May 21, 2019- State of New Mexico v. Brian Adams, No. A-1-CA-36506

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Court of Appeals of New Mexico
Filed 5/21/2019 11:30 AM

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Opinion Number:
Filing Date: May 21, 2019

No. A-1-—~ A-36506
STATE OF NEW MEXICO,

Plaintiff-Appellant,

BRIAN ADAMS,
Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Daylene Marsh, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

John Kloss, Assistant Attorney General
Albuquerque, NM

for Appellant

Bennett J. Baur, Chief Public Defender
Santa Fe, NM

John Bennett, Assistant Appellate Defender
Albuquerque, NM

for Appellee

Ma

Reynolds

1 	OPINION
2 	VANZI, Judge.
3 	{t} 	This interlocutory appeal arises from the district court's order excluding the
4 results of Defendant Brian Adams' blood test on the basis that the individual who
5 drew his blood was not authorized to do so under the Implied Consent Act, NMSA
6 	1978, §§ 66-8-105 to -112 (1978, as amended through 2015). On appeal, the State
7 contends that the district court abused its discretion in excluding the blood test
8 results because the person who drew the blood was an emergency medical technician
9 (EMT) whose additional training and experience qualified her to draw blood. We
10 	first hold that the State properly took this interlocutory appeal under NMSA 1978,
11 	Section 39-3-3(B)(2) (1972), because the blood test results constituted substantial
12 proof of a material fact. 	We further hold that the EMT was qualified to draw
13 	Defendant's blood under the Implied Consent Act. As the district court based its
14 exclusion of the blood test results on a misapprehension of our case law and the
15 	statutory requirements for who may draw blood, its exclusion constituted an abuse
16 	of discretion. Accordingly, we reverse and remand.
17 	BACKGROUND
18 	{2} 	A Farmington police officer was dispatched to a local gas station after
19 receiving a report of a possible drunk driver. Upon arriving at the gas station, the
20 officer made contact with Defendant, w ho was inflating the tires of a car matching

1 the description provided by the caller. The officer noticed Defendant had slurred
2 speech and 	bloodshot, "glossy" eyes. 	Upon contacting the caller himself and
3 confirming that the caller witnessed Defendant driving the vehicle, the officer had
4 Defendant perform several field sobriety tests. During the tests, the officer observed
5 Defendant swaying, failing to follow directions, and unable to balance on one foot.
6 The 	officer 	also 	noticed Defendant's 	breath 	had 	a "slight odor 	of alcohol."
7 Defendant admitted to drinking whiskey and taking Xanax and Suboxone earlier in
8 the day. Based on these observations and Defendant's admission, the officer arrested
9 Defendant for driving while intoxicated (DWI). After Defendant agreed to a blood
10 draw pursuant to the Implied Consent Act, the officer transported Defendant to the
11 	San Juan Regional Medical Center (the Medical Center). The officer directed Danica
12 	Atwood, a hospital employee and licensed EMT, to perform the blood draw using a
13 	sealed blood draw kit. The Scientific Laboratory Division of the New Mexico
14 Department of Health (SLD) subsequently tested Defendant's blood, which tested
15 	negative for alcohol but positive for marijuana-related metabolites, benzodiazepines,
16 	and synthetic opioids.
17 	{3} 	The State charged Defendant with one count of non-aggravated DWI, in
18 	violation of NMSA 1978, Section 66-8-102 (2016). Defendant moved to suppress
19 the blood test results on the basis that Atwood was not qualified to perform blood
20 draws under NMSA 1978, Section 66-8-103 ( 1978), which provides that "[ o]nly a
2

1 physician, 	licensed professional 	or practical 	nurse 	or laboratory technician or
2 technologist employed by a hospital or physician shall withdraw blood from any
3 person in the performance of a blood-alcohol test." After the magistrate court denied
4 his motion to suppress, Defendant pleaded no contest, reserving his right to appeal
5 the magistrate court's decision not to suppress the blood test results.
6 	{4} 	On appeal, 	the 	district court held an 	evidentiary hearing, 	during which
7 Defendant argued that the district court should suppress the blood test results based
8 on State v. Garcia, 2016-NMCA-044, 1 1, 370 P.3d 791 (holding that a licensed
9 	EMT did not fit within the statutory categories of persons "authorized to draw blood
10 	for the purpose of determining its alcohol or drug content under the Implied Consent
11 	Act"). In response, the State argued that, although an EMT license alone was not
12 	sufficient to qualify Atwood to draw blood pursuant to Section 66-8-103, her
13 	additional experience and training qualified her to do so as a laboratory technician
14 or 	technologist. 	In 	support 	of the 	State's 	argument, 	Atwood 	testified 	to 	the
15 	following. At the time she drew Defendant's blood, Atwood held an EMT-basic
16 license, and had been employed as an EMT and emergency department technician
17 	in the Medical Center emergency room for approximately four months. Atwood's
18 job 	duties 	included 	drawing 	blood 	for 	medical 	laboratory testing, 	as 	well 	as
19 performing blood draws at the request of law enforcement personnel. She worked
20 three twelve-hour shifts per week and would draw blood from twenty-five people on
3

1 average each shift. Atwood testified that, after initially being trained by other
2 technicians and nurses in the manner in which blood is drawn at the Medical Center,
3 she performed blood draws under supervision for six weeks until hospital personnel
4 determined that she was competent to perform blood draws unsupervised. On cross-
5 examination, Atwood confirmed that she never worked in a laboratory and that she
6 was not licensed or certified as a phlebotomist.
7 	{5} 	Although Atwood stated that she never received any specific training pursuant
8 to the Implied Consent Act, she explained some of the differences between drawing
9 blood 	for 	medical 	laboratory testing and drawing blood for 	law enforcement
10 purposes. F qr medical blood draws, technicians could draw blood out of an IV line,
11 	clean the puncture site with alcohol, and give the sample to another hospital
12 	employee for transport to a laboratory for testing. However, for "legal" blood draws,
13 	technicians had to clean the puncture site with a non-alcoholic substance, such as
14 	iodine, use the collection tubes provided by the officer, and hand the tubes directly
15 	to 	the 	officer after completing the 	draw. 	Atwood testified that 	she 	collected
16 Defendant's 	blood using an 	unexpired, 	SLD-approved blood collection kit in
17 accordance with the kit's instructions.
18 	{6} 	After the hearing, the district court granted Defendant's motion to suppress
19 	and entered findings of fact and conclusions of law. The district court found that
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Defendant's blood was drawn by Danica Atwood, a hospital employee
employed in dual 	capacities as an [EMT] 	and as an "Emergency
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Department Technician." Ms. 	Atwood ' s training as an Emergency
Department Technician included on-the-job training in drawing blood,
which , according to the 	[Medical Center's] 	policy and procedures
qualified her to do "legal alcohol blood draws at the request of law
enforcement personnel."
6 	However, the district court concluded that this Court' s "categorical holding " in
7 	Garcia, 2016-NMCA-044 , ~ 20, "that a person' s 'license as an EMT does not qualify
8 	her to draw blood to determine its alcohol or drug content under the Implied Consent
9 	Act[,]' " precluded a ruling that Atwood was the same or similar to a laboratory
10 technician for purposes of Section 66-8-103. As such, the district court excluded the
11 	blood test results. The State timely appealed the district court's order pursuant to
12 	Section 39-3-3(B)(2), certifying that the appeal was "not taken for purpose of delay,
13 	and the evidence is a substantial proof of a fact material in the proceeding."
14 	DISCUSSION
15 	I.
16 	{7}
The State May Appeal Pursuant to Section 39-3-3(B)(2)
Before considering the merits of the State's argument, we must determine the
17 threshold issue of whether the State has a right to appeal. Defendant contends that
18 the State cannot appeal the district court's exclusion of the blood test results because
19 the State has other evidence it can use to convict Defendant ofDWI. We disagree.
20 	{8} 	"A court's jurisdiction derives from a statute or constitutional provision."
21 	State v. Armijo, 2016-NMSC-021 , ~ 19,375 P.3d 415 (internal quotation marks and
22 	citation omitted). Whether a party has a statutory right to an appeal is a question of
5

1 law, which we review de novo. Jd. "The principal command of statutory construction
2 is that the court should determine and effectuate the intent of the Legislature, using
3 the plain language of the statute as the primary indicator of legislative intent." State
4 v. Hobbs, 2016-NMCA-022, ,r 9,366 P.3d 304 (alteration, internal quotation marks,
5 and 	citation omitted). "When a statute contains language which is clear and
6 unambiguous, we must give effect to that language and refrain from further statutory
7 interpretation." State v. Taylor E., 2016-NMCA-100, ,r 26, 385 P.3d 639 (internal
8 quotation marks and citation omitted).
9 	{9} 	Section 39-3-3(8)(2) provides, in pertinent part,
10 	In any criminal proceeding in district court an appeal may be taken by
11 	the state to the [S]upreme [C]ourt or [C]ourt of [A]ppeals, as appellate
12 	jurisdiction may be vested by law in these courts ... within ten days
13 	from a decision or order of a district court suppressing or excluding
14 	evidence ... , if the district attorney certifies to the district court that
15 	the appeal is not taken for purpose of delay and that the evidence is a
16 	substantial proof of a fact material in the proceeding.
17 Defendant does not dispute that the State timely filed 	in the district court a
18 	certification compliant with Section 39-3-3(8)(2), or question the State's motives
19 	for taking this appeal. Rather, Defendant contends that the blood test results are not
20 "substantial proof of a fact material in the proceeding" because the State could still
21 	prove its case without them. See id. Specifically, Defendant claims that because the
22 officer and the caller could testify as to their observations of Defendant, including
23 	his performance on the field sobriety tests and admission to drinking alcohol and
6

1 taking prescription drugs, the State could still prove its case without the blood test
2 results by demonstrating that Defendant was "impair[ed] to the slightest degree."
3 See § 66-8-102(A) ("It is unlawful for a person who is under the influence of
4 intoxicating liquor to drive a vehicle within this state."); State v. 	Gurule, 2011-
5 NMCA-042,, 7, 149 N.M. 599, 252 P.3d 823 ("In order to convict under [Section
6 66-8-102](A), a court must find that the defendant was less able to the slightest
7 degree, either mentally or physically, or both, to exercise the clear judgment and
8 steady hand necessary to handle a vehicle with safety to the driver and the public as
9 a result of drinking the liquor." (internal quotation marks and citation omitted)); see
10 State v. Neal, 2008-NMCA-008, , 27, 143 N.M. 341, 176 P.3d 330 ("Given the
11 	testimony as to [the d]efendant's driving behavior, physical condition, admission of
12 	drinking, and performance on the field sobriety tests, the factfinder could rely on
13 	common knowledge and experience to determine whether [the d]efendant was under
14 the influence of alcohol.").
15 	{10} 	Defendant reads State v. Gomez, 2006-NMCA-132,, 7, 140 N.M. 586, 144
16 P.3d 145, to stand for the proposition that the State cannot appeal the exclusion of
17 evidence unless the exclusion would "make it impossible for the State to prove the
18 	elements of its case." Defendant's understanding of Gomez is flawed. In Gomez, the
19 	State sought to invoke Section 39-3-3(B)(2) as a basis to appeal the district court's
20 midtrial order excluding the defendant's blood test results. Gomez, 2006-NMCA-
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1 132, ,r 3. On appeal, Judge Robinson, authoring the lead opinion, reasoned that
2 because the defendant admitted to drinking and the arresting officer observed him
3 exhibit behaviors indicative of intoxication, the State did not need the blood test
4 results to prove that the defendant was guilty of DWI under the "impaired to the
5 slightest degree" standard. See id. ,r,r 6-7. As a result, Judge Robinson concluded that
6 the state could not appeal the exclusion of the blood test results because they "did
7 not go to the heart of the proof required to establish DWI." Id. ,r 7.
8 {11} 	Importantly, however, neither of the other panel members joined in Judge
9 Robinson's opinion. See id. ,r 22 (Bustamante, C.J., specially concurring) ("I concur
10 in the result of Judge Robinson's opinion."); id. ,r 44 (Fry, J., specially concurring)
11 	("I concur in the result of Judge Robinson's opinion, but I do not agree with the
12 rationale 	supporting 	the 	result. 	I 	concur 	fully 	in 	Chief Judge 	Bustamante's
13 	concurring 	opinion."). 	Thus, 	Chief 	Judge 	Bustamante's 	special 	concurrence
14 constituted the opinion of our Court, not Judge Robinson's opinion. See State v.
15 	Mendez, 2009-NMCA-060, ,r 11, 146 N.M. 409, 211 P.3d 206 ("[W]e observe that
16 the special concurrences of Judges Bustamante and Fry in Gomez constitute the
17 opinion of this Court."), rev 'don other grounds, 2010-NMSC-044, ,r 56, 148 N.M.
18 	761,242 P.3d 328; see also Commonwealth v. Hopkins, A.3d 1133, 1139 (Pa. 2017)
19 (recognizing that a lead opinion written by one judge "lack[ s] the force of precedent"
20 where the two other panelists do not join in its reasoning). Notably, Chief Judge
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1 Bustamante specifically declined to address the merits of the district attorney's
2 certification, 	instead 	holding 	that "Section 39-3-3(B)(2) 	does 	not 	provide 	an
3 automatic appeal from suppression or exclusionary orders entered after jeopardy has
4 attached in a trial." 	Gomez, 	2006-NMCA-132, 1122, 42-43 (Bustamante, C.J.,
5 specially concurring). As the timing of the State's appeal is not an issue in the instant
6 case, Defendant's reliance on Gomez is unavailing.
7 	{12} 	Defendant also cites State v. 	Vasquez, 2014-NMSC-010, 326 P.3d 447, and
8 State v. Romero, 2000-NMCA-029, 128 N.M. 806,999 P.2d 1038, in support of his
9 argument that the exclusion of evidence must essentially "ma[k]e it impossible for
10 the State to prove an element of its case." Romero, 2000-NMCA-029, 19. However,
11 	we do not read these cases as holding that the State may only appeal pursuant to
12 	Section 39-3-3(B)(2) when it cannot possibly convict without the excluded evidence.
13 	Indeed, we later clarified the substantive standard in Romero by explaining, "[W]e
14 do not read Romero as allowing the state to appeal only when the district court's
15 	ruling makes it impossible for the state to prove its case. Rather, we interpret Romero
16 as requiring that the excluded evidence be important or significant, as opposed to
17 evidence of minor consequence." Mendez, 2009-NMCA-060, 1 12. Nor did Vasquez
18 	alter this standard, as the parties in that case did not dispute whether the state could
19 proceed without the excluded evidence. See 2014-NMSC-010, 128 ("[T]he State
20 could not proceed with its prosecution without the[ excluded] witnesses, and no one
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1 claims otherwise."). Consequently, our Supreme Court had no occasion to consider
2 the issue on certiorari review. See State v. Sanchez, 2015-NMSC-018, ,-r 26,350 P.3d
3 	1169 	("The 	general 	rule 	is 	that 	cases are 	not 	authority 	for 	propositions 	not
4 considered." (internal quotation marks and citation omitted)). Thus, Defendant's
5 argument that the State may only appeal when the district court's evidentiary ruling
6 makes it impossible to prove its case finds no support in either Romero or Vasquez.
7 {13} 	We conclude that Defendant's blood test results are "important or significant"
8 under the circumstances of this case. See Mendez, 2009-NMCA-060, ,-r 12. In order
9 to prove that Defendant was intoxicated under Section 66-8-102, the State must
10 demonstrate beyond a reasonable doubt that Defendant (1) "was less able to the
11 	slightest degree, either mentally or physically, or both, to exercise the clear judgment
12 and steady hand necessary to handle a vehicle with safety to the driver and the public
13 	as a result of drinking ... liquor[,]" Gurule, 2011-NMCA-042, ,-r 7; see § 66-8-
14 	102(A); (2) was under the influence of drugs to a degree that rendered him incapable
15 	of safely driving a vehicle, see § 66-8-102(B); or (3) had an alcohol concentration
16 	of eight one hundredths or more in his breath or blood within three hours of driving
17 as the result of liquor consumed before or while driving, see § 66-8-102(C)(l ). To
18 	this end, the State has the option to introduce the blood test results to demonstrate
19 the amount of alcohol or drugs in his blood. See § 66-8-11 O(A) ("The results of a
20 test performed pursuant to the Implied Consent Act may be introduced into evidence
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1 in any ... criminal action arising out of the acts alleged to have been committed by
2 the 	person 	tested 	for 	driving 	a 	motor 	vehicle 	while 	under 	the 	influence 	of
3 intoxicating liquor or drugs."). While the test results here did not register any blood
4 alcohol content, Defendant's blood tested positive for marijuana-related metabolites,
5 benzodiazepines, and synthetic opioids. Without the blood test results, the State
6 would 	have 	to 	rely 	solely 	on 	witness 	testimony 	to 	demonstrate 	Defendant's
7 intoxication, a potentially more difficult task, given the possibility that its witnesses
8 may become unavailable or have faded memories. Nor is it clear that, without the
9 benefit of the test results, the State would be able to muster sufficient proof that
10 Defendant had ingested marijuana, as he only admitted to drinking liquor and taking
11 	prescription drugs. Furthermore, as Defendant only admitted to taking prescription
12 drugs earlier in the day, the test results were necessary to prove the amount of drugs
13 	remaining in his system at the time of arrest in order to show that he was still
14 	impaired. Thus, we conclude that the blood test results constitute "substantial proof
15 	of a fact material" sufficient to allow an interlocutory appeal pursuant to Section 39-
16 	3-3(B)(2).
17 	II.
18
19 	{14}
The District Court's Suppression of the Blood Test Results Constituted
an Abuse of Discretion
The State argues that the district court abused its discretion by holding that
20 Atwood was not authorized to draw Defendant's blood under the Implied Consent
21 	Act based on her status as an EMT. Specifically, the State contends that the district
11

1 court misinterpreted Garcia as precluding a finding that Atwood was authorized to
2 draw blood under the Implied Consent Act, and asserts that Atwood's training and
3 experience are sufficient to qualify her as a laboratory technician .or technologist
4 under Section 66-8-103. We agree.
5 {15} 	"We review the [district] court's decision to exclude or admit evidence for an
6 abuse of discretion." State v. Hanson, 2015-NMCA-057, 15, 348 P.3d 1070. "A
7 [district] court abuses its discretion when it exercises its discretion based on a
8 misunderstanding of the law." State v. Lente, 2005-NMCA-111, 13, 138 N.M. 312,
9 	119 P.3d 737 "We review de novo whether the district court's decision to exclude
10 evidence was based upon a misapprehension of the law." Romero, 2000-NMCA-
ll 	029, 16.
12 	A. 	Garcia Does Not Require Exclusion of Defendant's Blood Test Results
13 	{16} 	The Implied Consent Act provides that every motorist in this state, upon being
14 arrested for DWI, is deemed to have consented to a chemical test to determine the
15 	drug or alcohol content of his or her blood. Section 66-8-107(A); see In re Suazo,
16 	1994-NMSC-070, 17 , 117 N.M. 785, 877 P.2d 1088. Any chemical test performed
17 pursuant to the Implied Consent Act must be approved by the SLD and administered
18 	at the direction of a law enforcement officer. Section 66-8-107(B). The Legislature
19 restricted the 	classes 	of persons authorized 	to 	draw blood for chemical tests
20 performed pursuant to the Implied Consent Act. See § 66-8-109(A) ("Only the
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1 persons authorized by Section 66-8-103 ... shall withdraw blood from any person
2 	for the purpose of determining its alcohol or drug content."). Section 66-8-103
3 	delineates the categories of persons authorized to perform blood draws under the
4 	Implied Consent Act: "Only a physician, licensed professional or practical nurse or
5 laboratory technician or technologist employed by a hospital or physician shall
6 withdraw blood from any person in the performance of a blood-alcohol test." Section
7 	66-8-103 serves the dual purposes of ensuring "the safety of the subject and the
8 reliability of the sample." State v. Wiberg, 1988-NMCA-022, i-f 14, 107 N.M. 152,
9 	754 P.2d 529. Our Court has upheld the exclusion of blood test results when the
10 blood sample is drawn by an individual who does not fall within any of the statutorily
11 	enumerated categories of authorized blood drawers. See, e.g., Garcia, 2016-NMCA-
12 044, ,r 23 ("The State failed to meet its burden of proving that [the d]efendant's blood
13 	was drawn by a person authorized to do so under Section 66-8-103, and the results
14 	of the test are therefore inadmissible.").
15 	{17} 	We addressed Section 66-8-103 most recently in Garcia, where we affirmed
16 the district court's exclusion of blood test results obtained as the result of a blood
17 draw performed by an EMT while she was treating the defendant in an ambulance
18 	following an accident. 2016-NMCA-044, ,r,r 3-5, 24. As a result of a head-on
19 collision, the defendant in that case suffered injuries and had to be transported to the
20 hospital 	via ambulance. 	Id. 	,r 3. 	After the responding officer noticed 	signs 	of
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1 intoxication, the officer asked an EMT in the ambulance to draw the defendant's
2 	blood. Id. The officer provided the EMT with an SLD-approved blood draw kit. Id.
3 ~ 4. However, the EMT did not read the kit's instructions or use the needle included
4 	in the kit because she wanted "[t]o avoid compromising [the d]efendant's care,
5 which was her first priority[.]" Id. ~ 5. Instead, the EMT used a sterile IV catheter
6 and 	syringe from the ambulance's 	supply. 	Id. 	After SLD determined that the
7 defendant's 	blood 	sample 	contained 	marijuana-related 	metabolites, 	the 	State
8 charged the defendant with causing great bodily harm by vehicle while driving under
9 the 	influence 	of drugs 	or 	alcohol. 	Id. 	~~ 5-6. 	The 	district 	court 	granted 	the
10 defendant's motion to suppress the blood test results on the ground that the EMT
11 	was not qualified to perform blood draws. Id. ~ 7.
12 	{18} 	On appeal, the State argued that the EMT qualified under Section 66-8-103 as
13 	a "licensed professional." Garcia, 2016-NMCA-044, ~ 11. After surveying several
14 related cases from New Mexico and other states, id. ~~ 12-17, we turned to the
15 	language of our statute and concluded that Section 66-8-103 established five distinct
16 categories 	of individuals qualified to 	withdraw blood pursuant to the Implied
17 Consent Act: (1) physicians, (2) licensed professional nurses, (3) licensed practical
18 	nurses; (4) laboratory technicians (employed by a hospital or physician), 1 and (5)
1 Garcia suggested, but did not hold, that a laboratory technician must be
employed by a hospital or physician. See 2016-NMCA-044, ~ 18 ("Because we have
found no applicable separate statutory definition for a 'laboratory technician' and
14

1 technologists (employed by a hospital or physician). Garcia, 2016-NMCA-044,
2 1118-19. 	Thus, 	we 	held that "[t]here 	is 	no 	separate 	category 	of a 	'licensed
3 professional,' as urged by the State[,] ... and since [the EMT] d[id] not satisfy any
4 of the categories that are listed as the 'only' ones qualified to draw blood samples
5 she [was] not qualified under the Implied Consent Act." Id. 119.
6 	{19} 	We continued by adding that, even if there were a separate category of
7 "licensed professional," the EMT's license did not qualify her to draw blood under
8 the Implied Consent Act. Id. 1 20. In arriving at this conclusion, we noted that the
9 EMT was employed by an ambulance company licensed to provide "emergency
10 medical services," which were defined as "the services rendered by providers in
11 	response to an individual's need for immediate medical care to prevent loss of life
12 	or aggravation of physical or psychological illness or injury." Id. 	1 20 (quoting
13 	NMSA 1978, § 24-10B-3(K) (2003)); see generally Emergency Medical Services
14 	Act, NMSA 1978, §§ 24-lOB-1 to -13 (1983, as amended through 2014). Within this
15 	statutory framework, we concluded that the EMT' s license allowed her to perform
16 blood draws, "but only in the context of providing ... services rendered 'in response
given the structure of the phrase, it appears that a laboratory technician must be
employed by a hospital or physician to qualify. However, that question is not before
us in this case."). We agree with Garcia that Section 66-8-103 appears to require a
hospital or physician to employ the laboratory technician. Nonetheless, as Defendant
does not dispute that Atwood worked in a hospital, we assume, without deciding,
that Section 66-8-103 requires a laboratory technician to be employed by a hospital
or physician.
15

1 to an individual's need for immediate medical care to prevent loss of life or
2 aggravation of physical or psychological illness or injury.'" Garcia, 2016-NMCA-
3 044, ,-r,-r 21-22 (quoting§ 24-10B-3(K)). We also noted that the general EMT training
4 did "not include the protocols for performing blood draws that comply with the
5 [SLD] regulations ... under the Implied Consent Act." Id. ,-i 22. Given these facts,
6 we held that the EMT' s licensure "did not authorize her to draw blood for the
7 purpose of determining its alcohol or drug content." Id.
8 	{20} 	Here, Defendant contends, and the district court concluded, that Garcia is
9 outcome determinative on the question of whether Atwood, a licensed EMT, is
10 authorized to draw blood under Section 66-8-103. The State, on the other hand,
11 	argues that Garcia does not preclude a determination that Atwood is authorized to
12 	draw blood on the basis of her additional training and experience because Garcia,
13 	as the State puts it, "merely held that an individual's EMT license alone did not
14 entitle her to membership in any of the categories of individuals authorized to draw
15 	blood under Section 66-8-103." (Emphasis added.) We find the State's argument to
16 be persuasive.
17 	{21} 	The distinguishable facts presented and arguments made in the instant case
18 	warrant a different analysis than that of Garcia, which did not address the question
19 	whether an EMT can qualify as a laboratory technician or technologist employed by
20 a hospital or physician based on the EMT' s additional training and experience.
16

1 Unlike Garcia, the State, here, is not arguing that Atwood is qualified to draw blood
2 under Section 66-8-103 simply because she holds an EMT license. Rather, the State
3 is arguing that Atwood's license, 	combined with her experience and training,
4 qualifies her as a laboratory technician or technologist. We had no occasion to
5 address this argument in Garcia, as the State only argued in that case that the EMT
6 qualified under a separate category set forth in Section 66-8-103 (i.e., a "licensed
7 professional"). See Garcia, 2016-NMCA-044, 111. There is no indication that the
8 state 	in 	Garcia 	argued that the EMT qualified as 	a laboratory technician or
9 technologist employed by a hospital or physician. Nor is there any indication that
10 the Garcia EMT had any additional training or experience in drawing blood that
11 	would qualify her under any other category listed in Section 66-8-103.
12 	{22} 	Rather, this Court in Garcia merely addressed the issue of whether an EMT
13 	license, by itself, qualified an individual to perform blood draws under Section 66-
14 	8-103. After determining that Section 66-8-103 did not contain a sixth category of
15 	authorized blood drawers, i.e., one covering "licensed professionals," we stated,
16 "Even if we were able to accept the State's argument for a separate category of a
17 	'licensed professional,' [the EMT's] license as an EMT does not qualify her to draw
18 	blood ... under the Implied Consent Act." Garcia, 2016-NMCA-044, 1119-20
19 (emphasis added). Thus, it is clear we were addressing whether the EMT' s license
20 would 	qualify 	her 	under 	the 	asserted 	(but 	rejected) 	category 	of 	"licensed
17

1 professional," not whether an EMT with greater experience and training could
2 potentially qualify under another enumerated category. Therefore, Garcia does not
3 stand for the proposition that Section 66-8-103 prohibits all EMTs from drawing
4 blood. See Sanchez, 2015-NMSC-018, 126 ("The general rule is that cases are not
5 authority for propositions not considered." (internal quotation marks and citation
6 omitted)).
7 	{23} 	Moreover, the facts of Garcia are distinguishable. While both cases involve
8 EMTs, the circumstances of the blood draws involved in each case could not be more
9 different. Unlike Garcia, there is no evidence that Atwood sacrificed the reliability
10 	of the test results because she was treating Defendant for injuries. See 2016-NMCA-
11 	044, 15. While it was unclear how much experience the Garcia EMT had with blood
12 	draws, Atwood testified that she typically performed approximately twenty-five
13 	blood draws each shift. Perhaps most importantly, Atwood drew Defendant's blood
14 	in 	a 	hospital 	setting 	using 	an 	SLD-approved 	test 	kit, 	unlike 	the 	makeshift,
15 	ambulance-based blood draw involved in Garcia. See id. 113-5. These differences
16 	are significant, as they demonstrate that Atwood had significantly more experience
17 than the Garcia EMT in drawing blood for purposes of the Implied Consent Act and
18 	that the blood sample used here was inherently more reliable than the one used in
19 	Garcia. In light of the foregoing, we conclude that Garcia does not dictate the result
20 	of this case.
18

1 B. 	Atwood Is Authorized to Draw Blood Under Section 66-8-103
2 	{24} 	We tum now to the merits of the State's contention that Atwood qualifies as
3 either a laboratory technician or a technologist under Section 66-8-103 based on her
4 additional experience and training. In order to 	answer this question, we must
5 determine what the Legislature intended in using the terms "laboratory technician"
6 and "technologist." We begin with the term "laboratory technician."
7 	{25} 	"The primary goal in construing a statute is to ascertain and give effect to the
8 intent of the Legislature." State v. 	Holt, 2016-NMSC-011, ~ 10, 368 P.3d 409
9 (internal quotation marks and citation omitted). "In doing so, we first look to the
10 words the Legislature chose and the plain meaning of the language." State v. Ramos-
11 	Arenas, 2012-NMCA-117, ~ 6,290 P.3d 733 (internal quotation marks and citation
12 	omitted). "The words of a statute, including terms not statutorily defined, should be
13 	given their ordinary meaning absent clear and express legislative intention to the
14 contrary." 	Id. 	(internal 	quotation 	marks 	and 	citation 	omitted). 	"We 	reject 	a
15 	mechanical statutory construction when the results would be absurd, unreasonable,
16 or contrary to the spirit of the statute. When interpreting a statute, we are also
17 	informed by the history, background, and overall structure of the statute, as well as
18 	its function within a comprehensive legislative scheme." State v. Almanzar, 2014-
19 NMSC-001, ~ 15,316 P.3d 183 (internal quotation marks and citations omitted).
19

1 {26} 	There is no statutory or regulatory definition of "laboratory technician."
2 Moreover, unlike physicians or nurses, New Mexico does not have a statutory or
3 regulatory licensing requirement for laboratory technicians. See generally Medical
4 Practice Act, NMSA 1978, §§ 61-6-1 to -35 (1923, as amended through 2017)
5 (providing licensure requirements and penalties for practicing medicine without a
6 license); Nursing Practice Act, NMSA 1978, §§ 61-3-1 to -31 (1968, as amended
7 through 2019) (providing licensure requirements and penalties for practicing nursing
8 without a license). "In the absence of a statutory definition, we rely on a dictionary
9 definition to determine the meaning of the language used." City of Eunice v. N.M
10 	Taxation & Revenue Dep 't, 2014-NMCA-085, ,r 14,331 P.3d 986. "Technician" is
11 	generally defined as "one who has acquired the technique of an . . . area of
12 	specialization." 	Technician, 	Merriam-Webster's Collegiate Dictionary (11th ed.
13 	2003); State v. Webster, 726 P.2d 831,833 (Nev. 1986) ("We note that 'technician'
14 	is generally used in a generic sense. A technician is one versed or skilled in the
15 	technical details of a subject or art." (alteration, internal quotation marks, and
16 citation omitted)). Thus, a laboratory technician is a person who has acquired the
17 technique of an area of specialization suitable for working in a laboratory setting.
18 	More specifically, in the context of Section 66-8-103, which only pertains to blood
19 	draws, the specialized skill required is that of drawing blood. See NMSA 1978, § 12-
20 2A-2 (1997) ("Unless a word or phrase is defined in the statute or rule being
20

1 construed, its meaning is determined by its context, the rules of grammar and
2 common usage. A word or phrase that has acquired a technical or particular meaning
3 in a particular context has that meaning if it is used in that context."); Janet v.
4 Marshall, 2013-NMCA-037, 19, 296 P.3d 1253 ("We look at the plain meaning of
5 the words used in the context of the statutory text as a whole." (internal quotation
6 marks and citation omitted)).
7 	{27} 	New Mexico courts have not previously addressed the requirements for
8 qualification as a laboratory technician under Section 66-8-103. However, several
9 other states have addressed similar issues in determining when and under what
10 	circumstances an individual qualifies as a statutorily undefined and unlicensed
11 	professional for purposes of their counterpart implied consent laws and concluded
12 that the proper indicator is whether the medical community accepted the individual's
13 	training and experience as adequate for the position. See, e.g., State v. Masteller, 198
14 N.W.2d 503, 504 (S.D. 	1972) ("In authorizing laboratory technicians, medical
15 	technicians, and medical technologists to withdraw blood samples our statute merely
16 adopts approved medical practice. It assures the individual that blood sampling will
17 be performed by trained medical personnel in clinical surroundings. Our legislature
18 	was obviously aware that some hospital, clinic, laboratory, or physician would be
19 	responsible for the training, qualifications, and competence of medical assistants
20 employed and supervised by them to perform the routine task of withdrawing a blood
21

1 sample. No other standard is needed for the protection of the individual or the
2 preservation of the purity of the blood sample."); see also, e.g., People v. Randle,
3 	148, 538 N.E.2d 1253, 1255 (Ill. App. Ct. 1989) ("Illinois has no formal licensing
4 requirements for becoming a phlebotomist. It does not seem pragmatic, then, for a
5 court to impose a higher standard for phlebotomists than that standard imposed by
6 the health care industry. If hospitals, physicians and other medical people, all who
7 bear heavy responsibility for the lives and health of those in their care, see fit to trust
8 [the phlebotomist] to follow correct medical procedures, it makes little sense for
9 courts to find [the phlebotomist] untrained and unqualified."); State v. Winquist, 247
10 N.W.2d 256, 259 (Iowa 1976) ("The test to determine whether a person holding
11 	himself out as a medical technologist is a medical technologist . . . is whether a
12 	satisfactory showing can be made that he has sufficient training in the withdrawal of
13 	blood to accomplish the legislative objectives of protecting the individual's health,
14 	guarding against infection and pain, and assuring the accuracy of the test, all in
15 	accordance with accepted medical standards."); Holler v. N. Dakota Dep 't o/Transp.
16 Dir., 470 N.W.2d 616, 617 (N.D. 1991) ("Where there is no statutory requirement
17 of licensure or educational or training standards, the test for determining whether the
18 	person is a qualified technician is whether a satisfactory showing can be made that
19 the technician has sufficient training in the withdrawal of blood to accomplish the
20 legislative objectives of protecting the individual's health, guarding against infection
22

1 and pain, and assuring the accuracy of the test, all in accordance with accepted
2 medical standards." (footnote omitted) (citing 	Winquist, 	247 N.W.2d at 259));
3 Masteller, . 198 	N.W.2d at 504 (noting that the 	statute authorizing 	laboratory
4 technicians, medical technicians, and medical technologists to withdraw blood
5 samples merely adopts approved medical practice and assures the individual that
6 blood 	sampling 	will 	be 	performed 	by 	trained 	medical 	personnel 	in 	clinical
7 surroundings. And further providing that "[ n]o other standard is needed for the
8 protection of the individual or the preservation of the purity of the blood sample.");
9 State v. Bingham, 921 S.W.2d 494, 496 (Tex. Ct. App. 1996) ("The common-sense
10 	interpretation of the term 'qualified technician[]' ... must include a phlebotomist
11 	who a hospital or other medical facility has determined to be qualified in the
12 technical job of venesection or phlebotomy, i.e., the drawing of blood."). We find
13 	the logic in this line of cases persuasive and similarly conclude that in authorizing
14 	laboratory technicians employed by a hospital or physician to withdraw blood under
15 	the Implied Consent Act-irrespective of their licensure status-our Legislature was
16 adopting approved medical practice. In other words, an individual qualifies as a
17 laboratory technician for purposes of Section 66-8-103 so long as a hospital or
18 physician determined that she was qualified to perform blood draws in accordance
23

1 with accepted medical standards based on her demonstrable skills, training, and
2 experience. 2
3 	{28} 	While Atwood did not have the title "laboratory technician," or work in a
4 laboratory, these facts alone are of no moment. Rather, the controlling factors are
5 the 	individual's 	assigned duties, 	skills, training, 	and experience. 	See State 	v.
6 Stegman, 203 P.3d 52, 58 (Kan. Ct. App. 2009) ("If the person in question has
7 sufficient training in the withdrawal of blood to accomplish the legislative objectives
8 of protecting the individual's health, guarding against infection and pain, and
9 assuring the accuracy of the test, all in accordance with accepted medical standards,
2 We recognize that national organizations offer certifications for laboratory
technicians. 	See 	generally 	Bureau 	of Labor 	Statistics, 	U.S. 	Dep't 	of Labor,
Occupational 	Outlook 	Handbook: 	How 	to 	Become 	a 	Medical 	and 	Clinical
Laboratory 	Technologist 	or 	Technician, 	https://www.bls.gov/ooh/healthcare/
medical-and-clinical-I aboratory-techno logists-and-techni cians.htm#tab-4 	(last
visited Apr. 	22, 2019) (providing information on obtaining medical laboratory
technician 	certifications). 	However, 	because 	New 	Mexico 	does 	not 	require
laboratory technicians to hold any such certification and because Section 66-8-103
does not specify that laboratory technicians must be licensed or certified, we do not
believe the Legislature intended to authorize only laboratory technicians holding a
national certification to draw blood under the Implied Consent Act. If the Legislature
intended to authorize only certified laboratory technicians to draw blood under
Section 66-8-103, it could have expressly included such a requirement similar to the
licensure requirement for professional or practical nurses. See State v. Ramos, 2013-
NMSC-03 l, ,r 15, 305 P.3d 921 (noting that when the Legislature knew how to
include something, and did not, the courts assume the choice was deliberate). Thus,
we decline to read into the statute any additional requirement that laboratory
technicians must hold a national certification. See State v. Hubble, 2009-NMSC-O 14,
,r 10, 146 N.M. 70,206 P.3d 579 ("We will not read into a statute language which is
not there, especially when it makes sense as it is written.").
24

1 then ... that person is a phlebotomist regardless of whether he or she is called a
2 	'phlebotomist' by his or her employer."); see also Arizona ex rel. 	Pennartz v.
3 Olcavage, 30 P.3d 649, 655 n.4 (Ariz. Ct. App. 2001) (emphasizing that "it is the
4 training and experience that makes a person 'qualified'-not the title itself'); People
5 v. Jenne, 425 N.W.2d 116, 117 (Mich. Ct. App. 1988) (concluding that an individual
6 qualified as a "medical technician" because of her training despite having a different
7 title); Krause v. State, 405 S.W.3d 82, 86 (Tex. Crim. App. 2013) ("The record also
8 confirms that, functionally, [the blood drawer] was not emergency medical services
9 personnel. It is true that [she] had training in general emergency procedures. She
10 	also was licensed as an EMT-I and had that title at the hospital. But that training and
11 	her license and title had little to do with what she actually did at the hospital, which
12 was almost exclusively drawing blood." (emphasis omitted)). Thus, we hold that an
13 	individual qualifies as a laboratory technician, despite her official title, if she has
14 	sufficient skills, training, and experience to assure a hospital or physician that she is
15 	qualified to perform blood draws in accordance with approved medical practice.
16 	{29} 	Turning to the facts of this case, we conclude that Atwood's assigned duties,
17 skills, training, and experience qualify her to draw blood under Section 66-8-103.
18 	As the district court found, "Atwood's training as an [e]mergency [d]epartment
19 	[t]echnician included on-the-job training in drawing blood, which, according to the
20 	[Medical Center' s] policy and procedures qualified her to do 'legal alcohol blood
25

1 draws at the request of law enforcement personnel.' " Atwood had been employed
2 by the Medical Center as an EMT and emergency room technician for approximately
3 four months at the time she drew Defendant's blood. Atwood's assigned duties
4 included drawing blood for legal and medical laboratory testing, a task she was
5 called on to do roughly twenty-five times per shift, on average. Atwood received
6 training from other technicians and nurses in drawing blood, and the Medical Center
7 determined she was competent to perform draws unsupervised. Finally, Atwood
8 confirmed, and Defendant does not dispute, that the blood draw was properly
9 performed in accordance with the SLD-approved blood draw kit instructions. Based
10 on this showing, we conclude that Atwood qualifies as a laboratory technician under
11 	Section 66-8-103. Accordingly, we hold that the district court abused its discretion
12 	in excluding the blood test results.
13 	{30} 	The regulations promulgated by the SLD bolster our holding. The Legislature
14 	has shown significant deference to the SLD's expertise in terms of ensuring the
15 	reliability of tests taken pursuant to the Implied Consent Act. See NMSA 1978, § 24-
16 	1-22(A) (2003) ("The [SLD] is authorized to promulgate and approve satisfactory
17 techniques or methods to test persons believed to be operating a motor vehicle ...
18 	under the influence of drugs or alcohol and to issue certification for test operators
19 and their instructors that shall be subject to termination or revocation at the discretion
20 	of the [SLD]."); § 24-1-22(8) ("The [SLD] shall establish criteria and specifications
26

I 	for 	equipment, 	training, 	quality 	control, 	testing 	methodology, 	blood-breath
2 relationships and the certification of operators, instructors and collectors of breath
3 samples."); § 24-l-22(C) ("All laboratories analyzing breath, blood or urine samples
4 pursuant to the provisions of the Implied Consent Act ... shall be certified by the
5 [SLD]."). In light of this deference, the fact that SLD regulations provide that "[t]he
6 term laboratory technician shall include phlebotomists" is particularly persuasive.
7 7.33 .2.l 5(A)(l) NMAC; see Kirkpatrick v. Bd. of Cty. Comm 'rs of Santa Fe Cty.,
8 2009-NMCA-l 10, 111, 147 N.M. 127, 217 P.3d 613 (stating that one of our rules
9 	of 	statutory 	interpretation 	is 	to 	"give 	persuasive 	weight 	to 	long-standing
IO 	administrative constructions of statutes by the agency charged with administering
11 	them" (internal quotation marks and citation omitted)). Granted, like the term
12 "laboratory technician," "phlebotomist" is also undefined by statute or regulation.
13 	Nor is there a state licensing requirement for phlebotomists. Rather, the term
14 "phlebotomist" is generally used in a generic sense to refer to those who practice
15 	phlebotomy, which is defined as "the letting of blood for transfusion, diagnosis, or
16 experiment[.]" 	Phlebotomy, 	Merriam-Webster's Collegiate Dictionary (11th ed.
17 2003); see Pennartz, 30 P.3d at 655 ("[A] phlebotomist, by definition, is a person
18 	who, through training or experience, is competent to draw blood."). Given Atwood's
19 testimony that she regularly performed blood draws as part of her duties at the
27

1 Medical Center, we conclude that she qualifies as a phlebotomist, a status which
2 SLD considers to be in the same vein as laboratory technicians.
3 	{31} 	We find unavailing Defendant's remaining argument that Atwood is not
4 qualified to draw blood under Section 66-8-103 because she does not work in a role
5 that permits or requires her to test bodily fluids. Nowhere in the Implied Consent
6 Act is there any indication that a blood drawer is expected or required to perform the
7 blood-alcohol 	analysis. 	Indeed, 	by 	regulation, 	"[t]he 	blood 	samples 	shall 	be
8 delivered to SLD or a laboratory certified by SLD to conduct tests for alcohol or
9 other drug content." 7.33.2.15(A)(4) NMAC (emphasis added). Thus, the fact that
10 	Atwood does not have the knowledge or authority to test the blood sample is
11 	irrelevant.
12 	{32} 	The result we reach today is in line with the purposes of Section 66-8-103, as
13 	well as the Implied Consent Act as a whole. Our decision ensures the safety of
14 	defendants and the reliability of blood samples by limiting those authorized to draw
15 	blood to qualified individuals who have been approved by the medical community
16 to perform such tasks. See Wiberg, 1988-NMCA-022, 114 (stating that the purpose
17 of Section 66-8-103 is to ensure "the safety of the subject and the reliability of the
18 	sample"). At the same time, our decision also avoids unnecessarily narrowing the
19 class of individuals qualified to perform blood draws in aid of the prosecution of
20 DWI offenses. See Wiberg, 1988-NMCA-022, 113 (rejecting a construction of the
28

1 Implied 	Consent 	Act 	urged 	by 	the 	defense 	that 	"would 	significantly 	and
2 unnecessarily limit the classes of individuals who could assist in furthering the
3 statute's legislative purpose" of deterring drunk drivers and removing them from the
4 highways).
5 	{33} 	Finally, we note that defendants may always challenge the admissibility of a
6 blood test based upon concerns that the individual performing the blood draw did
7 not follow the proper procedures. However, as Defendant does not dispute that
8 Atwood followed the instructions in the SLD-approved blood draw kit in gathering
9 his blood sample in this case, we need not address any such issue here. Given our
10 conclusion, we need not address whether Atwood also qualifies under Section 66-8-
11 	103 as a technologist.
12 CONCLUSION
13 	{34} 	For the forgoing reasons, we reverse the district court's order excluding
14 Defendant's blood test results and remand for further proceedings consistent with
15 	this opinion.
16 	{35} 	IT IS SO ORDERED.
17
18 	L '
29

1 WE CONCUR:
2. Michio
2
3
J. MILES HANISEE, Judge
4
Jacqueline R. Medina
5 JACQUELINE R. MEDINA, Judge
30