State v. Garcia

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: __________ 3 Filing Date: January 25, 2016 4 NO. 33,425 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellant, 7 v. 8 LUIS ALFREDO GARCIA, 9 Defendant-Appellee. 10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 11 Fernando R. Macias, District Judge 12 Hector H. Balderas, Attorney General 13 Yvonne M. Chicoine, Assistant Attorney General 14 Santa Fe, NM 15 for Appellant 16 Jorge A. Alvarado, Chief Public Defender 17 Karl Erich Martell, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellee 1 OPINION 2 VIGIL, Chief Judge. 3 {1} The question presented in this case is whether an emergency medical technician 4 (EMT) is authorized to draw blood for the purpose of determining its alcohol or drug 5 content under the Implied Consent Act, NMSA 1978, Sections 66-8-105 to -112, 6 (1978, as amended through 2015). We conclude no such authority exists and affirm 7 the order of the district court suppressing the results of Defendant’s blood test. 8 I. BACKGROUND 9 State Police Officers Bernal and Robles were dispatched to a head-on collision {2} 10 on NM 404 near the Texas border. Officer Bernal encountered the two cars involved 11 in the accident, and his on-scene investigation indicated that Defendant crossed over 12 the centerline and struck the other vehicle, causing its occupants serious injuries. 13 Bernal interviewed Defendant at the scene and observed that Defendant had blood14 shot, watery eyes, smelled of marijuana, and demonstrated indicators of being under 15 the influence of marijuana. Officer Bernal asked Defendant if he had smoked 16 marijuana, which he denied. Officer Bernal placed Defendant under arrest for driving 17 while intoxicated, and read the Implied Consent Act advisory to Defendant. 18 Defendant consented to a blood draw. 1 {3} Defendant, who was also injured in the accident, was placed inside an 2 ambulance for transport to a trauma center in El Paso, Texas. Defendant was being 3 treated by EMT Denise Andavazo inside the ambulance and while she was getting 4 ready to administer Defendant an intravenous (IV) solution, Officer Robles asked her 5 to draw a blood sample from Defendant, and she agreed. 6 {4} Officer Robles gave Ms. Andavazo an unexpired Scientific Laboratory 7 Division (SLD) approved blood draw kit to do the blood draw. SLD-approved blood 8 draw kits include everything that is needed for a blood draw to ensure continuity and 9 standardization, and to avoid compromising the accuracy and integrity of blood 10 samples. The kits contain instructions, paperwork, an iodine cleaning pad, a needle 11 with attached tube, and two gray-topped, sterile vacuum tubes containing sodium 12 fluoride—a white powder preservative. 13 {5} To avoid compromising Defendant’s care, which was her first priority, Ms. 14 Andavazo did not read the instructions, and she did not use the needle with attached 15 tube provided in the SLD-approved kit. Instead, she used a sterile IV catheter from 16 the ambulance’s supply to puncture Defendant’s vein and a sterile syringe from the 17 ambulance’s supply to draw Defendant’s blood through the IV catheter and then 18 transferred Defendant’s blood sample to the two vacuum tubes in the SLD-approved 19 kit. Ms. Andavazo then connected the IV to Defendant and the ambulance transferred 2 1 him to the hospital. Ms. Andavazo did not use the needle from the SLD-approved kit 2 to puncture Defendant, because this would have required her to puncture Defendant 3 twice, which she wanted to avoid. SLD received the sample, and after analyzing it, 4 concluded that THC metabolites, related to the “high” marijuana produces, were 5 present in Defendant’s blood, but not alcohol. 6 {6} Defendant was charged by indictment with causing great bodily harm by 7 vehicle while driving under the influence of alcohol and drugs and failure to maintain 8 a traffic lane. 9 {7} Defendant filed a motion to suppress the results of the blood test on grounds 10 that Ms. Andavazo was not qualified to perform blood draws under NMSA 1978, 11 Section 66-8-103 (1978) and that the blood draw was improperly performed. 12 Following a second evidentiary hearing, the district court granted the motion to 13 suppress on both grounds. The State appeals. 14 II. ANALYSIS 15 A. Standard of Review 16 “We review rulings upon the admission or exclusion of evidence under an {8} 17 abuse of discretion standard, but when there is no evidence that necessary 18 foundational requirements are met, an abuse of discretion occurs.” State v. Gardner, 19 1998-NMCA-160, ¶ 5, 126 N.M. 125, 967 P.2d 465 (citation omitted). This case 3 1 requires us to engage in statutory interpretation to determine what the appropriate 2 foundation is for admitting the results of blood tests to determine the content of 3 alcohol or drugs under the Implied Consent Act. We do so under a de novo standard 4 of review. State v. Bowden, 2010-NMCA-070, ¶ 9, 148 N.M. 850, 242 P.3d 417. 5 B. Qualifications Under Section 66-8-103 6 The Implied Consent Act states that “[o]nly the persons authorized by Section {9} 7 66-8-103. . . shall withdraw blood from any person for the purpose of determining its 8 alcohol or drug content.” Section 66-8-109(A). Section 66-8-103 in relevant part then 9 directs: 10 11 12 13 Only a physician, licensed professional or practical nurse or laboratory technician or technologist employed by a hospital or physician shall withdraw blood from any person in the performance of a blood-alcohol test. 14 In interpreting Section 66-8-103, we follow standard statutory interpretation 15 principles. The primary goal of statutory interpretation is “to ascertain legislative 16 intent, indicated by the plain language of the statute.” State v. Vaughn, 2005-NMCA17 076, ¶ 33, 137 N.M. 674, 114 P.3d 354. “When the statute’s language is clear and 18 unambiguous, we give the statute its plain and ordinary meaning and refrain from 19 further interpretation.” Id. (internal quotation marks and citation omitted). “All 20 portions of statutes are read in connection with every other part to produce a 21 harmonious whole.” Id. 4 1 {10} The State first argues that because Section 66-8-103 only refers to a “blood- 2 alcohol test,” it does not apply here as this case involves a blood test which was used 3 to determine the presence of drugs. However, this argument overlooks the plain 4 language of Section 66-8-109(A), which makes it clear that only the persons 5 authorized by Section 66-8-103 “shall withdraw blood from any person for the 6 purpose of determining its alcohol or drug content.” In reading these sections 7 together, we conclude that the Legislature intended blood draws under the Implied 8 Consent Act—whether for alcohol or drug content—be performed only by persons 9 listed in Section 66-8-103.We therefore reject the State’s argument, and turn to the 10 question presented—whether an EMT falls within the parameters of Section 66-811 103. 12 {11} Section 66-8-103 explicitly states that “only” the categories of persons listed 13 may perform blood draws under the Implied Consent Act. The categories are: (1) a 14 physician; (2) a licensed professional or practical nurse; (3) a laboratory technician; 15 and (4) a technologist. The State argues that there is a fifth category: a “licensed 16 professional”, and as a licensed EMT, Ms. Andavazo is a “licensed professional” 17 authorized to perform a blood draw under Section 66-8-103. To answer this 18 contention, we first look to our own cases construing the statute. 5 1 {12} In State v. Trujillo, 1973-NMCA-076, ¶¶ 2-3, 15-16, 85 N.M. 208, 510 P.2d 2 1079, the defendant was arrested for driving while intoxicated and taken to a hospital 3 where a laboratory technologist who was employed by a physician, but not licensed, 4 withdrew his blood in a medically approved manner. The defendant argued that the 5 statute1 identifies five authorized categories: (1) a physician; (2) a licensed 6 professional nurse; (3) a licensed practical nurse; (4) a laboratory technician; and (5) 7 a laboratory technologist. Trujillo, 1973-NMCA-076, ¶ 16. The defendant further 8 asserted that the licensing requirement set forth in the statute applies to a laboratory 9 technician and a laboratory technologist. Id. We first noted that the statute is 10 ambiguous, requiring us to ascertain the legislative intent by applying rules of 11 statutory construction. Id. ¶ 17. We then rejected the argument that the licensing 12 requirement stated in the statute applies to a laboratory technologist on the basis that 13 there was no provision in effect for licensing technologists when the statute (Section 14 66-8-103) was enacted. Trujillo, 1973-NMCA-076, ¶¶ 18-20, 22. Reading a licensing 15 requirement into the statute when there were no other provisions to allow for 16 licensing would lead to an otherwise absurd or unreasonable result. Id. ¶ 19. 17 {13} In State v. Wiberg, 1988-NMCA-022, ¶ 10, 107 N.M. 152, 754 P.2d 529, we 18 stated that “[s]tatutes are to be read and understood primarily according to their 19 1 NMSA 1953, Section 64-22-2.1 (1978) (recompiled as Section 66-8-103) 6 1 grammatical sense, unless it is apparent that the [Legislature] intended something 2 different.” We utilized the “last antecedent doctrine” to conclude that the phrase 3 “employed by a hospital or physician” applied to the preceding phrase “laboratory 4 technician or technologist” and not to “nurse,” the more remote term, as the defendant 5 contended. Id. ¶¶ 7, 11 (internal quotation marks and citation omitted). We therefore 6 held, “Section 66-8-103 does not require a licensed professional nurse or registered 7 nurse to be employed by a hospital or physician in order to withdraw blood for blood8 alcohol tests.” Wiberg, 1988-NMCA-022, ¶ 18. 9 {14} Finally, in State v. Nez, 2010-NMCA-092, ¶¶ 11, 13-14, 148 N.M. 914, 242 10 P.3d 481, we concluded that the evidence was sufficient to establish the blood 11 drawer’s identity in a hospital emergency room as a registered nurse, and therefore, 12 that she was qualified to withdraw the defendant’s blood under Section 66-8-103. 13 While these cases are of some assistance to us, they are not definitive, and for 14 additional assistance, we now turn to how other states have treated the question 15 before us here. 16 {15} In Andrews v. State ex rel. Department of Public Safety, 2014 OK CIV APP 19, 17 320 P.3d 27 (cert. denied Jan 27, 2014), the arresting officer observed several 18 indicators of intoxication while investigating a single car accident, and at his request, 19 an EMT took the defendant’s blood inside the ambulance. Id. ¶¶ 4-8. Like the New 7 1 Mexico statute, Oklahoma’s specifies that “[o]nly” certain categories of individuals 2 are qualified to withdraw blood to determine alcohol or other intoxicants. Id. ¶ 15. 3 Because an EMT was not among those persons specifically listed in the statute to 4 withdraw blood, the Oklahoma Court of Appeals concluded that the blood test results 5 could not be used as evidence to revoke the defendant’s driver’s license. Id. ¶ 22. 6 {16} Similarly, in People v. Reynolds, 749 N.Y.S.2d 687, 690-91, (2002) (non- 7 precedential), since the EMT was not acting “under the supervision and at the 8 direction of a physician” when he withdrew the defendant’s blood in the emergency 9 room, as required by the applicable statute, the results were held not admissible in the 10 defendant’s trial for driving while intoxicated, vehicular manslaughter, and other 11 charges. 12 {17} In Bortnem v. Commissioner of Public Safety, 610 N.W.2d 703, 704 (Minn. Ct. 13 App. 2000), a police officer who received several hundred hours of training, 14 including 100-200 blood draws, to obtain his state certification as an “emergency 15 medical technician paramedic,” withdrew the driver’s blood at the police station 16 following his arrest for DWI. Like our statute, the Minnesota statute states that “only” 17 certain individuals may withdraw blood to determine the presence of alcohol or drugs, 18 including a “physician’s trained mobile intensive care paramedic.” The court 19 determined that the blood draw was not authorized because notwithstanding his 8 1 training and experience, the officer was not a paramedic as defined in the statute. Id. 2 at 705-706.To conclude otherwise would require reading the words “physician’s,” 3 “trained,” “mobile”, “intensive”, and “care” out of the statute. Id. 4 {18} We construe Section 66-8-1033 in the same manner as the foregoing cases: 5 according to the language used, according to their grammatical sense, and consistent 6 with other existing statutes. A physician is clearly qualified under the statute. The 7 phrase which follows refers to two types of nurses: a “licensed professional nurse” 8 or a “licensed practical nurse.” We arrive at this conclusion because the Nursing 9 Practice Act, NMSA 1978, §§ 61-3-1 to -31(1968, as amended through 2014), has 10 these two classes of nurses. A registered nurse is a “licensed professional nurse.” 11 Such an individual is a nurse who “practices professional registered nursing” and is 12 entered in the “register of licensed nurses.” Section 61-3-3(N), (O) (defining 13 “professional registered nursing” and “registered nurse”). In turn, a “licensed 12 13 14 15 16 17 18 19 20 21 22 3 Section 66-8-103 in its entirety states: Only a physician, licensed professional or practical nurse or laboratory technician or technologist employed by a hospital or physician shall withdraw blood from any person in the performance of a blood-alcohol test. No such physician, nurse, technician or technologist who withdraws blood from any person in the performance of a blood-alcohol test that has been directed by any police officer, or by any judicial or probation officer, shall be held liable in any civil or criminal action for assault, battery, false imprisonment or any conduct of any police officer, except for negligence, nor shall any person assisting in the performance of such a test, or any hospital wherein blood is withdrawn in the performance of such a test, be subject to civil or criminal liability for assault, battery, false imprisonment or any conduct of any police officer, except for negligence. 9 1 practical nurse” is “a nurse who practices licensed practical nursing” and is entered 2 in the “register of licensed practical nurses.” Section 61-3-3(I), (J) (defining “licensed 3 practical nurse” and “licensed practical nursing”).These two classes are followed by 4 “or” to refer to two additional categories: a “laboratory technician, or technologist 5 employed by a hospital or physician.” Section 66-8-103. Because we have found no 6 applicable separate statutory definition for a “laboratory technician” and given the 7 structure of the phrase, it appears that a laboratory technician must be employed by 8 a hospital or physician to qualify. However, that question is not before us in this case. 9 {19} We therefore conclude that Section 66-8-103 sets forth the only five categories 10 of individuals authorized to withdraw blood pursuant to the Implied Consent Act: (1) 11 a physician; (2) a licensed professional nurse; (3) a licensed practical nurse; (4) a 12 laboratory technician (who must be employed by a hospital or physician); and (5) a 13 technologist (who must be employed by a hospital or physician).There is no separate 14 category of a “licensed professional,” as urged by the State. Our conclusion is 15 buttressed by the second sentence of Section 66-8-103, which refers to “such 16 physician, nurse, technician or technologist” as being exempt from certain criminal 17 and civil liabilities. This sentence tells us that the Legislature was referring only to 18 these categories and that it did not intend to include a “licensed professional.” We 19 therefore hold that a “licensed professional” is not a separate category of individual 10 1 authorized to draw a blood sample for alcohol or drug content under the Implied 2 Consent Act, and since Ms. Andavazo does not satisfy any of the categories that are 3 listed as the “only” ones qualified to draw blood samples she is not qualified under 4 the Implied Consent Act. 5 {20} Even if we were able to accept the State’s argument for a separate category of 6 a “licensed professional,” Ms. Andavazo’s license as an EMT does not qualify her to 7 draw blood to determine its alcohol or drug content under the Implied Consent Act. 8 Ms. Andavazo is employed by American Medical Response (AMR), an ambulance 9 company licensed by the State of New Mexico. AMR is approved by the Department 10 of Health as a “certified emergency medical service” under the Emergency Medical 11 Services Act, NMSA 1978, Sections 24-10B-1 to -7 (1983, as amended through 12 2014). See §§ 24-10B-3(E), (F), and (H) (defining “certified emergency medical 13 service” in pertinent part as an organization approved by the Department of Health 14 to provide “emergency services”). The Emergency Medical Services Act in turn 15 defines “emergency medical services” as “the services rendered by providers in 16 response to an individual’s need for immediate medical care to prevent loss of life or 17 aggravation of physical or psychological illness or injury.” Section 24-10B-3(K). 18 {21} Within this statutory framework, Ms. Andavazo is licensed by the Department 19 of Health to provide “emergency medical services” as an “emergency medical 11 1 technician,” that is, “a provider who has been licensed by the department to provide 2 patient care.” Section 24-10B-3(N), -5(A) (providing that the Department of Health 3 shall adopt licensure requirements “for all persons who provide emergency medical 4 services within the state”). Specifically, Ms. Andavazo is certified as an EMT5 Intermediate (EMT-I) by the Department of Health. As such, she is allowed to 6 perform various skills, techniques, and procedures, and to administer medications, 7 with “medical director approval,” all of which “are considered advanced life support.” 8 7.27.11.8(C) NMAC (8/14/2014).2 One of the procedures Ms. Andavazo is allowed 9 to perform with “medical director approval” is blood drawing. 7.27.11.8(M)(2)(a)(vii) 10 NMAC. 11 {22} The statutory and regulatory provisions therefore allow Ms. Andavazo to 12 perform blood drawing, but only in the context of providing “emergency medical 13 services” under the Emergency Medical Services Act; that is, services rendered “in 14 response to an individual’s need for immediate medical care to prevent loss of life or 15 aggravation of physical or psychological illness or injury.” Section 24-10B-3(K). 16 Blood draws to determine the content of alcohol or drugs in blood under the Implied 17 Consent Act do not fall under the scope of Ms. Andavazo’s license as an EMT-I. 2 18 In addition, it must be documented that the EMT “has been appropriately trained,” and 19 the EMS provider must have a signed authorization from the service’s medical director on file at 20 its headquarters or administrative offices.7.27.11.8(C) NMAC. 12 1 Moreover, her training as an EMT-I does not include the protocols for performing 2 blood draws that comply with the Scientific Laboratory Division regulations of the 3 Department of Health under the Implied Consent Act. Accordingly, Ms. Andavazo’s 4 EMT-I certification did not authorize her to draw blood for the purpose of 5 determining its alcohol or drug content. See Greaves v. N. Dakota State Highway 6 Comm’r, 432 N.W.2d 879, 882-83 (N.D. 1988) (concluding that an EMT-I who had 7 authority to provide pre-hospital emergency care consistent with the skills possessed 8 by an EMT-I, which included taking blood draws, did not include authority to 9 withdraw blood for the purpose of determining its alcohol content). 10 {23} A predicate for the admission of a blood test result in a DWI case is that the test 11 be performed “pursuant to the Implied Consent Act.” Section 66-8-110(A). The State 12 failed to meet its burden of proving that Defendant’s blood was drawn by a person 13 authorized to do so under Section 66-8-103, and the results of the test are therefore 14 inadmissible. See Price v. State, 498 S.E.2d 262, 263 (Ga. 1998) (stating that “[i]n 15 order to admit results of a blood test showing a defendant’s blood alcohol level, the 16 state must prove that the blood was withdrawn by a “qualified” person under the 17 applicable statute.); City of Salina v. Martin, 849 P.2d 1010, 1011 (Kan. Ct. App. 18 1993) (affirming an order suppressing results of a blood test in a DWI prosecution 19 because the state failed to satisfy its burden of proving that the person who withdrew 13 1 the defendant’s blood was qualified to do so under the applicable statute); Cavazos 2 v. State, 969 S.W.2d 454, 457 (Tex. App. 1998) (holding that results of a blood test 3 in an intoxication manslaughter case were inadmissible because the state failed to 4 meet its burden of proving that the blood was withdrawn by a person qualified to do 5 so under the applicable statute). 6 {24} In this case, Defendant’s blood was drawn by a person who was not qualified 7 to do so, and in accordance with our analysis, the district court properly suppressed 8 the test results on this basis. Section 66-8-103 has a two-fold purpose: to insure the 9 safety and protection of the person whose blood is drawn; and to insure the reliability 10 of the sample. See Steere Tank Lines, Inc. v. Rogers, 1978-NMSC-049, ¶ 6, 91 N.M. 11 768, 581 P.2d 456. Compliance with Section 66-8-103 advances both of these 12 purposes. In light of our holding, it is not necessary for us to address whether the test 13 results were properly suppressed, because the protocols and contents of the SLD 14 blood draw kit were not followed and used. 15 III. CONCLUSION 16 {25} The order of the district court is affirmed. 17 {26} IT IS SO ORDERED. 18 ________________________________ 14 1 MICHAEL E. VIGIL, Chief Judge 2 WE CONCUR: 3 ________________________________ 4 RODERICK T. KENNEDY Judge 5 ________________________________ 6 M. MONICA ZAMORA, Judge 15

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