In a November 4 decision, the Montana Supreme Court held that a district court abused its discretion by treating a phlebotomist’s certification and hospital employment as enough to establish the supervision and direction the blood-draw statute requires.[1] The case was State v. Rogers, an appeal by Donald Paul Rogers from a Ravalli County jury verdict finding him guilty of operating a vehicle with a THC concentration of 5 ng/ml or more.[2] The court ruled that prosecutors cannot rely solely on a phlebotomist’s certification and hospital employment to prove a blood sample was collected under the medical supervision state law requires in a marijuana DUI case.[1]

Rogers was stopped in March 2022, admitted smoking marijuana, and was arrested after field sobriety tests before a certified phlebotomist drew his blood at a hospital.[1] The stop occurred on March 18, 2022, when a Montana Highway Patrol trooper stopped Rogers on U.S. Highway 93 in Ravalli County.[2] Testing by the Montana State Crime Lab found Rogers had a delta-9 THC concentration of 8.9 nanograms per milliliter of blood, above the state’s 5-nanogram limit for driving.[1] At trial the phlebotomist described her qualifications and the blood collection but identified no physician or registered nurse supervising or directing her work.[2] The district court had overruled the objection, reasoning that the statute did not require a physician or nurse in the room and that her hospital employment implied supervision.[2]

The Supreme Court nevertheless upheld Rogers’s conviction because his attorneys failed to raise the objection in a timely manner.[1] The court found counsel did not challenge the phlebotomist’s testimony or the admission of the blood-collection form when she testified, and never moved to strike that evidence.[2] It also upheld the use of Rogers’s certified driving record to establish at least three prior DUI convictions, affirming his sentencing as a fourth or subsequent DUI offender.[1] The jury found Rogers guilty of the THC per se offence and related misdemeanours, and acquitted him of failing to have a taillamp.[2]