State v. Fortner

478 So. 2d 673
CourtLouisiana Court of Appeal
DecidedOctober 30, 1985
Docket17406-KW
StatusPublished
Cited by6 cases

This text of 478 So. 2d 673 (State v. Fortner) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fortner, 478 So. 2d 673 (La. Ct. App. 1985).

Opinion

478 So.2d 673 (1985)

STATE of Louisiana, Respondent,
v.
James C. FORTNER, Applicant.

No. 17406-KW.

Court of Appeal of Louisiana, Second Circuit.

October 30, 1985.

*674 Boles & Mounger by Charles H. Ryan, Monroe, for applicant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, William R. Coenen, Jr., Dist. Atty., Stephen G. Dean, Asst. Dist. Atty., Winnsboro, for respondent.

Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.

HALL, Chief Judge.

Defendant, James C. Fortner, was found guilty as charged of driving while intoxicated in violation of LSA-R.S. 14:98. The court sentenced the defendant to pay a fine of $500.00 and costs, or in default thereof serve 60 days in the parish jail, and to a jail term of 30 days. The jail term was suspended and the defendant was placed on unsupervised probation for a period of one year with three special conditions of probation.

The defendant's application for review asserts the following assignments of error: (1) the blood sample was extracted by Norma Willis, but the state offered no evidence to establish her as being an individual in possession of a valid permit for this purpose issued by the Department of Public Safety as required by LSA-R.S. 32:663; (2) there was no evidence introduced by the state to establish that the sheriff's department *675 of Franklin Parish, Louisiana or the town of Wisner, Louisiana had designated the blood alcohol test as the test which either one of those agencies would administer as is required by LSA-R.S. 32:661 A; (3) the taking of the blood alcohol test was not preceded by a correct and fully informed warning to Mr. Fortner of the consequences of the taking of the blood test as is required by LSA-R.S. 32:661 C; and (4) the results of the blood alcohol test performed by Susan T. Rutledge did not establish that she was a technician who was qualified to administer this test and to perform the blood alcohol analysis or that she was an individual in possession of a valid permit for that purpose as is required by LSA-R.S. 32:663.

Finding no merit to defendant's assignments of error, the conviction is affirmed.

FACTS

On October 26, 1984, Otis Roberts of the Wisner City Police Department observed the defendant's gray Cadillac turning right on Oakley Road three miles north of Wisner. Officer Roberts had received information that this car had been travelling "all over the road and running off of the road." The caller had also given the officer a license number which matched the license number of the defendant's car. After stopping the defendant's vehicle, Officer Roberts asked the defendant to step out of the car and to show him his driver's license. Officer Roberts observed two vodka bottles on the rear floorboard of the defendant's car and the defendant, in attempting to show his driver's license, dropped his "papers" all over the road. The defendant stated to Officer Roberts that he was travelling from New Orleans and had been drinking along the way. Officer Roberts placed the defendant under arrest and transported him to Winnsboro to conduct a blood alcohol test.

Norma Willis, a lab technician at the Franklin Parish Hospital, was called to the sheriff's department to withdraw blood from the defendant. The blood was analyzed by the North Louisiana Criminalistics Laboratory and was determined to contain 0.22 percent alcohol. The blood alcohol test forms the basis of defendant's assignments of error.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment, defendant contends that the state did not lay a proper foundation for the admissibility of the blood alcohol test because the person who withdrew the defendant's blood did not testify that she possessed a permit issued by the Department of Public Safety for the purpose of extracting a blood sample as required by LSA-R.S. 32:663 and LSA-R.S. 32:664 A.

LSA-R.S. 32:663 provides as follows:
Chemical analysis of the person's blood, urine, breath or other bodily substance, to be considered valid under the provisions of this part, should have been performed according to methods approved by the Department of Public Safety and by an individual possessing a valid permit issued by said department for this purpose. The Department of Public Safety is authorized to approve satisfactory techniques or methods, to ascertain the qualification and competence of individuals to conduct such analysis, and to issue permits which shall be subject to termination or revocation at the discretion of the department.

LSA-R.S. 32:664 A provides in pertinent part:

When a person submits to a blood test at the request of a law enforcement officer under the provision 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....

In State v. Junell, 308 So.2d 780 (La. 1975), the court found that LSA-R.S. 32:664 applies only to the withdrawing of blood whereas LSA-R.S. 32:663 applies to the separate subsequent act of analysis in the laboratory. Thus, the court found that a person may be qualified under LSA-R.S. 32:664 to withdraw blood from a defendant but unqualified to analyze blood under LSA-R.S. 32:663. Therefore, the permit *676 requirement of Section 663 does not apply to the person withdrawing the blood; however, the person withdrawing the blood must be qualified under Section 664.

In the present case, the person who withdrew the defendant's blood, Norma Willis, testified that she was a lab technician at the Franklin Parish Hospital and that her duties in connection with her job included drawing blood. Although Ms. Willis was not shown to hold a special certification, Ms. Willis' occupation indicates that she is a "qualified technician" within the meaning the LSA-R.S. 32:664. In State v. Welch, 468 So.2d 599 (La.App. 2d Cir.1985) this court found that "technician" has been defined as "a specialist in the technical details of a subject or occupation or one who has acquired the technique of an art or other area of specialization," Webster's New Collegiate Dictionary, Eighth, (1976) and as "one versed in the technicalities of a subject," The American College Dictionary, (1966). Ms. Willis is a qualified technician under these definitions. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment, defendant contends that the state offered no evidence to prove that the Franklin Parish Sheriff's Office or the town of Wisner had designated that the blood test would be the test to be used by these law enforcement agencies. Defendant contends that LSA-R.S. 32:661 A requires that the officer in charge of the law enforcement agency designate in advance that the blood alcohol test be the test to be used by law enforcement agencies in Franklin Parish.

LSA-R.S. 32:661 A provides:
Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent subject to the provisions of LSA-R.S. 32:662, to a chemical test or test of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverage.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Huffman v. State
243 So. 3d 592 (Louisiana Court of Appeal, 2018)
Jones v. State, Department of Public Safety
747 So. 2d 774 (Louisiana Court of Appeal, 1999)
State v. Skeetoe
501 So. 2d 931 (Louisiana Court of Appeal, 1987)
State v. Taylor
483 So. 2d 250 (Louisiana Court of Appeal, 1986)
State v. McGuire
481 So. 2d 740 (Louisiana Court of Appeal, 1985)
State v. Eppinette
478 So. 2d 679 (Louisiana Court of Appeal, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
478 So. 2d 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fortner-lactapp-1985.