court. Law enforcement officers can be quite persuasive in convincing health care providers "not to worry" and that their "affidavit will suffice" in the event of a criminal prosecution, and that it will not be necessary for the provider to testify in person in the event of trial. Essentially, that is what happened in this interesting Nevada case, in which a nurse who had drawn a DUI suspect's blood executed an affidavit indicating what bad been done and what the results were. However, during the course of the suspect's trial on criminal charges of DUI, the defendant's attorney objected to the admission of the nurse's affidavit and demanded that she testify in person in order to allow to cross-examine her.

CASE FACTS: The City of Las Vegas charged Mike Gehner with driving under the influence of alcohol. At the beginning of trial, the city moved that the Municipal Court admit into evidence the affidavit of a registered nurse who had drawn Gehner's blood. The registered nurse who drew the blood from Gehner for a blood-alcohol test stated in her affidavit the name, employer, and the fact that she was authorized to draw blood as a regular part of her duties. She further attested to the date and time she withdrew the blood, that she withdrew the blood from Gehner in a medically acceptable manner, that she used no alcohol solutions or alcohol-based swabs, and that she kept the sample in her custody and in the same condition as when she drew it until she delivered it to a law enforcement officials. The City argued that all of the facts contained in the nurse's affidavit were admissible in evidence. Consequently, the City argued that it was not necessary for the nurse to testify at trial. The defendant countered that certain facts in the affidavit were not admissible in evidence, namely, that the nurse used no alcohol solutions, or alcohol-based swabs. The defendant argued that if the allegedly inadmissible facts were struck from the affidavit, a bona fide dispute would exist. The Municipal Court ruled that certain allegations of fact contained in the affidavit were not admissible in evidence. Thus, the nurse was required to testify in person at the defendant's trial. The City filed a petition for writ of mandamus requesting the District Court to compel the Municipal Court to admit the affidavit in its entirety. The District Court denied the petition. The defendant appealed.

COURT'S OPINION: The Supreme Court of Nevada affirmed the judgment of the lower court. The court held, inter alia, that a health care professional's affidavit is "testimonial" and can be admitted into evidence only if the health care professional is unavailable to testify at trial, and the defendant has had an opportunity to cross-examine the health care professional regarding statements in the affidavit. The court held that because the defendant would have been deprived of the opportunity to cross-examine the nurse, the nurse's affidavit was not admissible in evidence.

LEGAL COMMENTARY: Nevada law provides that the affidavit of a person who draws blood from another for analysis by an expert is admissible to provide: (a) the occupation of the affiant or declarant; (b) the identity of the person from whom the affiant or declarant drew the sample; (c) the fact that the affiant or declarant kept the sample in his sole custody or control and in substantially the same condition as when he first obtained it until delivering it to another; (d) the identity of the person to whom the affiant or declarant delivered it. The court rejected the City's contention that the law allowed for the inclusion in the affidavit of the nurse's statement that she did not use alcohol solution or alcohol-based swabs. The court found that the interpretation of the city proffered was much too broad and would allow the affidavit to including otherwise inadmissable ex parte testimony into evidence. This requires close scrutiny. Such peripheral matters in a health care provider's affidavit amount to the admission of the ex parte testimony into evidence upon a mere finding of reliability. The court ruled that "this malleable standard often fails to protect against paradigmatic confrontation violations." Accordingly, the court held that the "Confrontation Clause" bars the use of testimonial statement made by a witness who does not appear at trial, unless the witness is unavailable to testify at trial, and the defendant has had an opportunity to cross-examine the witness regarding the statement. The court drew an analogy between a 911 call, which is typically initiated not by the police, but by the victim of a crime. Such a call is generated not by the desire of prosecution or police to seek evidence against a particular suspect; rather, the 911 call its genesis in the urgent desire of a citizen to be rescued from immediate peril. Conversely, a testimonial statement is produced when a government summons a citizen to be a witness; in a 911 call, it is the citizen who summons the government to his or her aid.
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Title Annotation:Nursing Law Case of the Month
Publication:Nursing Law's Regan Report
Geographic Code:1USA
Date:Jun 1, 2004
Words:897
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