STATE OF NEW MEXICO v. LUIS ALFREDO GARCIA
NO. 33,425
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
January 25, 2016
Fernando R. Macias, District Judge
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Yvonne M. Chicoine, Assistant Attorney General
Santa Fe, NM
for Appellant
Jorge A. Alvarado, Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM
for Appellee
OPINION
VIGIL, Chief Judge.
{1} The question presented in this case is whether an emergency medical technician (EMT) is authorized to draw blood for the purpose of determining its alcohol or drug content under the Implied Consent Act,
I. BACKGROUND
{2} State Police Officers Bernal and Robles were dispatched to a head-on collision on NM 404 near the Texas border. Officer Bernal encountered the two cars involved in the accident, and his on-scene investigation indicated that Defendant crossed over the centerline and struck the other vehicle, causing its occupants serious injuries. Bernal interviewed Defendant at the scene and observed that Defendant had bloodshot, watery eyes, smelled of marijuana, and demonstrated indicators of being under the influence of marijuana. Officer Bernal asked Defendant if he had smoked marijuana, which he denied. Officer Bernal placed Defendant under arrest for driving while intoxicated, and read the Implied Consent Act advisory to Defendant. Defendant consented to a blood draw.
{3} Defendant, who was also injured in the accident, was placed inside an ambulance for transport to a trauma center in El Paso, Texas. Defendant was being treated by EMT Denise Andavazo inside the ambulance and while she was getting ready to administer Defendant an intravenous (IV) solution, Officer Robles asked her to draw a blood sample from Defendant, and she agreed.
{4} Officer Robles gave Ms. Andavazo an unexpired Scientific Laboratory Division (SLD) approved blood draw kit to do the blood draw. SLD-approved blood draw kits include everything that is needed for a blood draw to ensure continuity and standardization, and to avoid compromising the accuracy and integrity of blood samples. The kits contain instructions, paperwork, an iodine cleaning pad, a needle with attached tube, and two gray-topped, sterile vacuum tubes containing sodium fluoride—a white powder preservative.
{5} To avoid compromising Defendant‘s care, which was her first priority, Ms. Andavazo did not read the instructions, and she did not use the needle with attached tube provided in the SLD-approved kit. Instead, she used a sterile IV catheter from the ambulance‘s supply to puncture Defendant‘s vein and a sterile syringe from the ambulance‘s supply to draw Defendant‘s blood through the IV catheter and then transferred Defendant‘s blood sample to the two vacuum tubes in the SLD-approved kit. Ms. Andavazo then connected the IV to Defendant and the ambulance transferred him to the hospital. Ms. Andavazo did not use the needle
{6} Defendant was charged by indictment with causing great bodily harm by vehicle while driving under the influence of alcohol and drugs and failure to maintain a traffic lane.
{7} Defendant filed a motion to suppress the results of the blood test on grounds that Ms. Andavazo was not qualified to perform blood draws under
II. ANALYSIS
A. Standard of Review
{8} “We review rulings upon the admission or exclusion of evidence under an abuse of discretion standard, but when there is no evidence that necessary foundational requirements are met, an abuse of discretion occurs.” State v. Gardner, 1998-NMCA-160, ¶ 5, 126 N.M. 125, 967 P.2d 465 (citation omitted). This case requires us to engage in statutory interpretation to determine what the appropriate foundation is for admitting the results of blood tests to determine the content of alcohol or drugs under the Implied Consent Act. We do so under a de novo standard of review. State v. Bowden, 2010-NMCA-070, ¶ 9, 148 N.M. 850, 242 P.3d 417.
B. Qualifications Under Section 66-8-103
{9} The Implied Consent Act states that “[o]nly the persons authorized by Section 66-8-103... shall withdraw blood from any person for the purpose of determining its alcohol or drug content.”
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.
In interpreting
{10} The State first argues that because
{11}
{13} In State v. Wiberg, 1988-NMCA-022, ¶ 10, 107 N.M. 152, 754 P.2d 529, we stated that “[s]tatutes are to be read and understood primarily according to their grammatical sense, unless it is apparent that the [Legislature] intended something different.” We utilized the “last antecedent doctrine” to conclude that the phrase “employed by a hospital or physician” applied to the preceding phrase “laboratory technician or technologist” and not to “nurse,” the more remote term, as the defendant contended. Id. ¶¶ 7, 11 (internal quotation marks and citation omitted). We therefore held, ”
{14} Finally, in State v. Nez, 2010-NMCA-092, ¶¶ 11, 13-14, 148 N.M. 914, 242 P.3d 481, we concluded that the evidence was sufficient to establish the blood drawer‘s identity in a hospital emergency room as a registered nurse, and therefore, that she was qualified to withdraw the defendant‘s blood under
{15} In Andrews v. State ex rel. Department of Public Safety, 2014 OK CIV APP 19, 320 P.3d 27 (cert. denied Jan 27, 2014), the arresting officer observed several indicators of intoxication while investigating a single car accident, and at his request, an EMT took the defendant‘s blood inside the ambulance. Id. ¶¶ 4-8. Like the New Mexico statute, Oklahoma‘s specifies that “[o]nly” certain categories of individuals are qualified to withdraw blood to determine alcohol or other intoxicants. Id. ¶ 15. Because an EMT was not among those persons specifically listed in the statute to withdraw blood, the Oklahoma Court of Appeals concluded that the blood test results could not be used as evidence to revoke the defendant‘s driver‘s license. Id. ¶ 22.
{16} Similarly, in People v. Reynolds, 749 N.Y.S.2d 687, 690-91, (2002) (non-precedential), since the EMT was not acting “under the supervision and at the direction of a physician” when he withdrew the defendant‘s blood in the emergency room, as required by the applicable statute, the results were held not admissible in the defendant‘s trial for driving while intoxicated, vehicular manslaughter, and other charges.
{17} In Bortnem v. Commissioner of Public Safety, 610 N.W.2d 703, 704 (Minn. Ct. App. 2000), a police officer who received several hundred hours of training, including 100-200 blood draws, to obtain his state certification as an “emergency medical technician paramedic,” withdrew the driver‘s blood at the police station following his arrest for
{18} We construe
practical nurse” is “a nurse who practices licensed practical nursing” and is entered in the “register of licensed practical nurses.”
{19} We therefore conclude that
{20} Even if we were able to accept the State‘s argument for a separate category of a “licensed professional,” Ms. Andavazo‘s license as an EMT does not qualify her to draw blood to determine its alcohol or drug content under the Implied Consent Act. Ms. Andavazo is employed by American Medical Response (AMR), an ambulance company licensed by the State of New Mexico. AMR is approved by the Department of Health as a “certified emergency medical service” under
{21} Within this statutory framework, Ms. Andavazo is licensed by the Department of Health to provide “emergency medical services” as an “emergency medical technician,” that is, “a provider who has been licensed by the department to provide patient care.”
{22} The statutory and regulatory provisions therefore allow Ms. Andavazo to perform blood drawing, but only in the context of providing “emergency medical services” under the Emergency Medical Services Act; that is, services rendered “in response to an individual‘s need for immediate medical care to prevent loss of life or aggravation of physical or psychological illness or injury.”
Moreover, her training as an EMT-I does not include the protocols for performing blood draws that comply with the Scientific Laboratory Division regulations of the Department of Health under the Implied Consent Act. Accordingly, Ms. Andavazo‘s EMT-I certification did not authorize her to draw blood for the purpose of determining its alcohol or drug content. See Greaves v. N. Dakota State Highway Comm‘r, 432 N.W.2d 879, 882-83 (N.D. 1988) (concluding that an EMT-I who had authority to provide pre-hospital emergency care consistent with the skills possessed by an EMT-I, which included taking blood draws, did not include authority to withdraw blood for the purpose of determining its alcohol content).
{23} A predicate for the admission of a blood test result in a DWI case is that the test be performed “pursuant to the Implied Consent Act.”
{24} In this case, Defendant‘s blood was drawn by a person who was not qualified to do so, and in accordance with our analysis, the district court properly suppressed the
III. CONCLUSION
{25} The order of the district court is affirmed.
{26} IT IS SO ORDERED.
MICHAEL E. VIGIL, Chief Judge
WE CONCUR:
RODERICK T. KENNEDY Judge
M. MONICA ZAMORA, Judge