June 5, 2019- State of New Mexico v. James Harrison, No. A-1-CA-37180

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Court of Appeals of New Mexico
Filed 6/5/2019 9:19 AM

IN awe Colas us APPEALS F. 2 cits td Ga ® WY C
Sadan our be W MeXleu,
Plaintiff-Appellant,
V. NO. A-1-CA-37180
JAMES HARRISON,
Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Karen L. 1: vwnsend, District Judge

Hector H. Balderas, Attorney General
Emily C. Tyson-Jorgenson, Assistant Attorney General
Santa Fe, NM
for Appellant
Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM
for Appellee
MEMORANDUM OPINION

VANZI, Judge.

4} The State appez 3 the district court’s order excluding the test results of a blood
draw performed pursuant to the Implied Consent Act, NMSA 1978, §§ 66-8-105 to
-112 (1978, as amended through 2015), on the ground that the blood drawer was not

authorized to draw Defendant James Harrison’s blood. Relying on State v. Adams,

bP

1 2019-NMCA-_, _ 	P.3d _ 	(No. A-1-CA-36506, May 21, 2019), which was
2 filed after briefing was complete, we reverse.
3 	BACKGROUND
4 	{2} 	Based on Defendant's performance on several field sobriety tests, an officer
5 arrested Defendant for driving while intoxicated. Defendant agreed to have his blood
6 tested, and the officer transported him to San Juan Regional Medical Center (the
7 Medical Center), where Nicole McNealy, an Emergency Department Technician
8 employed by the Medical Center, drew Defendant's blood for testing.
9 	{3} 	Defendant was charged with driving while under the influence of alcohol or
10 drugs and child abuse. Defendant filed a motion to exclude the blood test results on
11 	the ground that McNealy did not fall within the categories of individuals authorized
12 	to draw blood under NMSA 1978, Section 66-8-103 (1978), which provides that
13 	"[ o ]nly a physician, licensed professional or practical nurse or laboratory technician
14 or technologist employed by a hospital or physician shall withdraw blood from any
15 	person in the performance of a blood-alcohol test." See also § 66-8-109(A) ("Only
16 the persons authorized by Section 66-8-103 . . . shall withdraw blood from any
17 person for the purpose of determining its alcohol or drug content."). Relying on State
18 v. Garcia, 2016-NMCA-044, 370 P.3d 791, Defendant argued that the district court
19 was required to exclude the blood test results because McNealy-who was licensed
20 	as 	an 	emergency 	medical 	technician 	(EMT)-did 	not 	fall 	into 	any 	of these
2

1 categories. In response, the State argued that McNealy's training and experience
2 working 	at 	the 	Medical 	Center 	qualified 	her 	as 	a 	laboratory 	technician 	or
3 technologist employed by a hospital or physician for purposes of Section 66-8-103.
4 	{4} 	At the evidentiary hearing on the motion, McNealy testified about her training
5 and experience, as well as the procedures for legal blood draws. More detail about
6 her testimony is included in our analysis of the State's arguments. The district court
7 granted Defendant's motion to suppress, stating, "I have ... to be consistent with
8 what I keep doing until somebody tells me differently. So I am going to grant the
9 motion to suppress until the case law changes or the Legislature adds EMT tech to
10 the list of authorized blood drawers." Although the district court did not explain its
11 	reasoning in written conclusions oflaw , we understand the district court's statement
12 	as a reference to its reasoning in two previous cases in which it concluded that, under
13 	Garcia, "EMTs simply don't fall under Section 66-8-103." State v. Riley, No. A-1-
14 CA-36863, 	mem. 	op. 	,-r 4 (N.M. 	Ct. 	App. 	May 21, 	2019) (non-precedential)
15 	(alterations and internal quotation marks omitted); see State v. Talk, No. A-l-CA-
16 36378, mem. op. ,-r 4 (N.M. Ct. App. May 21, 2019) (non-precedential). The State
17 	now appeals the suppression of the blood test results. See NMSA 1978, § 39-3-3(8)
18 	( 1972) ("In any criminal proceeding in district court an appeal may be taken by the
19 	state ... within ten days from a decision or order of a district court suppressing or
20 excluding evidence.").
3

1 DISCUSSION
2 {S} 	"We review the [district] court's decision to exclude or admit evidence for an
3 abuse of discretion." State v. Hanson, 2015-NMCA-057,, 5, 348 P.3d 1070. "A
4 [district] court abuses its discretion when it exercises its discretion based on a
5 misunderstanding of the law." State v. Lente, 2005-NMCA-111,, 3, 138 N.M. 312,
6 	119 P.3d 737. "We review de novo whether the district court's decision to exclude
7 evidence was based upon a misapprehension of the law." State v. Romero, 2000-
8 NMCA-029, 	, 6, 	128 	N.M. 	806, 	999 	P.2d 	1038. 	We 	defer 	to 	"the 	district
9 court's findings 	of historical fact 	so 	long as they are supported by substantial
10 evidence." State v. Simpson, 2016-NMCA-070,, 8,388 P.3d 277 (internal quotation
11 	marks and citation omitted).
12 	{6} 	On appeal, the parties repeat the arguments advanced below. We conclude
13 	that Adams requires reversal. We briefly summarize Adams and refer the parties to
14 that opinion for a full discussion of Garcia and construction of Section 66-8-103. In
15 	Adams, 	addressing arguments 	nearly 	identical 	to 	those 	here, 	we 	rejected the
16 	defendant's argument that Garcia stated a categorical rule that EMTs are never
17 	authorized under Section 66-8-103 to draw blood for law enforcement purposes.
18 Adams, 2019-NMCA-_, , 	22 ("Garcia does not stand for the proposition that
19 	Section 66-8-103 prohibits all EMTs from drawing blood."). We noted that the facts
20 and arguments presented in Garcia presented a particular question, to wit: do EMTs
4

1 fall within a sixth category of authorized persons under Section 66-8-103 	as a
2 "licensed professional"? Adams, 2019-NMCA-_, ,-r 22 . Given Garcia's analysis
3 	of this question, we concluded that Garcia merely stood for the proposition that an
4 EMT license alone is insufficient to permit a person to draw blood under Section
5 66-8-103. Adams, 2019-NMCA-_, ,-r 22. Because the State in Adams did not argue
6 that the EMT was qualified as a result of her license, but rather that the EMT was
7 qualified because of her additional training and experience, we concluded that
8 Garcia's 	analysis did not apply. Adams, 	2019-NMCA-_, 	,-r 21 	(stating that
9 different facts and arguments "warrant a different analysis than that of Garcia").
10 Additionally, we noted that the facts surrounding the blood draw distinguished
11 	Adams from Garcia. Adams, 2019-NMCA-_, ,-r 23.
12 	{7} 	In keeping with Adams, we conclude that Garcia does not govern our analysis
13 	here because this matter is distinguishable from Garcia, both on the legal question
14 presented and on the facts surrounding the blood draw. As to the legal question, the
15 	State argues not that McNealy is qualified to draw blood under Section 66-8-103
16 	because she is licensed as an EMT, but that the Legislature intended for people with
17 McNealy's skills and experience to fall within the category "laboratory technician"
18 	for purposes of Section 66-8-103. See Adams, 2019-NMCA-_ , ,-r 22 (stating that
19 	Garcia addressed "whether the EMT' s license would qualify her under the asserted
20 (but rejected) category of 'licensed professional,' not whether an EMT with greater
5

I 	experience 	and 	training 	could 	potentially 	qualify 	under 	another 	enumerated
2 category"). 	As to the distinguishing facts, 	it is 	undisputed that McNealy was
3 employed by the Medical Center and drew Defendant's blood in a hospital setting,
4 not in the course of emergency care, as was the case in Garcia. Compare Adams,
5 2019-NMCA-_, ~ 23, with Garcia, 2016-NMCA-044, ~~ 3-5. In addition, unlike
6 	Garcia, there is no dispute on appeal that McNealy used the Scientific Laboratory
7 Division (SLD)-approved test kit to ensure the reliability of the testing when drawing
8 blood for law enforcement personnel. Compare Adams, 2019-NMCA-_, ~ 2, with
9 	Garcia, 2016-NMCA-044, ~ 5; see § 66-8-107 (providing that a test of blood or
10 breath must be approved by the SLD). Moreover, as we discuss next, McNealy had
11 	received training in phlebotomy and legal blood draws in addition to EMT training.
12 See Adams, 2019-NMCA-_, ~ 21 ("Nor is there any indication that the Garcia
13 	EMT had any additional training or experience in drawing blood that would qualify
14 her under any other category listed in Section 66-8-103. ").
15 	{8} 	Having concluded that Adams-not Garcia-controls here, we proceed to
16 	determine 	whether 	McNealy 	was 	qualified 	under 	Section 	66-8-103 	to 	draw
17 Defendant's blood for testing. 	In Adams, 	we construed Section 66-8-103 	and
18 	concluded that, by authorizing an undefined category of non-licensed medical
19 personnel employed by a hospital or physician to draw blood, such as laboratory
20 technicians, "our Legislature was adopting approved medicat practice." Adams,
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1 2019-NMCA-_ 	, 1 27. "In other words, an individual qualifies as a laboratory
2 technician for purposes of Section 66-8-103 so long as a hospital or physician
3 determined that she was qualified to perform blood draws in accordance with
4 accepted 	medical 	standards 	based 	on 	her 	demonstrable 	skills, 	training, 	and
5 experience." Adams, 2019-NMCA-_, 127.
6 	{9} 	Although the district court did not make any findings of fact, Defendant does
7 not contest McNealy's testimony at the motion hearing on appeal. McNealy testified
8 that she had been licensed as an EMT-Basic since 2012 and EMT-Intermediate since
9 2013 and that she had been employed at the Medical Center for five years. McNealy
10 	stated that she learned to draw blood through a class held in the hospital lab during
11 	orientation to employment at the Medical Center and advanced her skills through the
12 EMT-Intermediate training, during which she learned to start IVs. She testified that
13 	one of her duties was to draw blood and that she typically performs that task ten
14 times per shift, roughly thirty times per week, including both standard and legal
15 	blood draws. Additionally, McNealy described in detail the specific process for
16 performing legal blood draws using the test kit approved by the SLD. See Garcia,
17 	2016-NMCA-044, 1 4 ("SLD-approved blood draw kits include everything that is
18 	needed for a blood draw to ensure continuity and standardization, and to avoid
19 compromising the accuracy and integrity of blood samples."). Finally, McNealy
20 testified that she had completed more than thirty legal blood draws in her career.
7

1 {to} 	In 	sum, 	McNealy's 	undisputed testimony demonstrated that the Medical
2 	Center hired her to perform, among other things, legal blood draws, trained her in
3 	blood draw procedures, and determined that she was qualified to perform those tasks.
4 	See Adams, 2019-NMCA-_, ~ 27 (approving the reasoning that in authorizing
5 non-licensed technicians to perform blood draws, the Legislature was aware that a
6 hospital or physician would be "responsible for the training, qualifications, and
7 competence of medical assistants employed and supervised by them to perform the
8 routine task of withdrawing a blood sample [and that n Jo other standard is needed
9 	for the protection of the individual or the preservation of the purity of the blood
10 sample" (internal quotation marks and citation omitted)). Hence, McNealy falls
11 	within the meaning of "laboratory technician" for purposes of the Implied Consent
12 Act. 	As 	the 	district 	court 	excluded 	the 	blood 	test 	results 	based 	upon 	a
13 	misapprehension of Section 66-8-103 and our case law, the district court abused its
14 discretion in granting Defendant's motion.
15 	CONCLUSION
16 	{tt} 	For the foregoing reasons, we reverse the district court's order excluding
17 Defendant's blood test results and remand for further proceedings consistent with
18 this opinion.
19 	{t2} 	IT IS SO ORDERED.
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WE CONCUR:

> ALYY

J. MI NISEE, Judge