May 21, 2019- State of New Mexico v. Corey Talk, No. A-1-CA-36378

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-36378
5 	COREY TALK,
6 	Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 Karen L. Townsend, District Judge
9 	Hector H. Balderas, Attorney General
10 Marko D. Hananel , Assistant Attorney General
11 	Santa Fe, NM
12 	for Appellant
13 	Law Offices of Adrianne R. Turner
14 Adrianne R. Turner
15 	Albuquerque , NM
16 	for Appellee
17 	MEMORANDUM OPINION
18 	VANZI, Judge.
19 	{t} 	The State appeals the district court's order excluding the test results of a blood
20 	draw performed pursuant to the Implied Consent Act, NMSA 1978, §§ 66-8-105 to
21 	-112 ( 1978, as amended through 2015), on the ground that the blood drawer was not
22 	authorized to draw Defendant Corey Talk's blood. Relying on State v. Adams, 2 019-
Court of Appeals of New Mexico
Filed 5/21/2019 11:31 AM

1 NMCA-_, _ 	P.3d _ 	(No. A-1-CA-36506, May 21, 2019), filed concurrently
2 with this opinion, we reverse.
3 BACKGROUND
4 	{2} 	An Aztec police officer arrested Defendant for, 	inter alia, driving while
5 intoxicated (DWI) after observing him break several traffic laws and attempt to flee
6 from the officer. The officer observed that Defendant had bloodshot, watery eyes,
7 slurred speech, an unsteady balance, and a strong odor of alcohol on his breath. After
8 Defendant refused to perform a field sobriety test or submit to a chemical test of his
9 breath or blood, the officer requested and received a warrant to collect and test a
10 	sample of Defendant's blood. The officer transported Defendant to the San Juan
11 	County Regional Medical Center (the Medical Center) emergency room, where
12 Nicole McNealy, a hospital employee, drew Defendant's blood.
13 	{3} 	Defendant moved to exclude the blood test results on the ground that McNealy
14 did not fall under the categories of individuals authorized to draw blood under
15 	NMSA 1978, Section 66-8-103 (1978), which provides that "[ o]nly a physician,
16 	licensed professional or practical nurse or laboratory technician or technologist
17 	employed by a hospital or physician shall withdraw blood from any person in the
18 	performance of a blood-alcohol test." See also § 66-8-109(A) ("Only the persons
19 authorized by Section 66-8-103 ... shall withdraw blood from any person for the
20 purpose of determining its alcohol or drug content."). Relying on State v. Garcia,
2

1 2016-NMCA-044, 370 P.3d 791, Defendant argued that the district court was
2 required to exclude the blood test results because McNealy-who was licensed as
3 an emergency medical technician (EMT)-did not fall into any of these categories.
4 In response, the State argued that McNealy's training and experience working at the
5 Medical Center qualified her as a laboratory technician or technologist employed by
6 a hospital or physician for purposes of Section 66-8-103.
7 	{4} 	At the evidentiary hearing on the motion, McNealy testified about her training
8 and experience, as well as the procedures for legal blood draws. More detail about
9 her testimony is included in our analysis of the State's arguments. After the hearing,
10 the district court granted Defendant's motion to exclude and entered findings of fact
11 	and conclusions of law. The district court found that the Medical Center employed
12 	McNealy as an EMT-Intermediate and emergency department technician II, not as a
13 	laboratory technician or phlebotomist. While the district court acknowledged that
14 the 	Medical 	Center's 	job 	description 	for 	EMTs 	and 	emergency 	department
15 	technicians included the responsibility to "perform Legal Blood Alcohol blood
16 draws at the request of Law Enforcement personnel[,]" it concluded that "[t]he
17 evidentiary foundation required for the admission of blood alcohol content test
18 	results is governed by statute and case law, not the [Medical Center]." (Alteration
19 omitted.) As such, the district court excluded the test results because Section 66-8-
20 	103 does not specifically authorize an EMT or emergency department technician to
3

1 draw blood based on the district court's reading of Garcia. The State timely appealed
2 the district court's order pursuant to NMSA 1978, Section 39-3-3(B)(2) (1972),
3 certifying that the appeal was "not taken for purpose of delay, and the evidence is a
4 substantial proof of a fact material in the proceeding."
5 DISCUSSION
6 I. 	The State May Appeal Pursuant to Section 39-3-3(B)(2)
7 	{5} 	Before considering the merits of the State's argument, we first determine
8 whether the State has a right to appeal. Whether a party has a statutory right to an
9 appeal is a question oflaw, which we review de novo. State v. Armijo, 2016-NMSC-
10 	021, 119, 375 P.3d 415. "The principal command of statutory construction is that
11 	the court should determine and effectuate the intent of the Legislature, using the
12 plain language of the statute as the primary indicator of legislative intent." State v.
13 	Hobbs, 2016-NMCA-022, 19 , 366 P.3d 304 (alteration, internal quotation marks,
14 and 	citation omitted). 	"When a statute contains language 	which 	is 	clear and
15 	unambiguous, we must give effect to that language and refrain from further statutory
16 	interpretation." State v. Taylor E., 2016-NMCA-100, 126 ,385 P.3d 639.
17 	{6} 	Section 39-3-3(B)(2) provides, in relevant part, that the state may appeal a
18 	district court order excluding or suppressing evidence within ten days "if the district
19 attorney certifies to the district court that the appeal is not taken for purpose of delay
20 and that the evidence is a substantial proof of a fact material in the proceeding."
4

1 Defendant cites State v. Gomez, 2006-NMCA-132, ,r 7, 140 N.M. 586, 144 P.3d 145,
2 for the proposition that the State cannot appeal the district court's exclusion of the
3 blood test results because the State has other evidence it can use to convict Defendant
4 	of DWI (i.e., the arresting officer's observations of Defendant). However, we
5 rejected this same argument in Adams because the language and reasoning relied
6 upon from Judge Robinson's opinion in Gomez did not constitute the opinion of this
7 Court. See Adams, 2019-NMCA-_, ,r 11 (stating that Chief Judge Bustamante's
8 special concurrence, which did not question the district attorney's certification under
9 Section 39-3-3, constituted the opinion of our Court in Gomez). Instead, we held that
10 the state could appeal the exclusion of the blood test results, despite having other
11 	evidence to prove the defendant's guilt, because the excluded blood test results were
12 "important or significant." Adams, 2019-NMCA-_, ,r,r 12-13 (quoting State v.
13 	Mendez, 	2009-NMCA-060, ,r 12, 146 N.M. 409, 211 	P.3d 206, rev'd on other
14 grounds, 2010-NMSC-044, ,r 56, 148 N.M. 761,242 P.3d 328).
15 	{7} 	For the same reasons, we likewise conclude that the blood test results here are
16 "important or significant." Id. ,r 12 (quoting Mendez, 2009-NMCA-060, ,r 12). The
17 State 	may 	introduce 	the 	results 	to 	show the 	amount 	of alcohol 	or 	drugs 	in
18 	Defendant's blood shortly after driving. See§ 66-8-1 lO(A) ("The results of a test
19 performed pursuant to the Implied Consent Act may be introduced into evidence in
20 any ... criminal action arising out of the acts alleged to have been committed by the
5

1 person tested for driving a motor vehicle while under the influence of intoxicating
2 liquor or drugs."). As we observed in Adams, "Without the blood test results, the
3 	[s]tate 	would 	have 	to 	rely 	solely 	on 	witness 	testimony 	to 	demonstrate 	[the
4 d]efendant's intoxication, a potentially more difficult task, given the possibility that
5 its witnesses may become unavailable or have faded memories." 2019-NMCA-_ ,
6 ,r 13. Thus, we conclude that the blood test results are "substantial proof of a fact
7 material" sufficient to invoke an interlocutory appeal pursuant to Section 39-3-
8 3(B)(2).
9 II.
10
11 	{8}
The District Court's Suppression of the Blood Test Results Constituted
an Abuse of Discretion
"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-l l l, ,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).
6

1 {9} 	On appeal, the parties repeat the arguments advanced below. We conclude
2 that Adams requires reversal. We briefly summarize Adams and refer the parties to
3 that opinion for a full discussion of Garcia and construction of Section 66-8-103. In
4 Adams, 	addressing arguments 	nearly 	identical 	to 	those 	here, 	we 	rejected the
5 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-_, 'if 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 raised in Garcia presented a particular question, to wit: do EMTs fall
10 within a sixth category of authorized persons under Section 66-8-103 as a "licensed
11 	professional"? Adams, 2019-NMCA-_, 'if 22. Given Garcia's analysis of this
12 question, we concluded that Garcia merely stood for the proposition that an EMT
13 	license alone is insufficient to permit a person to draw blood under Section 66-8-
14 	103. Adams, 2019-NM CA-_, 'if 22. Because the state in Adams did not argue that
15 	the EMT was qualified as a result of her license, but rather that the EMT qualified
16 	because of her additional training and experience, we concluded that Garcia's
17 analysis did not apply. Id. 'if 21 (stating that different facts and arguments "warrant a
18 	different analysis than that of Garcia"). 	Additionally, we noted that the 	facts
19 	surrounding the blood draw distinguished Adams 	from 	Garcia. 	Adams, 	2019-
20 	NMCA-_, 'if 23.
7

1 {10} 	In keeping with Adams, we conclude that Garcia does not govern our analysis
2 here because this matter is distinguishable from Garcia, both on the legal question
3 presented and on the facts surrounding the blood draw. As to the legal question, the
4 State argues not that McNealy is qualified to draw blood under Section 66-8-103
5 because she is licensed as an EMT, but that the Legislature intended for people with
6 McNealy's skills and experience to fall within the category "laboratory technician"
7 for purposes of Section 66-8-103. See Adams, 2019-NMCA-_, ,r 22 (stating that
8 Garcia addressed "whether the EMT' s license would qualify her under the asserted
9 (but rejected) category of 'licensed professional,' not whether an EMT with greater
10 experience 	and 	training 	could 	potentially 	qualify 	under 	another 	enumerated
11 	category"). As to the distinguishing facts, here McNealy was employed by the
12 	Medical Center and drew Defendant's blood in a hospital setting, not in the course
13 	of emergency care, as was the case in Garcia. Compare Adams, 2019-NMCA-_,
14 ,r 23, with Garcia, 2016-NMCA-044, ,r,r 3-5. In addition, unlike Garcia, Defendant
15 	does not dispute that McNealy used the Scientific Laboratory Division-approved test
16 kit to ensure the reliability of the testing. Compare Adams, 2019-NMCA-_, ,r 2,
17 with Garcia, 2016-NMCA-044, ,r 5; see§ 66-8-107 (providing that a test of blood
18 	or breath must be approved by the Scientific Laboratory Division of the Department
19 	of Health). Moreover, as we discuss next, McNealy had received training in
20 phlebotomy and legal blood draws in addition to her EMT training. See Adams,
8

1 2019-NMCA- _, ,r 21 ("Nor is there any indication that the Garcia EMT had any
2 additional training or experience in drawing blood that would qualify her under any
3 other category listed in Section 66-8-103. ").
4 	{11} 	Having concluded that Adams-not Garcia-controls here, we proceed to
5 determine 	whether 	McNealy 	was 	qualified 	under 	Section 	66-8-103 	to 	draw
6 Defendant's blood for testing. 	In Adams, 	we construed Section 66-8-103 	and
7 concluded that, by authorizing to draw blood an undefined category of non-licensed
8 medical 	personnel 	employed 	by 	a 	hospital 	or physician, 	such 	as 	laboratory
9 technicians, "our Legislature was adopting approved medical practice." Adams,
10 	2019-NMCA-_, ,r 27. "In other words, an individual qualifies as a laboratory
11 	technician for purposes of Section 66-8-103 	so long as a hospital or physician
12 	determined that she was qualified to perform blood draws in accordance with
13 	accepted 	medical 	standards 	based 	on 	her 	demonstrable 	skills, 	training, 	and
14 experience." Adams, 2019-NMCA-_, ,r 27. Defendant argues that reading the term
15 	"laboratory technician" in this fashion would create a catch-all category in violation
16 	of the "clear purpose of [Section 66-8-103 to] limit[] who may draw blood to specific
17 classes of individuals." However, as we observed in Adams, this interpretation is in
18 	line with both the purposes of Section 66-8-103 and the Implied Consent Act as a
19 whole, as it ( 1) "ensures the safety of defendants and the reliability of blood samples
20 by limiting those authorized to draw blood to qualified individuals who have been
9

1 approved by the 	medical community to perform such tasks" 	and (2) "avoids
2 unnecessarily narrowing the class of individuals qualified to perform blood draws in
3 aid of in the prosecution of DWI offenses." Adams, 2019-NMCA-_ , ~ 32.
4 	{12} 	The 	undisputed testimony demonstrates that McNealy met the 	standard
5 announced in Adams. The district court did not make any findings of fact regarding
6 McNealy' s qualifications to draw blood in general except for finding that McNealy
7 " [was] not employed by the [Medical Center] as a laboratory technician or as a
8 phlebotomist." However, McNealy' s title is oflittle importance. See id.~ 28 ("While
9 [the EMT] did not have the title 'laboratory technician,' or work in a laboratory,
10 these facts alone are of no moment."). Nor does McNealy's lack of any national
11 	laboratory technician certification disqualify her to draw blood under Section 66-8-
12 	103 , 	as 	Defendant 	argues. 	See 	Adams, 	2019-NMCA- _, 	~ 27 	n.2 	(" If the
13 	Legislature intended to authorize only certified laboratory technicians to draw blood
14 	under Section 66-8-103, it could have expressly included such a requirement similar
15 	to the licensure requirement for professional or practical nurses. Thus, we decline to
16 	read into the statute any additional requirement that laboratory technicians must hold
17 	a national certification." (citation omitted)). "Rather, the controlling factors are the
18 	individual's assigned duties, skills, training, and experience." Id. ~ 28. To this end,
19 the district court acknowledged that the Medical Center' s job description for
20 McNealy' s position included the responsibility for performing legal blood draws at
10

1 the request of law enforcement personnel. At the time McNealy drew Defendant's
2 blood, she had been working at the Medical Center for several years and was licensed
3 as EMT-I, as well as an advanced EMT with the National Registry of Emergency
4 Medical Technicians. More significantly, McNealy testified that the Medical Center
5 trained her how to perform legal blood draws as part of her orientation, which she
6 estimated that she had performed "more than twenty-five or thirty" times during her
7 employment with the Medical Center. Additionally, McNealy was able to describe
8 the specific process for performing legal blood draws in detail.
9 	{t3} 	In sum, McNealy's undisputed testimony demonstrated that the Medical
10 Center hired her to perform, inter alia, legal blood draws, trained her in legal blood
11 	draw procedures, and determined that she was qualified to perform that task. See id.
12 	(holding that an EMT employed by a hospital whose assigned duties included
13 	drawing blood and who had received training in drawing blood qualified as a
14 "laboratory technician" under Section 66-8-103 ). Hence, McNealy falls within the
15 	meaning of "laboratory technician" for purposes of the Implied Consent Act. As the
16 district court excluded the blood test results based upon a misapprehension of
17 	Section 66-8-103 and our case law, the district court abused its discretion.
11

1 CONCLUSION
2 	{14} 	For the foregoing reasons, we reverse the district court's order excluding
3 Defendant's blood test results and remand for further proceedings consistent with
4 this opinion.
5 	{15} 	IT IS SO ORDERED.
6
• 7
8 WE CONCUR:
9 _;,_	. ~~-·'"'	____
10 J. MILES HANISEE, Judge
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12 	UELINE R. MEDINA, Judge
12