Court allows Paramedic to Draw Blood for DUI evidence.

Gallatin County Attorney Spike Wright is seeking to determine if he can use BA blood test evidence when the blood was drawn by a paramedic.  The case of Speers v. Com. (quoted below) answers that question in the affirmative.

 

Wright says the closest hospital is l8 miles from his county, and this prevents the prompt taking of blood for evidence in DUI cases.

 

 

Speers v. Com., 828 S.W.2d 638 (Ky., 1992)
“ We first address the issue of whether phlebotomists and paramedics are within the class of persons who may draw blood from a DUI suspect. KRS 189.520, which establishes the various presumptions of intoxication, contained the following language in subsection (6) in 1989 when these cases arose:
Only a physician, registered nurse or qualified medical technician, duly licensed in Kentucky, acting at the request of the arresting officer can withdraw any blood of any person submitting to a test under this section of KRS 186.565. 1 (Emphasis added.)
        All three movants argue that their test results were inadmissible because their blood was impermissibly drawn, since the phlebotomist and the paramedic do not fall within the class of a “physician, registered nurse or qualified medical technician.” They insist that a strict interpretation of the statute would exclude a paramedic or phlebotomist from drawing and testing blood, since they are not licensed. The Commonwealth disagrees and argues that
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a paramedic and a phlebotomist each fall under the category of a “qualified medical technician,” and that the qualifying phrase “duly licensed” is meaningless, except as applied to physicians and registered nurses.
        Whether a paramedic or phlebotomist is a “qualified medical technician” is a question of statutory interpretation. The legislature did not define in the statute what constitutes a “qualified medical technician,” nor does the Kentucky Board of Medical Licensure recognize or license medical technicians, certified or not.

The legislature’s failure to define the ambiguous phrase “medical technician” gives credence to our interpretation that its intent was to include paramedics and phlebotomists in the class of “medical technicians.”

We believe that the phrase “duly licensed” was intended solely to modify the titles “physician” and “registered nurse” since these occupations are licensed by the Board of Medical Licensure.

A “technician” is defined in Webster’s Dictionary as a person who has learned the practical technical details and special techniques of an occupation. Webster’s Third New International Dictionary (1965).

 A phlebotomist is trained to draw blood from the human body. Phlebotomists work primarily within hospitals, which are themselves highly regulated by federal and state laws.

A hospital is required to adequately train and supervise its staff, including phlebotomists, in order to properly care for patients, to adhere to governmental regulations, and to avoid liability.

A paramedic receives intensive training before being certified by the Commonwealth through its Board of Medical Licensure. Both phlebotomists and paramedics are “qualified” to work within their respective medical fields and can easily be classified as “medical technicians.” To delete these classes of individuals from the statutory scheme would lead to an absurdity, and we are not required to give the statute such an interpretation. City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517, 519 (1955).
        The trained phlebotomist who drew blood from Fortney worked solely for the Pattie A. Clay Hospital. It was stipulated by Fortney and the Commonwealth that the phlebotomist’s only task at the hospital was to withdraw blood for pathology purposes. The paramedic who drew blood from Speers and Mullins was highly trained and certified by the Commonwealth and, as a part of his occupation, routinely drew blood. We believe that these individuals were “qualified medical technicians” as set forth in KRS 189.520.?
 

KRS 189.520 Operating vehicle not a motor vehicle while under influence of intoxicants or substance which may impair driving ability prohibited – Presumptions concerning intoxication.
(1) No person under the influence of intoxicating beverages or any substance which
may impair one’s driving ability shall operate a vehicle that is not a motor vehicle
anywhere in this state.
(2) No peace officer or State Police officer shall fail to enforce rigidly this section.
(3) In any criminal prosecution for a violation of subsection (1) of this section, wherein
the defendant is charged with having operated a vehicle which is not a motor
vehicle while under the influence of intoxicating beverages, the alcohol
concentration, as defined in KRS 189A.005, in the defendant’s blood as determined
at the time of making an analysis of his blood, urine, or breath, shall give rise to the
following presumptions:
(a) If there was an alcohol concentration of less than 0.05, it shall be presumed
that the defendant was not under the influence of alcohol;
(b) If there was an alcohol concentration of 0.05 or greater but less than 0.08,
such fact shall not constitute a presumption that the defendant either was or
was not under the influence of alcohol, but such fact may be considered,
together with other competent evidence, in determining the guilt or innocence
of the defendant; and
(c) If there was an alcohol concentration of 0.08 or more, it shall be presumed
that the defendant was under the influence of alcohol.
(4) The provisions of subsection (3) of this section shall not be construed as limiting
the introduction of any other competent evidence bearing upon the question of
whether the defendant was under the influence of intoxicating beverages.
Effective: October 1, 2000
History: Amended 2000 Ky. Acts ch. 467, sec. 12, effective October 1, 2000. –
Amended 1991 (1st Extra. Sess.) Acts ch. 15, sec. 19, effective July 1, 1991. –
Amended 1984 Ky. Acts ch. 165, sec. 18, effective July 13, 1984. — Amended 1968
Ky. Acts ch. 184, sec. 7. — Amended 1958 Ky. Acts ch. 126, sec. 24. — Amended
1954 Ky. Acts ch. 74, sec. 1. — Amended 1946 Ky. Acts ch. 209, sec. 1. –
Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat.
sec. 2739g-34, 2739g-34a, 2739g-34b
 

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