June 12, 2019- State of New Mexico v. Michael Jaramillo, No. A-1-CA-37561

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellant,
4 	V. 	NO. A-1-CA-37561
5 MICHAEL JARAMILLO,
6 	Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 John A. Dean, Jr., District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe , NM
11 	John Kloss, Assistant Attorney General
12 	Albuquerque, NM
13 	for Appellant
14 	Bennett J. Baur, Chief Public Defender
15 	Caitlin C.M. Smith, Assistant Appellate Defender
16 	Santa Fe, NM
17 	for Appellee
18 	MEMORANDUM OPINION
19 	VANZI, Judge.
20 	{I} 	The State appeals the district court's order excluding the test results of a blood
21 	draw performed pursuant to the Implied Consent Act, NMSA 1978, §§ 66-8-105 to
22 	-112 ( 1978, as amended through 2015), on the ground that the blood drawer was not
23 	authorized to draw Defendant Michael Jaramillo' s blood. Relying on State v. Adams,
Court of Appeals of New Mexico
Filed 6/12/2019 10:57 AM

1 2019-NMCA- _, _ 	P.3d _ 	(No. A-l-CA-36506, May 21, 2019), filed after
2 briefing was complete, we reverse.
3 	BACKGROUND
4 	{2} 	After Defendant was arrested for driving while intoxicated, his blood was
5 drawn for testing, pursuant to a warrant, by Julian Bitsuie, an Emergency Room
6 Technician employed by the San Juan Regional Medical Center (the Medical
7 Center). Charged with one count of aggravated driving while intoxicated and one
8 count of driving with a suspended license, see NMSA 1978, § 66-8-102(D)(3)
9 (2016); NMSA 1978, § 66-5-39(A) (2013), Defendant moved to exclude the blood
10 test results on the ground that Bitsuie did not fall within the categories of individuals
11 	authorized to draw blood under NMSA 1978, Section 66-8-103 	( 1978), which
12 	provides 	that 	"[ o]nly 	a physician, 	licensed professional 	or practical 	nurse 	or
13 	laboratory technician or technologist employed by a hospital or physician shall
14 withdraw blood from any person in the performance of a blood-alcohol test." See
15 	also § 66-8-109(A) ("Only the persons authorized by Section 66-8-103 ... shall
16 withdraw blood from any person for the purpose of determining its alcohol or drug
17 	content."). Relying on State v. Garcia, 2016-NMCA-044, 370 P.3d 791, Defendant
18 	argued that the district court was required to exclude the blood test results because
19 	Bitsuie, who was licensed as an emergency medical technician-basic (EMT-B),did
20 not fall into any of these categories. In response, the State argued that Bitsuie ' s
2

1 training and experience he received while working at the Medical Center qualified
2 him to draw blood for purposes of Section 66-8-103.
3 	{3} 	At the evidentiary hearing on the motion, Bitsuie testified about his training
4 and experience, as well as the procedures for legal blood draws. More detail about
5 his testimony is included below. The district court granted Defendant' s motion to
6 suppress, and the State now appeals the suppression of the blood test results. See
7 NMSA 1978, § 39-3-3(B)(2) (1972) ("In any criminal proceeding in district court
8 an appeal may be taken by the state .. . within ten days from a decision or order of
9 a district court suppressing or excluding evidence.").
10 DISCUSSION
11 	{4} 	"We review the [district] court' s decision to exclude or admit evidence for an
12 	abuse of discretion." State v. Hanson , 2015-NMCA-057, ,r 5, 348 P.3d 1070. "A
13 	[district] court abuses its discretion when it exercises its discretion based on a
14 misunderstanding of the law." State v. Lente, 2005-NMCA-111, ,r 3, 138 N.M. 312,
15 	119 P.3d 737. "We review de novo whether the district court's decision to exclude
16 evidence was based upon a misapprehension of the law." State v. Romero, 2000-
17 NMCA-029, 	,r 6, 	128 	N.M. 	806, 999 	P.2d 	1038. 	We 	defer 	to 	"the 	district
18 	court's findings 	of historical fact 	so 	long as they are supported by substantial
19 	evidence." State v. Simpson, 2016-NMCA-070, ,r 8,388 P.3d 277 (internal quotation
20 marks and citation omitted).
3

1 {5} 	On appeal, the parties repeat the arguments advanced below. 1 We conclude
2 that our decision in Adams requires reversal. We briefly summarize Adams and refer
3 the parties to that opinion for a full discussion of Garcia and construction of Section
4 66-8-103. In Adams, addressing arguments nearly identical to those here, we rejected
5 the defendant's argument that Garcia stated a categorical rule that EMTs are never
6 authorized under Section 66-8-103 to draw blood for law enforcement purposes.
7 Adams, 2019-NMCA-_, 1 22 ("Garcia does not stand for the proposition that
8 Section 66-8-103 prohibits all EMTs from drawing blood."). We noted that the facts
9 and arguments presented in Garcia presented a particular question, to wit: do EMTs
10 	fall within a sixth category of authorized persons under Section 66-8-103 	as a
11 	"licensed professional"? Adams, 2019-NMCA-_, 122. Given Garcia's analysis
12 	of this question, we concluded that Garcia merely stood for the proposition that an
13 	EMT license alone is insufficient to permit a person to draw blood under Section
14 	66-8-103. Adams, 2019-NMCA-_, 122. Because the State in Adams did not argue
15 	that the EMT was qualified as a result of her license, but rather that the EMT was
1 To the extent Defendant argues that the State did not preserve its argument
that Bitsuie qualifies as a laboratory technician under Section 66-8-103, we disagree.
The State argued in the district court that Bitsuie was qualified to perform legal blood
draws based on his training and experience in addition to his EMT-B training, and
the district court's findings and conclusions indicate that it considered whether
Bitsuie's additional training was sufficient to satisfy the statute in any capacity. See
State v. Hill, 2001-NMCA-094, 17,131 N.M. 195, 34 P.3d 139 (holding that an
issue was preserved where "the district court was sufficiently alerted to th[ e] issue"
by the appellant's arguments).
4

1 qualified because of her additional training and experience, we concluded that
2 	Garcia's 	analysis did not apply. 	Adams, 	2019-NMCA-_, 	~ 21 	(stating that
3 different facts and arguments "warrant a different analysis than that of Garcia").
4 Additionally, we noted that the facts surrounding the blood draw distinguished
5 Adams from Garcia. Adams, 2019-NMCA-_, ~ 23.
6 	{6} 	In keeping with Adams, we conclude that Garcia does not govern our analysis
7 here because this matter is distinguishable from Garcia, both on the legal question
8 presented and on the facts surrounding the blood draw. As to the legal question, the
9 State argues not that Bitsuie is qualified to draw blood under Section 66-8-103
10 because he is licensed as an EMT, but that the Legislature intended for people with
11 	Bitsuie's skills and experience to fall within the category "laboratory technician" for
12 purposes of Section 66-8-103. See Adams, 2019-NMCA-_, ~ 22 (stating that
13 	Garcia addressed "whether the EMT' s license would qualify her under the asserted
14 (but rejected) category of 'licensed professional,' not whether an EMT with greater
15 	experience 	and 	training 	could 	potentially 	qualify 	under 	another 	enumerated
16 category"). As to the distinguishing facts, here Bitsuie was employed by the Medical
17 	Center and drew Defendant's blood in a hospital setting, not in the course of
18 	emergency care, as was the case in Garcia. Compare Adams, 2019-NMCA-_,
19 ~ 23, with Garcia, 2016-NMCA-044, ~~ 3-5. In addition, unlike Garcia, there is no
20 dispute that Bitsuie used the Scientific Laboratory Division (SLD)-approved test kit
5

1 to ensure the reliability of the testing when drawing blood for law enforcement
2 personnel. Compare Adams, 2019-NMCA-_, ,r 2, with Garcia, 2016-NMCA-044,
3 ,r 5; see§ 66-8-107 (providing that a test of blood or breath must be approved by the
4 	SLD). Moreover, as we discuss next, Bitsuie had received training in standard and
5 legal blood draws in addition to his EMT training. See Adams, 2019-NMCA-_,
6 ,r 21 ("Nor is there any indication that the Garcia EMT had any additional training
7 or experience in drawing blood that would qualify her under any other category listed
8 	in Section 66-8-103.").
9 	{7} 	Having concluded that Adams-not Garcia-controls here, we proceed to
10 	determine 	whether 	Bitsuie 	was 	qualified 	under 	Section 	66-8-103 	to 	draw
11 	Defendant's blood for testing. 	In Adams, 	we 	construed 	Section 66-8-103 	and
12 	concluded that, 	by authorizing an undefined category of non-licensed medical
13 	personnel employed by a hospital or physician to draw blood, such as laboratory
14 technicians, "our Legislature was adopting approved medical practice." Adams,
15 	2019-NMCA-_, ,r 27. "In other words, an individual qualifies as a laboratory
16 technician for purposes of Section 66-8-103 so long as a hospital or physician
17 determined that []he was qualified to perform blood draws in accordance with
18 	accepted 	medical 	standards 	based 	on 	h[is] 	demonstrable 	skills, 	training, 	and
19 experience." Adams, 2019-NMCA-_, ,r 27.
6

1 {8} 	The district court found that Bitsuie held an EMT-Basic certification and that
2 Bitsuie "received training to perform medical venipuncture under the guidance and
3 direction of a physician or nurse as part of his position as an Emergency Room
4 Technician, (he made twenty supervised blood draws)." It found that Bitsuie had
5 been instructed on how to complete a legal blood draw using the SLD-approved kit.
6 However, it also found that Bitsuie "only received instructions on how to do '(b ]lood
7 	[a]lcohol' blood draws by on-the- job training, (his co-workers told him how to fill
8 out the hospital required paperwork and how to work with the officer), from police
9 officers and from reading the instruction provided with the SLD blood kit." The
10 district 	court 	concluded 	that 	the 	lack 	of "formal 	training" 	by 	the 	SLD 	was
11 	determinative, stating,
12
13
14
15
16
As an EMT-Basic employed as an Emergency Room Technician with
no formal training from the [SLD] in legal blood-alcohol venipuncture
and specimen collection, Julian Bitsuie did not qualify as a person
authorized to draw blood under the Implied Consent Act, and as such,
this blood test was not performed pursuant to the Implied Consent Act.
17 The district court also noted in its conclusions of law that "[t]he [EMT] 	who
18 	withdrew [the defendant's blood in Garcia] was an EMT Intermediate, a higher-
19 	level of certification requiring more education and training than the EMT-Basic
20 	certification possessed by Mr. Bitsuie[.]"
21 	{9} 	The district court's conclusions in this regard, which disregard its own earlier
22 	findings, 	are not supported by law. First, we see nothing in Section 66-8-103
7

1 indicating that authorization to draw blood under the Implied Consent Act depends
2 on formal training to do so by the SLD and Defendant does not cite, nor did the Court
3 find, any authority for this proposition. See State v. Vigil-Giron, 2014-NMCA-069,
4 	~ 60, 327 P.3d 1129 ("[G]iven no cited authority, we assume no such authority
5 exists[.]"). Second, as explained above and in Adams, the facts in Garcia are readily
6 distinguishable from situations, like here, where the blood drawer is both certified
7 as an EMT and is employed, trained, and supervised by a hospital to draw blood.
8 Hence, the district court' s reliance on the fact that Bitsuie held a lower-level
9 certification than the EMT in Garcia was misplaced. Finally, we held in Adams that
10 authorization under Section 66-8-103 depends on the training and qualifications of
11 	the person drawing blood. Adams, 2019-NMCA-_, ~ 27. Here, the district court
12 	found that Bitsuie learned how to perform both standard and legal blood draws as
13 	part of his job at the Medical Center and that he "utilized a standard [SLD-]approved
14 blood collection kit in drawing Defendant's blood and followed the instructions
15 	contained in it[.]" We defer to these findings of fact because they are supported by
16 the evidence. See Simpson, 2016-NMCA-070, ~ 8. Based on the district court's
17 	findings, we conclude that Bitsuie qualified as a laboratory technician under Section
18 	66-8-103. See Adams, 2019-NMCA-_, ~ 29 (holding that the emergency room
19 technician/EMT-Intermediate there was qualified under Section 66-8-103 where she
20 "received training from other technicians and nurses in drawing blood, and the
8

1 Medical Center determined she was competent to perform draws unsupervised" and
2 the "blood draw was properly performed in accordance with the SLD-approved
3 blood draw kit instructions"). As the district court excluded the blood test results
4 based upon a misapprehension of Section 66-8-103 and our case law, the district
5 court abused its discretion. See Lente, 2005-NMCA-l l l , ,-r 3.
6 CONCLUSION
7 	{to} 	For the foregoing reasons, we reverse the district court's order excluding
8 Defendant's blood test results and remand for further proceedings consistent with
9 this opinion.
10 	{tt} 	IT IS SO ORDERED.
11
12
13 	WE CONCUR:
14~.~
15 	J. MILES HANISEE, Judge
. MEDINA, Judge
9