OPINION
{1} This сase comes to us on remand from our Supreme Court in State v. Nez, No. 31,703 for further consideration in light of State v. Bullcoming,
{2} To set the stage, we first discuss Dedman, and we then discuss Defendant’s arguments on appeal in the present case and the decision contained in our memorandum opinion. Following that, we discuss Bullcoming (and only touch on Aragon), which necessarily includes discussion of Melendez-Diaz v. Massachusetts, — U.S. —,
Dedman
{3} In Dedman, the prosecution contended that a veni-puncture method used to draw a blood sample ultimately tested for BAC “did not affect the admissibility of the blood alcohol report” and also that the unavailability of the nurse who drew the blood sample to testify at trial did not require the exclusion of the report on Sixth Amendmеnt confrontation grounds.
Defendant’s Arguments on Appeal and Our Memorandum Opinion
{4} In the present casе, Defendant argued on appeal that the district court erred in admitting a report that contained the results of a test of a sample of his blood in that the State failed to show that the blood was properly drawn under the Implied Consent Act and Department of Health regulations by a qualified person. Nez, No. 26,811, slip op. at 23. Defendant further argued that the report constituted impermissible hearsay that violated the Confrontation Clause because the drawer of the blood was not present at trial and Defendant did not have an opportunity to cross-examine that person about her qualifications and the manner in which the blood sample was taken. Id. We noted in our memorandum opinion that, in Dedman, our Supreme Court held that the absence of the blood drawer from triаl and the lack of testimony from the blood drawer as to the method in which he or she drew the blood did not affect the admissibility of the report. Nez, No. 26,811, slip op. at 24; see Dedman,
Bullcoming and Melendez-Diaz
{5} Based on Melendez-Diaz, in Bullcoming and Aragon our Supreme Court held that crime laboratory reports of blood-alcohol test results {Bullcoming) and chemical forensic reports of a substance determined to be methamphetamine {Aragon) were testimonial for the purposes of the Confrontation Clause. Bullcoming,
{6} For our purposes on remand, only Bullcoming, which overruled Dedman, is pertinent. See Bullcoming,
{7} In Melendez-Diaz, the prosecution submitted sworn certificates that the Court considered to be affidavits showing the results of forensic analysis establishing a substance’s composition as cocaine.
{8} Further, the Court in Melendez-Diaz stated that “[a]bsent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be confronted with the analysts at trial.”
{9} Based on Melendez-Diaz, the Court in Bullcoming held that the blood-alcohol report in the case was testimonial and overruled Dedman’s holding that laboratory reports were non-testimonial. Bullcoming,
{10} Recognizing that the report also contained information regarding chain of custody, the Court in Bullcoming referred to Melendez-Diaz’s footnote regarding chain of custody evidence and the confrontation right, and the Court in Bullcoming stated that Melendez-Diaz “indiсated that chain of custody information may not be testimonial under the Confrontation Clause.” Bullcoming,
Defendant’s Arguments and the Evidence
{11} In the present case, Defendant argued on appeal that our Supreme Court’s Dedman decision “was premised оn an unproven assumption, nowhere mentioned in the record proper of that case, that it was in fact a nurse, or another, meeting [NMSA 1978, Section 66-8-103 (1978) ]’s express requirements, who drew the defendant’s blood on the occasion in question.” Defendant noted that in cases prior to Dedman the Court had indulged in no such assumptions. Defendant argued that in the present case neither the officer nor the toxicologist who testified “was qualified to testify as to the manner in which the blood was drawn or to verify the accuracy with which the blood[ {drawer obtained the blood sample.” He argued further that “[tjhere was no testimony regarding the identity of the blood[ ]drawer that was not hearsay and absolutely no testimony regarding the person’s qualifications or whether the dual purposes of safety and reliability were met.”
{12} In short, Defendant’s position was that the State did not present any non-hearsay testimony sufficient to establish the method used to draw blood and the qualifications of the blood drawer and, therefore, the district court abused its discretion in admitting the report. More specifically, Defendant argued that the State failed to lay the necessary foundation to show compliance with Sеction 66-8-103 which reads, in part, that “[o]nly 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.” Defendant also argued that the State did not show as required by the law and regulations that the blood samples were collected “in the presence of the arresting officer or other responsible person who can authenticate the samples,” and “within two hours of arrest” and not using “[e]thyl alcohol ... as a skin antiseptic,” and preserving the sample in “an SLD-approved blood collection kit [that contains] two or more sterile tubes with sufficient sodium fluoride so that the final concentration shall contain not less than 1.0 percent sodium fluoride.” 7.33.2.12 NMAC (2/21/01), reprinted as amended in 7.33.2.15(A)(1), (2), (3) NMAC (4/30/10).
{13} At trial in the present case, Sergeant Kendall, a deputy with the McKinley County, New Mexico, Sheriffs Department testified as follows. The deputy investigated the vehicle crash in which Defendant was involved. One aspect of the investigation involved Defendant’s suspected intoxicated status and a possible vehiсular homicide. Deputy Kendall obtained a search warrant to extract Defendant’s blood. The blood was extracted at the Gallup, New Mexico, Indian Medical Center. The blood draw had to be done by a medical person. The deputy had an unused blood kit prepared for this purpose by the SLD. He also had a form that went with the blood kit titled “Report of Blood Alcohol Analysis.” Deрuty Kendall observed Defendant’s blood being drawn in the emergency room by medical personnel, namely, a nurse. He identified the completed report form, which contained his signature. The nurse also signed the report form as “Jolene Richardson, R.N.” Deputy Kendall testified that based upon his training and experience, “R.N.” is the abbreviation for “registered nurse.” Although he had not previously met the blood drawer, and although he did not have knowledge whether the blood drawer was licensed, Deputy Kendall testified to having no concern at all that this person may have been impersonating a nurse and observed that the nurse was appropriately dressed, had a stethoscope, and displayed from her uniform a Gallup Indian Medical Center identification tag which included her picture, name, and title. In drawing the blood, the nurse used the contents of the SLD-provided kit, including a non-alcohol based swab to clean the arm prior to the blood extraction. After the nurse inserted the needle into Defendant’s vein, she attached the first SLD-provided vacuum tube to the needle that drew out a sample of Defendant’s blood, handed that tube directly to Deputy Kendall, and then obtained another sample in the second SLD-provided vacuum tube, which was also handed directly to the deputy. Deputy Kendall labeled and sealed the two vials of blood and mailed the form and the kit containing the blood samples to the SLD.
Our Conclusions
{14} We hold that the foregoing evidence relating to the blood drawer’s identity and qualification and to the manner of drawing the blood satisfied the State’s foundation burden for admission of the report sufficient to withstand Defendant’s objection to admission of the report based on his view that the testimony did not establish the propriety of the blood draw and the qualification of the blood drawer. See Dedman,
{15} On the confrontation issue, in the present case a forensic toxicologist was qualified as an expert and testified that he received the kit containing Defendant’s blood, he checked the seals to assure they had not been tampered with, he tested Defendant’s BAC using a gas chromatograph, and he prepared his report. He also testified that Defendant’s blood sample came in a standard SLD blood kit, he checked the identifications on the specimen against the Report of Blood Alcohol Analysis form, and he identified the blood-drawer’s signature on the form as “Jolene Richardson, R.N.” and her employer “GIMC.” He further testified as to the recording of the results of the lab tests “via the computer and the gas chromatograph” after which “a reviewer ... reviews all the work [to] be sure that everything — all the criteria [have] been met.” In addition, he testified that the results were placed on the form, and he signed off on the form as an analyst for SLD. The toxicologist was thus available to be cross-examined regarding the operation of the testing machine and the SLD’s procedures. Defendant did not challenge the toxicologist’s testimony, nor does Defendant attack admission of the report on confrontation grounds based on the absence at trial of any SLD analyst.
{16} Under Bullcoming, a defendant’s confrontation right is not violated and a blood-alcohol report of the results of a machine-tested blood sample may be admitted where an otherwise qualified analyst testifies to the machine’s blood-test results that are recorded or transcribed by a testing analyst who acts merely as a scrivener. See
CONCLUSION
{17} We hold that Bullcoming does not change our conclusion in our April 20, 2009, memorandum opinion that the district court did not err by admitting the report of the test results of Defendant’s BAC into evidence. We therefore see no basis on which to change or overrule, and we affirm, this Court’s ultimate disposition in our April 20, 2009, memorandum opinion, reversing Defendant’s DWI conviction and remanding it to the district court with instructions to vacate Defendant’s conviction for DWI on double jeopardy grounds and affirming Defendant’s remaining convictions.
{18} IT IS SO ORDERED.