370 P.3d 791
N.M. Ct. App.2016Background
- Defendant was arrested for DWI after a head-on collision; he consented to a blood draw after an Implied Consent advisory.
- An EMT (Denise Andavazo) working in the ambulance drew the defendant’s blood at the officer’s request, using an IV catheter and syringe from the ambulance and transferring the sample into SLD-approved vacuum tubes; she did not use the kit needle or read kit instructions.
- The Scientific Laboratory Division (SLD) received and tested the sample, finding THC metabolites but no alcohol.
- Defendant moved to suppress the blood-test results, arguing the EMT was not authorized under Section 66-8-103 and that the draw was improperly performed; the district court granted suppression on both grounds.
- On appeal, the court considered whether the Implied Consent Act authorizes EMTs to withdraw blood for alcohol/drug testing and whether the draw complied with required protocols.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Section 66-8-103 authorizes EMTs to withdraw blood for Implied Consent testing | State: statute’s phrase “licensed professional” creates a separate category that includes licensed EMTs | Defendant: statute lists only five specific categories (physician, licensed professional nurse, licensed practical nurse, lab technician, technologist) and does not include EMTs | EMTs are not authorized under Section 66-8-103; suppression affirmed |
| Whether Section 66-8-103 applies to drug as well as alcohol testing | State: §66-8-103 mentions “blood-alcohol test,” so it may not cover drugs | Defendant: §66-8-109(A) makes §66-8-103 the authorization for blood draws for alcohol or drug content | Statutory reading of §66-8-109(A) makes §66-8-103 applicable to both alcohol and drug testing |
| Whether an EMT’s licensure (EMT‑I) authorizes blood draws for Implied Consent purposes even if “licensed professional” were a separate category | State: EMT licensure makes EMTs “licensed professionals” permitted to draw blood | Defendant: EMT licensure permits blood draws only in the scope of emergency medical services and not under the Implied Consent Act; training and protocols differ from SLD requirements | Even if “licensed professional” existed, EMT‑I certification does not authorize withdrawals for Implied Consent testing |
| Whether the sample was drawn in compliance with SLD/Implied Consent protocols | State: EMT used SLD tubes and sample was tested by SLD | Defendant: EMT did not follow SLD kit procedure (did not use kit needle or instructions), risking sample integrity | Court did not need to rule on this because lack of statutory authority rendered the test inadmissible; noted protocols were not followed |
Key Cases Cited
- State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (N.M. Ct. App.) (interpreting categories in §66-8-103 and addressing licensing language)
- State v. Wiberg, 107 N.M. 152, 754 P.2d 529 (N.M. Ct. App.) (applying grammatical rules and last-antecedent doctrine to §66-8-103)
- State v. Nez, 148 N.M. 914, 242 P.3d 481 (N.M. Ct. App.) (finding evidence that a registered nurse in a hospital ER satisfied §66-8-103)
- Andrews v. State ex rel. Dept. of Pub. Safety, 320 P.3d 27 (Okla. Civ. App.) (EMT not among statutorily listed persons; blood draw by EMT not allowed for license-revocation use)
- Bortnem v. Comm’r of Pub. Safety, 610 N.W.2d 703 (Minn. Ct. App.) (refusing to broaden statutorily defined categories despite extensive training of the individual)