Pulling a Certified Nurse Out of My Pocket

The bread and butter of district court trials is the Driving While Impaired charge. It is the first degree murder case of district court. Experts are tendered, SBI Blood Lab Results are introduced, and Constitutional case names are thrown around like beads at a Mardi Gras parade.

For me, I have a love/hate relationship with DWIs. I love the Constitutional parameters that have each and everyone. I love that we take them seriously, as I can really work myself to give a convincing closing argument. What I hate about them are all the foundational hoops that I have to walk through. It's not that I don't want to lay these foundations. It is that these foundations are time consuming, and, in the end, I'll be able to lay them. I hate that it seems that the facts rarely differ, and I seem to be having the same trial just with different faces. On the other hand, however, I like the challenge of creating different arguments that say the same thing: He was drunk, and he was driving.

Today, I had a Driving While Impaired case that presented a different challenge. The State's evidence showed that the defendant was not impaired solely by alcohol. The defendant's blood work indicated he had a mixture of both alcohol (although not a sufficient amount by itself for a conviction) and prescription drug medicine in his system. I did not recognize the prescription drug, and I did not think the judge would recognize it immediately. So, I had a problem. How was I going to get into evidence what this drug was, and, more importantly, what it's possible side effects were?

Luckily for me, most of our trials cannot take place until after we reconvene after lunch. So, I had approximately 30 minutes to figure out how I was going to do overcome this challenge. Now, don't get me wrong. We were given an hour and half for lunch, but I gotta eat. I'm going to take my time and have my food digest, if I am given an hour and half for lunch. So, after finishing my chicken soup, I go see my colleagues. I immediately go to someone who, although now in Super Court, was recently in district court. I tell her about my case and ask her how I could get this information in. She hands me the Physicians Desk Reference Manual, Nurse's Drug Handbook edition. She actually has the prescription drug in the defendant's system tabbed. I read what the reference book states, specifically how it might cause drowsiness and warns to avoid alcohol when taking the medication.

Great! I have information that is evidence, and good evidence at that. My next dilemma is how to get it in. My colleague suggests trying to offer it as a learned treatise. We look up the evidence rule, and I see the Learned Treatise doctrine only falls under the Hearsay Exceptions. So, that means I have to a witness to testify, and, at this moment, I don't. My colleague has a meeting with family members of a homicide victim, and she leaves. I go down the hall to my next colleague. I explain the situation and ask him if my understanding of the Learned Treatise is his understanding. He concurs, and we both start speaking of the Judicial Notice doctrine. I could have made a good faith effort that this reference manual, which is widely known to be used by medical professionals, could be offered under the Judicial Notice doctrine. Both my colleague and I, however, had our doubts as to the success of that endeavor. While we are discussing this, my supervisor walks in. We update him on my dilemma, when my colleague states, "If only we had a pharmacist nearby." I replied, "Yeah, but where are we going to get one in fifteen minutes." That's when my boss said, "You know our other district court assistant district attorney is a nurse. I bet she could testify."

Sure enough, after the end of my officer's testimony, I stand up and say, "Your honor, at this point, I have a copy of the Physician Desk Reference, Nurse's Drug Handbook here that I am going to ask the Court to take judicial notice of. Of course, I do have a certified nurse present and ready to testify if Your Honor really wanted to hear that it is reliable source that is used by the medical profession in understanding prescription drugs." At this point, the defense attorney asks where the nurse is. I point to my colleague and state that she is also a certified nurse. The court then asked, "How long?" She stated, "Seventeen years. In the Critical Care Department, and we used this book to help diagnose and manage patient's medication." At this point, the defense attorney said that he would not object and the Court agreed that it could take judicial notice of the reference.

Later on, the defense attorney told me that he was pretty confident walking in to court that day, because for two to three times prior, the State didn't have a blood result, and today was our final date to produce the blood results. Suddenly, seemingly to him, not only did I pull the blood results out of my pocket, but, more importantly, I pulled a certified nurse out of my pocket.