State v. D. Rogers

DA 24-0252

IN THE SUPREME COURT OF THE STATE OF MONTANA

2026 MT 259

STATE OF MONTANA,

Plaintiff and Appellee, v.

DONALD PAUL ROGERS,

Defendant and Appellant. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 22-62 Honorable Jennifer B. Lint, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Tammy A. Hinderman, Appellate Defender Division Administrator, Kristen L. Peterson, Assistant Appellate Defender, Helena, Montana For Appellee:

Austin Knudsen, Montana Attorney General, Thad Tudor, Assistant Attorney General, Helena, Montana

William Fulbright, Ravalli County Attorney, Sean Peterson, Deputy County Attorney, Hamilton, Montana

Submitted on Briefs: September 23, 2026

Decided: November 4, 2026

Filed:

__________________________________________

Clerk

11/04/2026

Case Number: DA 24-0252

1

2

Chief Justice Cory J. Swanson delivered the Opinion of the Court. ¶1 Donald Paul Rogers appeals from the judgment of the Montana Twenty-First Judicial District Court, Ravalli County, following a jury verdict finding him guilty of operation of a vehicle with a THC concentration of 5 ng/ml or more, fourth or subsequent offense, a felony, and related misdemeanors. Rogers argues the District Court erred by admitting the blood toxicology report because the State failed to establish that the phlebotomist who drew his blood acted under the supervision and direction of a licensed physician (physician) or registered nurse as required by § 61-8-1019(1), MCA. In the alternative, Rogers argues the District Court erroneously relied on his certified driving record to prove three prior DUI-related convictions for purposes of felony sentencing. ¶2 We address the following dispositive issues:

1. Whether the District Court erred in admitting Rogers's blood-test results.

2. Whether the District Court had competent evidence in the sentencing hearing to find Rogers had at least three prior DUI convictions and properly sentenced Rogers to a felony DUI.

¶3 We hold the District Court abused its discretion by treating the phlebotomist's certification and hospital employment as sufficient to establish the supervision and direction required by § 61-8-1019(1), MCA. However, Rogers waived his objection to that missing foundation before the State introduced the toxicology report and testimony describing its results. The District Court had competent evidence in the sentencing hearing to find Rogers had at least three prior DUI convictions at the sentencing hearing. We affirm.

3

FACTUAL AND PROCEDURAL BACKGROUND

¶4 On March 18, 2022, Montana Highway Patrol Trooper Luke Jester stopped Rogers on U.S. Highway 93 in Ravalli County after observing that Rogers's vehicle had a taillight malfunction and crossed the fog line. When Trooper Jester approached the vehicle, he smelled marijuana, observed Rogers was not wearing a seatbelt, and saw a Tupperware container in the vehicle. Rogers told Trooper Jester he had smoked marijuana before leaving his house, showed the officer a pipe, and stated the Tupperware contained marijuana.

¶5 Trooper Jester suspected Rogers was driving impaired. He conducted standardized field sobriety tests, placed Rogers under arrest for driving under the influence, and read him the Montana implied-consent advisory. Rogers consented to provide a blood sample at Bitterroot Health, and Trooper Jester transported him there. ¶6 Certified phlebotomist Cassandra Bedsaul (Bedsaul) drew Rogers's blood at Bitterroot Health while Trooper Jester watched. The State charged Rogers by amended Information with Operation of a Vehicle with THC Concentration of 5 NG/ML or More, 4th or Subsequent Offense, a felony in violation of § 61-8-1002, MCA, and related misdemeanors. Before trial testimony began, the District Court asked whether the parties had any foundational stipulations regarding the State's exhibits. Rogers advised the court he was not stipulating to any foundation.

¶7 Bedsaul testified she was a full-time certified phlebotomist at Bitterroot Health, Daly Hospital, on March 18, 2022. She described her college and on-site training and her NHA certification, which required 100 hours of training. Bedsaul further testified she

4

regularly performed legal blood draws and described the standardized DUI-kit procedure. During her testimony, the State offered, and the District Court admitted, the Blood Test Request Form as Exhibit 2 without objection. That form was not the toxicology report and did not contain Rogers's THC-concentration result. It had Rogers's name, information, and the date of the blood draw. It named Officer Jester as the requesting officer. Bedsaul did not identify a physician's or registered nurse's supervisory role in her work, any on-call supervision or direction, or a hospital policy establishing that relationship. Exhibit 2 identified Bedsaul as a "certified phlebotomist," and Bedsaul signed its medical-staff signature line with that title. Its initialed checklist addressed the collection tube, swab, labeling, and sealing and delivery to the requesting officer. ¶8 Bedsaul acknowledged she labeled the blood vials containing Rogers's blood with Trooper Jester's name rather than Rogers's name, but she identified Rogers in court as the person whose blood she drew. The officer separately testified he packaged and sealed the kit and that it remained in his possession until he mailed it to the Montana State Crime Lab. At the end of Bedsaul's testimony, the State requested her release from the subpoena, defense counsel did not object, and the court released her. After a recess, the State called forensic toxicologist April Sheets.

¶9 When the State asked Sheets whether she had tested a blood sample taken from Rogers, defense counsel objected before she answered, "Your Honor, I do have an objection at this time. I would object to any testimony or reports being admitted regarding the blood sample under 61-8-1018(1)(b), subsection ii." Rogers's counsel then identified § 61-8-1019(1), MCA, and explained, "So, with Ms. Bedsaul, she did not testify as to being

5

supervised or directed by a licensed physician or registered nurse." The State responded that the court could infer supervision from Bedsaul's hospital employment. The District Court overruled the objection, reasoning that § 61-8-1019(1), MCA, did not require a physician or registered nurse in the room and that Bedsaul's employment "demonstrates that she's employed and under the direction of the individuals there in the hospital."

¶10 Sheets then described how she tested Rogers's blood sample and testified that the laboratory had received Rogers's blood sample kit with all seals intact. During Sheets's testimony, the State made a single request to admit, for the first time, the toxicology report as Exhibit 1 and to publish it to the jury. Defense counsel maintained the statutory-foundation objection he had already made. The court noted the objection and admitted the toxicology report into evidence.

¶11 Only after the court admitted the toxicology report did Sheets describe the numerical results, including Delta-9 THC at 8.9 ng/ml plus or minus 1.2 ng/ml, and THC-COOH at 119 ng/ml. Exhibit 1, admitted during Sheets's testimony, was the toxicology results report; Exhibit 2, admitted during Bedsaul's testimony, was the blood test request form. ¶12 After the State rested, Rogers moved for a directed verdict on the THC per se charge, arguing that without the challenged blood-test results the State had not proved the THC per se charge. The District Court denied the motion, citing State v. Merry, 2008 MT 288,

345 Mont. 390, 191 P.3d 428, and State v. Allport, 2015 MT 349, 382 Mont. 29, 363 P.3d

441. The District Court reasoned that Rogers's case was "exactly the similar case" to Merry and Allport because the "witness identified she was a trained phlebotomist" and

"[s]he was employed by Bitterroot Health, which has, of course, the availability of

6

supervision." The jury found Rogers guilty of the THC per se offense and related misdemeanors and acquitted him of failure to have a taillamp. ¶13 At sentencing, Rogers argued the State had not proven the prior DUI-related convictions necessary for felony sentencing. The District Court relied on Rogers's certified driving record and sentenced him as a fourth or subsequent DUI offender.

STANDARD OF REVIEW

¶14 We review a district court's evidentiary rulings, including rulings on foundation, for abuse of discretion. State v. James, 2022 MT 177, ¶ 9, 410 Mont. 55, 517 P.3d 170; State v. Jenkins, 2011 MT 287, ¶ 4, 362 Mont. 481, 265 P.3d 643. A court abuses its discretion when it acts arbitrarily, without conscientious judgment, or exceeds the bounds of reason, resulting in substantial injustice. James, ¶ 9. Whether a prior conviction may be used to enhance a criminal sentence presents a question of law that we review de novo for corrections. State v. Holder, 2020 MT 61, ¶ 7, 399 Mont. 214, 459 P.3d 1282. We review the District Court's underlying factual findings for clear error. Holder, ¶ 7.

DISCUSSION

¶15 1. Whether the District Court erred in admitting Rogers's blood-test results. ¶16 A person commits the THC per se offense of driving under the influence by driving or being in actual physical control of a noncommercial vehicle or commercial motor vehicle within this state while the person's delta-9-tetrahydrocannabinol (THC) level, excluding inactive metabolites, is 5 ng/ml or more, as shown by analysis of the person's blood or other bodily substance. Section 61-8-1002(1)(d), MCA. Section 61-8-1018(1)(b)(ii), MCA, conditions admission of a blood-test report on analysis

7

in a qualifying laboratory and withdrawal of the blood "by a person competent to do so under 61-8-1019(1) . . . ." Section 61-8-1019(1), MCA, provides in relevant part:

Only a licensed physician, registered nurse, or other qualified person acting under the supervision and direction of a physician or registered nurse may, at the request of a peace officer, withdraw blood for the purpose of determining any measured amount or detected presence of alcohol, drugs, or any combination of alcohol and drugs in the person.

The blood-test evidence must satisfy the applicable statutory conditions as well as the evidentiary foundation required under the Montana Rules of Evidence. State v. McDonald,

215 Mont. 340, 343, 697 P.2d 1328, 1330 (1985). ¶17 In overruling Rogers's statutory-foundation objection and later denying his motion to dismiss for insufficient evidence, the District Court correctly recognized that § 61-8-1019(1), MCA, does not require direct, in-room supervision. Merry, ¶ 26; Allport, ¶ 16. The statute nonetheless requires an "other qualified person" to act under the supervision and direction of a physician or registered nurse. The question is whether the evidence established that relationship, not whether the prosecutor asked a particular question or identified a supervisor by name.

¶18 Our cases applying this statute have not required direct or in-room supervision, but each case involved record evidence of physician or registered-nurse supervision and direction. In Merry, the licensed practical nurse testified that she worked under the supervision and direction of superior staff, and the CEO of the facility that employed her testified that "an RN is on call whenever an LPN is on duty . . . ." Merry, ¶¶ 23, 25-26. In State v. Zakovi, 2005 MT 91, ¶ 36, 326 Mont. 475, 110 P.3d 469, the phlebotomist testified she remained under the supervision of an emergency-room registered nurse on

8

duty and was required to comply with that registered nurse's orders under hospital policy. In Allport, the medical technologist worked alone when he drew the blood but described the laboratory manager's direct supervision and an offsite physician's oversight. Allport, ¶¶ 5, 16. Allport emphasized the Legislature's purpose of allowing qualified personnel to perform blood draws in hospital settings without imposing a strict physical-presence requirement. Allport, ¶¶ 14-16. Its conclusion also expressly relied on the offsite physician's supervision. Allport, ¶ 16. We apply that general conception of supervision and do not require a supervisor to observe or separately authorize each draw. ¶19 Unlike our cases Merry, Zakovi, and Allport, this record identifies no actual evidence or testimony of physician or registered-nurse supervision of Bedsaul's work. While the District Court could consider circumstantial as well as direct evidence to determine evidentiary foundation, here the State offered neither. Crediting Bedsaul's training, certification, hospital employment, and description of routine blood-draw procedures establishes her qualifications and experience, but not a physician or RN supervisory relationship. The equipment, labeling, and sealing procedures described in connection with Exhibit 2 did not supply that relationship either. The form admitted as Exhibit 2 during Bedsaul's testimony identified Bedsaul as a certified phlebotomist, but neither its completed entries nor its checklist named a physician or RN supervisor or indicated any such supervision and direction, such as a supervisor's approval signature.¹ At no point did Bedsaul testify that she was supervised by a physician or an RN. The State

9

therefore relied on an inference of supervision based on her certification and hospital employment to establish the required relationship of supervision and direction. The District Court's finding she worked under hospital "individuals" did not establish that the required medical supervision existed.

¶20 On this record, the court exceeded the bounds of its discretion by treating hospital employment as sufficient to establish that missing statutory foundation. We do not require a supervisor's signature, physical presence, or authorization of each draw. The deficiency here is the absence of evidence sufficient to establish the supervisory relationship by any permissible means. Our conclusion therefore concerns the adequacy of this record and is not a finding that Bedsaul actually worked without supervision. The State proved Bedsaul was a qualified person. But the statute requires qualification and supervision. On this record, proof of one does not necessarily prove the other.

¶21 Rogers highlights Bedsaul's error in labeling the blood vial, but the labeling error does not establish a lack of supervision, and our conclusion does not depend on it. A supervised person could also make a typographical error when working an all-night shift in a hospital. Any questions as to the sufficiency of the blood draw would be separately addressed by different arguments. This case is simply about evidentiary foundation. ¶22 Rogers classifies the District Court's ruling as an interpretation of statute, subject to de novo review. But it is actually an evidentiary ruling on whether there is sufficient foundation for trial evidence. "The determination of whether an adequate foundation exists for the admission of evidence lies within the sound discretion of the district court."

State v. Pol, 2008 MT 352, ¶ 11, 346 Mont. 322, 195 P.3d 807. Such decisions are reviewed

10

for an abuse of discretion. State v. Strizich, 2021 MT 306, ¶ 17, 406 Mont. 391, 499 P.3d 575; State v. James, 2022 MT 177, ¶ 9, 410 Mont. 55, 517 P.3d 170. The District Court abused its discretion in ruling that Bedsaul's supervision by an RN or MD was implied because she worked in a hospital setting. The State must provide that foundation through testimony, even if from Bedsaul, and it did not.

¶23 However, the District Court reached the right result for a different reason. Even though it was error to admit the testimony of Bedsaul drawing Rogers's blood due to lack of foundation, Rogers waived his objection to the blood draw evidence because it was not timely made. "A defendant must make a timely objection to properly preserve an issue for appeal." State v. Paoni, 2006 MT 26, ¶ 35, 331 Mont. 86, 128 P.3d 1040. ¶24 The State called Bedsaul to testify about her actions to draw Rogers's blood at the request of a law enforcement officer for a DUI investigation. She did not immediately describe this particular blood draw. She first established her training and qualifications and work setting. She then described how she conducts a typical blood draw for a DUI investigation request, again not yet testifying to her actions for Rogers's blood. Then Bedsaul testified she drew Rogers's blood, completed the necessary paperwork, and labeled the blood vial so the officer could send it to the Crime Lab. At no time during her testimony did Rogers object that she had failed to lay the foundation of testifying she was supervised by an RN or physician.

¶25 Rogers had the opportunity to challenge the witness's foundation—supervision by an RN or MD—before allowing the State to inquire into the DUI blood draw or introduce the blood test request form, but he did not. Rogers then failed to object to Bedsaul's

11

testimony describing the blood test request form, identification of the form as State's Exhibit 2, or the State's motion to admit Exhibit 2 into evidence:

STATE: Can you please identify it for the Court.

BEDSAUL: It is a blood test requisition form.

STATE: Okay. And to the best of your knowledge, is that a true and accurate representation of the Blood Test Request Form that you filled out on March 18th, 2022?

BEDSAUL: Yes.

PETERSON: Your Honor, at this time I would ask to enter into evidence and publish to the jury Exhibit 2.

COURT: Mr. Bridgman, Mr. Young?

YOUNG: No objection, Your Honor.

COURT: State's Exhibit 2 is admitted. (Plaintiff's Exhibit 2 received.) ¶26 When the Crime Lab expert witness testified next, Rogers objected and argued the statute prohibits the toxicologist's testimony about the results of the blood tests. But that is not what the statute says. The statute imposes the qualification and supervision foundation requirements for drawing the blood, not testing the blood:

Only a licensed physician, registered nurse, or other qualified person acting under the supervision and direction of a physician or registered nurse may, at the request of a peace officer, withdraw blood for the purpose of determining any measured amount or detected presence of alcohol, drugs, or any combination of alcohol and drugs in the person.

Section 61-8-1019(1), MCA (emphasis added).

¶27 By the time Bedsaul stepped down from the witness stand, she had already completed her link in the evidentiary chain. The bell had been rung. As the State argues,

12

Rogers lodged a foundation objection to evidence that had already been admitted. Rogers could have objected during Bedsaul's testimony and challenged her foundation to testify about a blood draw, and objected to introduction of the blood test request form, until sufficient foundation had been laid. In State v. Weber, 2016 MT 138, 383 Mont. 506,

373 P.3d 26, defense counsel began to lay foundation for an exhibit but switched into inquiring into its contents before completing the foundation and having the document admitted. The State objected, and the trial court sustained the objection and allowed the defense to continue laying foundation. When the defense again switched to the contents of the not-yet-admitted exhibit, the State again successfully objected, and the defense moved on. Weber, ¶ 14. Here, Rogers was entitled to object in a similar manner prior to Bedsaul's testimony about conducting the blood draw and introducing the exhibit, but failed to do so.

¶28 When the toxicologist later testified, the jury was already aware—without objection—that Bedsaul had drawn Rogers's blood at the request of the officer, and the same blood vial had been tested at the Crime Lab, because the officer had already testified he sent the vial to the Crime Lab. There was no challenge to April Sheets's expert qualifications, testing methods, or chain of custody at the Crime Lab. Rogers was not objecting to Sheets's testimony; he was belatedly objecting to Bedsaul's testimony. ¶29 In the event of an objection to admission of evidence, the objecting party must raise a "timely objection or motion to strike" the evidence. M. R. Evid. 103(a)(1). Rogers did not timely object to Bedsaul's testimony of the blood draw, and never made a motion to strike Exhibit 2. The District Court did not have an opportunity to rule on the evidentiary

13

foundation of the blood draw testimony until after it was introduced. Rogers subsequently objected to the toxicology results, but he was really attempting to bootstrap a late objection to admission of Bedsaul's testimony of drawing the blood via a different, later witness who was testifying about testing the blood. Once evidence has been allowed without objection, a party cannot go back in time and challenge it absent a motion to strike, which Rogers never made here.

¶30 We held in State v. Dewitz, 2009 MT 202, 351 Mont. 182, 212 P.3d 1040, that Dewitz failed to object to improper testimony by a witness until after the witness had completed her objectionable testimony on direct examination, as well as cross-examination, before raising the objection and moving for a mistrial. "Dewitz did not raise a contemporaneous objection to Ashley's testimony even though the grounds for the objection were clearly apparent at the time." Dewitz, ¶ 63. While the instant case does not involve a motion for mistrial, the grounds for Rogers's objection were immediately apparent and he was required to object in a timely manner.

¶31 Rogers has not claimed that Bedsaul's testimony or the offering of Exhibit 2 came too quickly for his objection, such as in Paoni, ¶ 34 ("[Appellant] asserts that he had no time to object, given how quickly the State made the comment."), or State v. Hardman, 2012 MT 70, ¶ 25, 364 Mont. 361, 276 P.3d 839 ("Hardman protests that defense counsel objected immediately after the witness said 'yes' and the only way counsel could have objected more quickly would have been to beat the witness's monosyllabic answer."). Rogers had sufficient opportunity to object to Bedsaul's description of the blood draw

14

sequence on the grounds she had not demonstrated supervision, and the judge specifically asked his counsel for an objection before the admission of Exhibit 2. ¶32 Although the court abused its discretion in implying foundational facts for blood draw evidence that the State did not provide in its testimony, we affirm the ruling admitting the Exhibit 1 Toxicology Report and allowing April Sheets's testimony because Rogers's objection to the blood draw testimony was not timely made and therefore waived. ¶33 2. Whether the District Court had competent evidence in the sentencing hearing to find Rogers had at least three prior DUI convictions and properly sentenced Rogers to a felony DUI.

¶34 In seeking a sentence enhancement based on a prior conviction, the State must offer competent proof of the fact of the prior conviction. State v. Letherman, 2023 MT 196, ¶ 9,

413 Mont. 459, 537 P.3d 862 (citation omitted). A defendant's NCIC report, a certified driving record, or prior judgements may constitute competent proof of a prior conviction. Letherman, ¶¶ 10-14. Once the State meets its initial burden of presenting competent proof,

"a presumption of regularity" attaches to the prior conviction and the defendant must then provide "direct evidence of irregularity" to rebut the presumption. State v. Snell, 2004 MT 334, ¶ 25, 324 Mont. 173, 103 P.3d 503.

¶35 At sentencing, Rogers specifically contested the 1995 conviction and the 2003 conviction on the basis that the State failed to prove the existence of the prior convictions because it had not provided the judgments of the sentencing courts and relied only on an informal tabulation of his criminal history. In response, the State filed a copy of Rogers's certified driving history, which included convictions from 1995, 2003, 2005,

15

and 2008. Rogers continued to argue the actual judgments were necessary to establish

"appropriate and accurate" proof. ¶36 Under Letherman, a certified driving record may constitute competent proof that a prior conviction occurred. Rogers asks us to view the reference to a certified driving record constituting competent proof in Letherman as dicta since the State did not produce one there, and to overrule Holder, which applied the presumption-of-regularity framework after a determination that an NCIC entry reporting a disposition of "convicted" constituted competent proof that the conviction occurred. Holder, ¶¶ 4, 12-13. We decline Rogers's request. We do not hold that a certified driving record categorically constitutes competent proof. Rather, such records satisfy the State's initial burden. The defendant can then offer contrary direct evidence to rebut the presumption afforded competent proof. ¶37 The State offered competent proof of Rogers's prior convictions by filing a copy of his certified driving record. The State met its initial burden here. But Rogers did not provide any direct evidence to rebut the presumption of regularity afforded to the convictions supplied in the certified driving record. He produced no clerk's certification, certified docket, dismissal or vacatur order, expungement order, testimony from a court custodian, or other evidence directly contradicting the dispositions shown in the certified driving record for any of the DUI convictions. Instead, Rogers claimed that a prior attorney told him that he had not found any record of the prior DUI convictions. He also contended that the inclusion of unrelated reversed convictions in the informal tabulation of his criminal history cast doubt on his entire alleged criminal history. But neither argument was direct contradictory evidence to rebut the presumption afforded to the DUI convictions

16

in the certified driving history. As the District Court ruled at sentencing, "[W]e have a certified driving record that shows . . . at least three prior convictions for DUI," and "the rest of that criminal history, true or not, is completely irrelevant to the sentence."

¶38 In sentencing, the District Court relied on the 2003, 2005, and 2008 convictions, not the 1995 conviction. Rogers argues on appeal that the State abandoned reliance on the 1995 conviction because it could still obtain the qualifying convictions from the 2003, 2005, and 2008 convictions. Rogers also asks us to speculate whether the 1995 or 2003 convictions actually occurred prior to the undisputed 2005 conviction because his 2008 conviction was listed as a misdemeanor offense in the State's informal tabulation of Rogers's criminal history, and "[i]t would presumably have constituted a fourth offense felony DUI if the 1995 and 2003 convictions occurred." But that is not direct evidence contradicting the competent evidence. He also argues that third-party reports, such as a certified driving record, are often unreliable and not as determinative as a judgment of conviction. While this is plausible, Rogers did not provide any direct evidence rebutting the presumption of regularity that was afforded to any of the prior DUI convictions listed in the certified driving record. The certified driving record identified at least three DUI convictions. We hold that the District Court had competent evidence in the sentencing hearing to find Rogers had at least three prior DUI convictions. We affirm.

CONCLUSION

¶39 We hold the requirement to prove a person's qualifications and supervision are necessary foundations to provide testimony of a DUI blood draw under § 61-8-1019(1), MCA. Rogers failed to timely object to Bedsaul's testimony of the blood draw and

17

admission of the blood test request form, and therefore waived his objection to her testimony of the blood draw. The later objection to the Crime Lab toxicology report is not an objection to the draw because the facts that Bedsaul drew the blood and sent it to the Crime Lab were already in evidence.

¶40 We also hold the District Court had competent evidence in the sentencing hearing to find Rogers had at least three prior DUI convictions, and he was correctly sentenced to a felony DUI.

¶41 We affirm the conviction.

/S/ CORY J. SWANSON

We Concur:

/S/ BETH BAKER

/S/ JAMES JEREMIAH SHEA

/S/ JIM RICE

Justice Katherine M. Bidegaray, dissenting.

¶42 I agree that the State did not establish the supervision and direction required by § 61-8-1019(1), MCA, and that the District Court abused its discretion by treating certification and hospital employment as sufficient. Opinion, ¶¶ 3, 19-22. I dissent from the decision to affirm Rogers's THC per se conviction. Rogers objected before the State introduced the toxicology report or testimony describing its results. The majority treats that objection as an untimely challenge to the earlier blood-draw testimony and request form. But Rogers did not ask the court to exclude the earlier evidence. He challenged

18

whether that evidence established the statutory foundation for admitting the forthcoming results.

Rogers objected before the State introduced the toxicology results

¶43 The State's foundational burden does not excuse the defense from making a timely, specific objection. M. R. Evid. 103(a)(1). An objection may permit the proponent to cure a defect; that consequence does not excuse an otherwise untimely objection. The question is which evidence Rogers challenged and when he challenged it. The earlier collection evidence could remain in the record while the court determined whether it supplied the complete foundation required for admitting the later toxicology results. Accepting the collection evidence did not concede that the State established every statutory condition for admission of those results.

¶44 Section 61-8-1018(1)(b)(ii), MCA, conditions admission of a blood-test report on analysis in a qualifying laboratory and withdrawal of the blood "by a person competent to do so under 61-8-1019(1)." Section 61-8-1019(1), MCA, requires an "other qualified person," such as a phlebotomist, to act under the supervision and direction of a physician or registered nurse. The majority recognizes that express cross-reference in ¶ 16 but later reasons that the statute governs drawing blood, not testing it. Opinion, ¶ 26. Under §§ 61-8-1018(1)(b)(ii) and -1019(1), MCA, the State must establish that Bedsaul acted under the supervision and direction of a physician or registered nurse to satisfy the statutory foundation for admitting the toxicology report. Admitting Bedsaul's testimony about drawing Rogers's blood did not establish that a physician or registered nurse supervised and directed her work.

19

¶45 The supervision and direction requirement is not an element of Rogers's THC per se offense. The State had to prove the prohibited THC concentration as an element of that offense. Section 61-8-1002(1)(d), MCA. It had to establish Bedsaul's supervision and direction for a different purpose: to satisfy the statutory foundation for admitting the test evidence offered to prove that concentration. Sections 61-8-1018(1)(b)(ii) and -1019(1), MCA. The District Court, not the jury, had to determine whether the State established that foundation. M. R. Evid. 104(a); State v. Jenkins, 2011 MT 287, ¶¶ 8-9, 362 Mont. 481,

265 P.3d 643. Rogers's objection asked the court to exclude the toxicology evidence for lack of the required foundation; it did not ask the jury to treat supervision as an additional element of driving under the influence (DUI).

¶46 The distinction between the exhibits is undisputed. During Bedsaul's testimony, the State offered, and the District Court admitted without objection, Exhibit 2—the Blood Test Request Form. The form identified Bedsaul as a certified phlebotomist and addressed collection equipment, labeling, sealing, and delivery. It did not contain Rogers's THC-concentration result. Opinion, ¶ 7. Neither the form nor Bedsaul's testimony established the required supervisory relationship, as the majority concludes. Opinion, ¶¶ 19-20. At the end of her testimony, defense counsel did not object to her release from the subpoena. After a recess, the State called forensic toxicologist April Sheets. Opinion, ¶ 8.

¶47 When the State first asked Sheets whether she had tested a blood sample taken from Rogers, before she answered, defense counsel objected: "Your Honor, I do have an objection at this time. I would object to any testimony or reports being admitted regarding

20

the blood sample under 61-8-1018(1)(b), subsection ii." Counsel then identified § 61-8-1019(1), MCA, and explained: "So, with Ms. Bedsaul, she did not testify as to being supervised or directed by a licensed physician or registered nurse." The court overruled that statutory-foundation objection on the ground that it could infer supervision from Bedsaul's hospital employment. Opinion, ¶ 9.

¶48 During Sheets's testimony, the State later made a single request to admit the toxicology report as Exhibit 1 and publish it to the jury. Defense counsel maintained the statutory-foundation objection he had already made:

PROSECUTOR: Your Honor, at this time I would ask to publish the Toxicology Report to the jury and enter into evidence as Exhibit 1. DEFENSE COUNSEL: I'll just maintain my objection, Your Honor.

THE COURT: So objection noted. You can publish Exhibit 1, and it is admitted.

Only after the court admitted Exhibit 1 did Sheets describe the numerical results. Opinion, ¶¶ 10-11. Counsel did not wait until the report had been admitted and then object to its publication. He objected before the formal offer and maintained that objection when the State offered the report.

¶49 This is not a reconstruction of an ambiguous objection on appeal. Rogers expressly objected to both the forthcoming toxicology testimony and the report, identified the statute governing admission of the report, and explained the missing foundation. Counsel's reference to Bedsaul identified the asserted defect in the foundation for the forthcoming results; it did not convert the objection into a request to exclude her completed factual testimony. The majority's own account of the objection in ¶¶ 9-11 contradicts its later

21

characterization that Rogers "was not objecting to Sheets' testimony" but instead "was belatedly objecting to Bedsaul's testimony." Opinion, ¶ 28.

Admitting collection evidence did not establish a complete statutory foundation

¶50 Statutory competence to withdraw blood and competence to testify about withdrawing it are distinct inquiries. M. R. Evid. 601 generally makes persons competent witnesses, subject to exceptions provided in the Rules of Evidence. M. R. Evid. 602 requires sufficient evidence of personal knowledge and permits the witness's own testimony to establish that knowledge. A witness's lack of authorization to perform an act does not, by itself, eliminate her personal knowledge of performing it. Section 61-8- 1019(1), MCA, regulates who may draw blood at a peace officer's request; it does not make statutory authorization to draw blood an additional qualification for recounting firsthand actions. The contrary premise in ¶¶ 23 and 39 of the Opinion conflates those inquiries. This distinction does not dispense with other evidentiary requirements or authorize expert opinions without the necessary qualifications. ¶51 An objection to a toxicologist's result testimony likewise need not challenge the analyst's expertise or laboratory methods. It may identify an unsatisfied statutory prerequisite arising from collection of the sample. State v. McDonald, 215 Mont. 340, 346,

697 P.2d 1328, 1331-32 (1985), treated the blood drawer's qualification as part of the foundation for admitting both blood-alcohol evidence and the test report. I rely on McDonald for that connection, not its discussion of repealed administrative provisions or its treatment of hearsay in foundational material. The absence of a challenge to Sheets's

22

expertise, methods, or laboratory handling therefore does not answer Rogers's actual objection. See Opinion, ¶ 28.

¶52 Admitting foundational evidence does not necessarily establish a complete foundation for the evidence it supports. Under M. R. Evid. 104(a), the court decides preliminary questions of admissibility and, except as to privilege, is not bound by the rules of evidence in making that determination. Jenkins, ¶¶ 8-9, distinguishes the court's consideration of chemical-test certification materials from the ultimate question whether the test results have an adequate foundation. The certifications there were not substantive evidence of the DUI offense, and the court could consider them for foundation without first finding a hearsay exception. Jenkins, ¶ 9. Jenkins did not decide whether admitting foundational materials without objection forecloses a later objection to the test results. That is the preservation question presented here: whether Rogers's acceptance of the collection evidence prevented him from challenging the completeness of the statutory foundation when the State sought to introduce the toxicology results. ¶53 Rogers did not seek to strike Bedsaul's testimony or Exhibit 2, and reversal would not require their exclusion. That earlier evidence described the collection, equipment, and handling of the sample. It did not disclose the THC-concentration results later introduced through Sheets over Rogers's objection, and neither the testimony nor the form described the required supervisory relationship. Even assuming Rogers forfeited an objection to admission of that earlier evidence, he did not thereby concede that it proved a statutory fact the State had not established. The admissibility of the earlier evidence and the sufficiency of the foundation for the later results remain distinct questions. The majority's insistence

23

on a motion to strike the earlier evidence answers a request Rogers did not make. Opinion, ¶ 29.

¶54 The majority's conclusion that Bedsaul had completed her "link in the evidentiary chain" does not resolve that distinction. Opinion, ¶ 27. Proof that Bedsaul drew Rogers's blood, that Jester mailed the sample, and that the laboratory received an intact kit addressed the sample's identity and handling. Those facts did not establish the additional supervisory relationship the statute requires. Even crediting the earlier testimony and form in full, the court still had to decide whether the State had established the conditions for admitting the results. The majority holds that it had not. Opinion, ¶¶ 19-22. No motion to strike the collection evidence was necessary to present that question.

¶55 I recognize that defense counsel expressly declined to object to Exhibit 2 and agreed to Bedsaul's release from her subpoena. Those actions left her testimony and the form in evidence and permitted her departure. They did not, on this record, stipulate to the missing supervisory relationship or consent to admission of the results. My conclusion also does not depend on the State's ability to recall Bedsaul or its failure to do so after the court ruled the existing foundation sufficient. Recall could cure a defect; its availability does not establish timeliness. Rogers's objection was timely because he specifically challenged the toxicology evidence before the State first introduced its results. The District Court had an opportunity to rule before that evidence reached the jury and did so on the merits. I do not treat the court's merits ruling as independently excusing a late objection.

24

The contemporaneous-objection cases do not require a different result

¶56 State v. Dewitz, 2009 MT 202, ¶ 62, 351 Mont. 182, 212 P.3d 1040, requires an objection when the evidence is offered and as soon as its ground becomes apparent. There, the defendant waited until after the challenged witness had completed both direct and cross- examination before challenging her prior-drug-use testimony and moving for a mistrial. Dewitz, ¶¶ 61-64. The distinction is not that Dewitz requested a mistrial. It is that the jury already had heard the very testimony he sought to challenge. The missing supervision and direction evidence supplied a ground for objecting to the forthcoming toxicology results. It did not make Bedsaul incapable of recounting the draw from personal knowledge or require Rogers to seek exclusion of that factual account. Rogers raised the statutory objection when the State first asked Sheets about testing his sample, before it introduced either the report or the results. The defect was already apparent, but the evidence Rogers sought to exclude had not yet been introduced. The majority's reliance on an earlier opportunity to raise that defect does not establish that the objection to the results came too late. See Opinion, ¶ 30.

¶57 Dewitz also rejected a challenge to testimony repeating information the defendant himself had introduced through an affidavit. Dewitz, ¶¶ 52-55. His introduction of that evidence opened the door to the officer's account; presenting the information through a different witness did not undo his own introduction of it. Neither Bedsaul's testimony nor Exhibit 2—the Blood Test Request Form—disclosed the toxicology results later introduced as Exhibit 1 through Sheets. Rogers's objection did not seek to exclude previously

25

admitted information merely because another witness repeated it. It challenged the statutory foundation for results not yet introduced.

¶58 Paoni and Hardman likewise address objections made after the challenged content reached the jury. In State v. Paoni, 2006 MT 26, ¶¶ 33-36, 331 Mont. 86, 128 P.3d 1040, the defendant waited until the following morning to challenge the prosecutor's opening statement. In State v. Hardman, 2012 MT 70, ¶¶ 25-26, 364 Mont. 361, 276 P.3d 839, counsel objected after a witness answered a question about a medical-marijuana card and did not ask the court to strike the answer or give the jury a cautionary instruction. We upheld the trial court's even-handed control of the proceedings. Rogers does not ask us to excuse a late objection because testimony came too quickly. He objected before Sheets answered the first question about testing his sample and before the report or result testimony was admitted. Opinion, ¶¶ 9-11. The concern addressed in those cases is not present here.

¶59 In State v. Weber, 2016 MT 138, ¶ 14, 383 Mont. 506, 373 P.3d 26, the State objected when defense counsel began eliciting the contents of an exhibit without first establishing its foundation. The district court excluded the exhibit, and we upheld that evidentiary ruling because counsel had not established the required foundation. Weber, ¶ 15. Weber illustrates why an objection cannot always await the formal offer of a document if its challenged contents already are being introduced. Here, Rogers objected before the State introduced either Exhibit 1—the toxicology report—or testimony disclosing its results. Bedsaul's earlier testimony and Exhibit 2 described the collection of the sample; neither her testimony nor that form disclosed the toxicology results or

26

established the required supervisory relationship. Opinion, ¶¶ 7, 9-11, 19-20. Rogers's objection therefore required the District Court to determine whether the State had established the statutory foundation for the forthcoming toxicology evidence, not to reconsider admission of the earlier collection evidence. The majority's analogy to Weber assumes that the evidence Rogers challenged was Bedsaul's factual account or Exhibit 2. Opinion, ¶ 27. It was not. Paoni, Hardman, and Weber do not establish a deadline tied to the blood drawer's departure from the stand regardless of what evidence has been introduced. Applying M. R. Evid. 103(a)(1) and Dewitz to the particular evidence Rogers challenged does not create an exception to the contemporaneous-objection requirement. ¶60 State v. Decker, 251 Mont. 339, 341-43, 828 P.2d 1342, 1343-44 (1991), provides a further, limited comparison. There, we expressly noted that the blood-test request and alcohol-analysis request forms were admitted without objection. Decker, 251 Mont. at 341, 828 P.2d at 1343. We nevertheless addressed whether the blood drawer was qualified and, consequently, whether the forensic scientist's result testimony was admissible. Decker, 251 Mont. at 341-43, 828 P.2d at 1343-44. We affirmed based on two forms identifying the blood drawer above printed labels "Physician, Registered Nurse, etc." and

"Physician, Nurse, Med. Tech," together with the officer's account that the nurse summoned a physician who examined Decker before the nurse drew her blood. Decker,

251 Mont. at 341-43, 828 P.2d at 1343-44. Decker did not decide whether a defendant who allows collection forms into evidence without objection may later challenge the statutory foundation for the test results. I therefore do not rely on Decker to establish that Rogers's objection was timely. Rather, its relevance is that we examined whether the

27

admitted collection forms and surrounding evidence established the drawer's statutory qualification before concluding that the scientist's testimony about the results was admissible. The difference here is that the majority agrees the State did not establish the required foundation. Opinion, ¶¶ 19-22.

¶61 My conclusion is limited to this record. I would not hold that a party may await the last witness, the end of the State's case, or a document's formal admission to challenge evidence already introduced. I would not excuse a late objection merely because the proponent could recall a witness. Rogers made a specific statutory-foundation objection before the first introduction of the challenged results and maintained it when the State offered the report. Admission of the earlier collection evidence did not establish the missing supervisory relationship or foreclose that objection. Rogers preserved the issue under M. R. Evid. 103(a)(1).

The admission error requires reversal

¶62 Once a defendant establishes that the court erroneously admitted evidence and alleges prejudice, the State must demonstrate that there is no reasonable possibility the inadmissible evidence might have contributed to the conviction. State v. Van Kirk, 2001 MT 184, ¶¶ 42, 44-45, 47, 306 Mont. 215, 32 P.3d 735. When the only evidence tending to prove an element is tainted, the error is not harmless. Van Kirk, ¶ 45. In State

v. Bailey, 2021 MT 157, ¶ 48, 404 Mont. 384, 489 P.3d 889, we held that the defendant's admission to drinking alcohol and officer's testimony about his performance on a field-sobriety test did not establish the blood-alcohol concentration required for the per se offense. The State therefore could not rely on that evidence to show that the erroneous

28

admission of the analyst's testimony was harmless. Bailey, ¶ 48. Although Bailey concerned a confrontation violation arising from the analyst's remote testimony, rather than a deficient statutory foundation, the same harmless-error analysis applies here:

evidence of marijuana use or impairment did not establish the THC concentration required for Rogers's per se offense. See Bailey, ¶¶ 45, 48.

¶63 Rogers has shown prejudice. The toxicology report and Sheets's testimony supplied the only proof that his Delta-9 THC concentration was 5 ng/ml or more. Section 61-8-1002(1)(d), MCA; Opinion, ¶¶ 11, 16. Bedsaul's collection testimony and the request form did not establish that concentration. Rogers's marijuana use and the officers' observations of impairment did not supply the missing measurement. The report and Sheets's testimony about it were two presentations of the same test results, not independent, untainted proof of that element. Because no other evidence established the required concentration, the admission error was not harmless. Van Kirk, ¶ 45; Bailey, ¶ 48. ¶64 The State did not establish the statutory foundation, and Rogers timely objected to that deficiency before the challenged results entered evidence. I would reverse Rogers's THC per se conviction, vacate the sentence imposed for that offense, and remand for further proceedings without disturbing his separate misdemeanor convictions. Because I would reverse that conviction, I would not reach his alternative challenge to the proof of prior convictions for felony sentencing. I respectfully dissent.

/S/ KATHERINE M. BIDEGARAY

29

Justices Ingrid Gustafson and Laurie McKinnon join in the dissenting Opinion of Justice Katherine M. Bidegaray.

/S/ INGRID GUSTAFSON

/S/ LAURIE McKINNON