2019 New Mexico Statutes
Chapter 24 - Health and Safety
Article 1 - Public Health
Section 24-1-22 - Scientific laboratory division; testing methods; certification.

A. The scientific laboratory division of the department of health is authorized to promulgate and approve satisfactory techniques or methods to test persons believed to be operating a motor vehicle or a motorboat under the influence of drugs or alcohol and to issue certification for test operators and their instructors that shall be subject to termination or revocation at the discretion of the scientific laboratory division. The scientific laboratory division is further authorized to establish or approve quality control measures for alcohol breath testing and to establish or approve standards of training necessary to ensure the qualifications of individuals conducting these analyses or collections.

B. The scientific laboratory division shall establish criteria and specifications for equipment, training, quality control, testing methodology, blood-breath relationships and the certification of operators, instructors and collectors of breath samples.

C. All laboratories analyzing breath, blood or urine samples pursuant to the provisions of the Implied Consent Act [66-8-105 to 66-8-112 NMSA 1978] and the Boating While Intoxicated Act [66-13-1 to 66-13-13 NMSA 1978] shall be certified by the scientific laboratory division. The certification shall be granted in accordance with the rules and regulations of the scientific laboratory division and shall be subject to termination or revocation for cause.

History: Laws 1981, ch. 165, § 1; 2003, ch. 241, § 14.

Cross references. — For provisions authorizing the performance of a blood-alcohol test, see 66-8-103, 66-8-104 and 66-8-109 NMSA 1978.

The 2003 amendment, effective July 1, 2003, in Subsection A, substituted "department of health" for "department of health and environment"; and inserted "or a motorboat" following "motor vehicle"; and in Subsection C, inserted "and the Boating While Intoxicated Act" following "Implied Consent Act".

Failure to observe defendant for twenty minutes. — A breath alcohol test taken after the defendant was continuously observed for only fifteen minutes was not admissible in her criminal case for driving while intoxicated, because it did not comply with a department of health regulation requiring breath samples to be collected only after the subject has been under continuous observation for at least 20 minutes prior to collection of the first breath sample. State v. Gardner, 1998-NMCA-160, 126 N.M. 125, 967 P.2d 465, cert. denied, 126 N.M. 107, 967 P.2d 447.

Duty to make an accurate record. — The statutory duty of the state laboratory division to monitor and certify all blood-alcohol testing and to establish quality control measures by regulation imposes a duty on the state laboratory to make an accurate record of blood-alcohol test results that qualifies as a reliable business record. State v. Christian, 1995-NMCA-027, 119 N.M. 776, 895 P.2d 676, cert. denied, 119 N.M. 514, 892 P.2d 961.

Breath alcohol instruments treated differently than equipment for purposes of foundational requirements. — The legislature has delegated full authority to the scientific laboratory division (SLD) over the testing of persons believed to be DUI, including the establishment of criteria and specifications for equipment, quality control, testing methodology and standards, and the certification of breath alcohol instruments, operators, and instructors. SLD regulations impose extensive and explicit certification requirements on instruments, including that each individual instrument have a current certificate evidencing compliance with SLD regulations. In contrast, the only requirements for equipment stated in the regulations are that SLD approve and maintain a list of approved manufacturer's equipment. The regulations contain no requirement that SLD or certified instrument operators must confirm that each individual component of the breath alcohol instrument are SLD-approved before a breath alcohol test (BAT) is administered, and the regulations contain no indication that such individual confirmation is necessary to ensure the accuracy of the BAT result. State v. Hobbs, 2016-NMCA-022, cert. denied, 2016-NMCERT-002.

Legislature did not intend to create a statutory right when it enacted this section, or to make compliance with regulations promulgated under this section mandatory. State v. Watkins, 1986-NMCA-080, 104 N.M. 561, 724 P.2d 769, writ dismissed, 104 N.M. 522, 724 P.2d 231.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Authentication of blood sample taken from human body for purposes of determining blood alcohol content, 76 A.L.R.5th 1.

Authentication of blood sample taken from human body for purposes other than determining blood alcohol content, 77 A.L.R.5th 201.

Authentication of organic nonblood specimen taken from human body for purposes of analysis, 78 A.L.R.5th 1.