May 21, 2019- State of New Mexico v. Eugene Garcia, No. A-1-CA-36839

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-36839
5 EUGENE GARCIA,
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 Emily C. Tyson-Jorgenson, Assistant Attorney General
11 	Santa Fe, NM
12 for Appellant
13 	Bennett J. Baur, Chief Public Defender
14 Caitlin C.M. Smith, Assistant Appellate Defender
15 	Santa Fe, NM
16 for Appellee
17
18 	VANZI, Judge.
MEMORANDUM OPINION
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 Eugene Garcia's blood. Relying on State v. Adams,
Court of Appeals of New Mexico
Filed 5/21/2019 11:33 AM

1 2019-NMCA-_, 	_ 	P.3d 	_ 	(No. 	A-1-CA-36506, 	May 	21, 	2019), 	filed
2 concurrently with this opinion, we reverse.
3 BACKGROUND
4 	{2} 	After he was arrested for driving while under the influence of an intoxicating
5 liquor or drug (DUI), the arresting officer requested and received a warrant to obtain
6 a sample 	of Defendant's blood for chemical analysis. 	The officer transported
7 Defendant to the San Juan Regional Medical Center (the Medical Center) emergency
8 room, where Defendant's blood was drawn by Nicole McNealy, an employee of the
9 Medical Center.
10 	{3} 	The State charged Defendant with, inter alia, aggravated DUI, in violation of
11 	NMSA 1978, Section 66-8-102(D)(l) (2016). Defendant moved to suppress the
12 	blood test results on the on the ground that McNealy did not fall under the categories
13 	of individuals authorized to draw blood under NMSA 	1978, Section 66-8-103
14 (1978), which provides that "[o]nly a physician, licensed professional or practical
15 	nurse or laboratory technician or technologist employed by a hospital or physician
16 shall withdraw blood from any person in the performance of a blood-alcohol test."
17 See also § 66-8-109(A) ("Only the persons authorized by Section 66-8-103 ... shall
18 	withdraw blood from any person for the purpose of determining its alcohol or drug
19 content."). Relying on State v. Garcia, 2016-NMCA-044, 370 P.3d 791, Defendant
20 argued that the district court was required to exclude the blood test results because
2

1 McNealy-who was licensed as an emergency medical technician (EMT)-<lid not
2 fall into any of these categories.
3 	{4} 	At the evidentiary hearing on the motion, McNealy testified about her training
4 and experience, as well as the procedures for legal blood draws. More detail about
5 her testimony is included in our analysis of the State's arguments. After hearing the
6 parties' arguments, in which Defendant relied on the plain text of Section 66-8-103
7 and the State emphasized McNealy's qualifications, the district court agreed that
8 Garcia was dispositive and granted Defendant's motion, stating,
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12
13
14
[p ]ursuant to my understanding of the law, the statute, ... Garcia, the
direction given to me by the Court of Appeals, an EMT-I simply doesn't
fall under the statute. There's nothing wrong with Ms. McNealy's
qualifications. However, the Legislature did not add them to the statute
for an authorized blood drawer, so that's why I'm excluding the blood
draw.
15 	The State now appeals the suppression of the blood test results. See NMSA 1978,
16 	§ 39-3-3(B) (1972) ("In any criminal proceeding in district court an appeal may be
17 taken by the state ... within ten days from a decision or order of a district court
18 	suppressing or excluding evidence.").
19 DISCUSSION
20 	{5} 	"We review the [district] court's decision to exclude or admit evidence for an
21 	abuse of discretion." State v. Hanson, 2015-NMCA-057, 15, 348 P.3d 1070. "A
22 	[district] court abuses its discretion when it exercises its discretion based on a
23 	misunderstanding of the law." State v. Lente, 2005-NMCA-1ll,13, 138 N.M. 312,
3

1 119 P.3d 737. "We review de novo whether the district court's decision to exclude
2 evidence was based upon a misapprehension of the law." State v. Romero, 2000-
3 NMCA-029, 	,-r 6, 	128 	N.M. 	806, 	999 	P.2d 	1038. 	We 	defer 	to 	the 	"district
4 court's findings 	of historical fact 	so 	long as they are supported by substantial
5 evidence." State v. Simpson, 2016-NMCA-070, ,-r 8,388 P.3d 277 (internal quotation
6 marks and citation omitted).
7 	{6} 	On appeal, the parties repeat the arguments advanced below. 1 We conclude
8 that Adams requires reversal. We briefly summarize Adams and refer the parties to
9 that opinion for a full discussion of Garcia and construction of Section 66-8-103. In
10 Adams, 	addressing arguments 	nearly 	identical to those 	here, 	we 	rejected the
11 	defendant's argument that Garcia stated a categorical rule that EMTs are never
12 authorized under Section 66-8-103 to draw blood for law enforcement purposes.
13 	Adams, 2019-NMCA-_, ,-r 22 ("Garcia does not stand for the proposition that
1 To the extent Defendant argues that the State failed to preserve for appeal its
specific argument that McNealy qualified as a laboratory technician under Section
66-8-103, we disagree. As indicated by its comments, the district court clearly
understood the State's contention that McNealy fell within Section 66-8-103 based
on her qualifications. Because McNealy was not a physician or licensed professional
or practical nurse, 	the 	only relevant categories were 	laboratory technician or
technologist. The district court relied on Garcia for the proposition that EMTs do
not fall within Section 66-8-103, in effect rejecting the argument that McNealy's
specific training and qualifications could bring her within the statute. Hence, the
State's argument was preserved. See Rule 12-32l(A) NMRA ("To preserve an issue
for review, it must appear that a ruling or decision by the trial court was fairly
invoked.").
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1 Section 66-8-103 prohibits all EMTs from drawing blood."). We noted that the facts
2 and arguments presented in Garcia presented a particular question, to wit: do EMTs
3 fall within a sixth category of authorized persons under Section 66-8-103 	as a
4 "licensed professional"? Adams, 2019-NMCA-_,, 22. Given Garcia's analysis
5 of this question, we concluded that Garcia merely stood for the proposition that an
6 EMT license alone is insufficient to permit a person to draw blood under Section
7 66-8-103 . Adams, 2019-NMCA-_,, 22. Because the State in Adams did not argue
8 that the EMT was qualified as a result of her license, but rather that the EMT
9 qualified because of her additional training and experience, we concluded that
10 	Garcia's analysis did not apply. Id. , 21 (stating that different facts and arguments
11 	"warrant a different analysis than that of Garcia"). Additionally, we noted that the
12 	facts surrounding the blood draw distinguished Adams from Garcia. Adams, 2019-
13 	NMCA-_,, 23.
14 	{7} 	In keeping with Adams, we conclude that Garcia does not govern our analysis
15 	here because this matter is distinguishable from Garcia, both on the legal question
16 presented and on the facts surrounding the blood draw. As to the legal question, the
17 	State argues not that McNealy is qualified to draw blood under Section 66-8-103
18 	because she is licensed as an EMT, but that the Legislature intended for people with
19 McNealy's skills and experience to fall within the category "laboratory technician"
20 for purposes of Section 66-8-103. See Adams, 2019-NMCA-_,, 22 (stating that
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l 	Garcia addressed "whether the EMT' s license would qualify her under the asserted
2 (but rejected) additional category of 'licensed professional,' not whether an EMT
3 with 	greater 	experience 	and 	training 	could 	potentially 	qualify 	under 	another
4 enumerated category"). As to the distinguishing facts, here McNealy was employed
5 by the Medical Center and drew Defendant's blood in a hospital setting, not in the
6 course of emergency care, as was the case in Garcia. Compare Adams, 2019-
•
7 NMCA-_, ,r 23, with Garcia, 	2016-NMCA-044, ,r,r 3-5. In addition, unlike
8 	Garcia, there is no dispute that McNealy used the Scientific Laboratory Division-
9 approved test kit to ensure the reliability of the testing when drawing blood for law
10 enforcement personnel. Compare Adams, 2019-NMCA-_, ,r 2, with Garcia, 2016-
11 	NMCA-044, ,r 5; see § 66-8-107 (providing that a test of blood or breath must be
12 approved by the Scientific Laboratory Division of the Department of Health).
13 	Moreover, as we discuss next, McNealy had received training in phlebotomy and
14 	legal blood draws in addition to her EMT training. See Adams, 2019-NMCA-_,
15 	,r 21 ("Nor is there any indication that the Garcia EMT had any additional training
16 or experience in drawing blood that would qualify her under any other category listed
17 in Section 66-8-103. ").
18 	{8} 	Having concluded that Adams-not Garcia-controls here, we proceed to
19 determine 	whether 	McNealy 	was 	qualified 	under 	Section 	66-8-103 	to 	draw
20 Defendant's blood for testing. 	In Adams, 	we construed Section 66-8-103 	and
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1 concluded that, by authorizing to draw blood an undefined category of non-licensed
2 medical 	personnel 	employed 	by 	a 	hospital 	or physician, 	such 	as 	laboratory
3 technicians, "our Legislature was adopting approved medical practice." Adams,
4 2019-NMCA-_ , ~ 27. "In other words, an individual qualifies as a laboratory
5 technician for purposes of Section 66-8-103 so long as a hospital or physician
6 determined that she was qualified to perform blood draws in accordance with
7 accepted 	medical 	standards 	based 	on 	her 	demonstrable 	skills, 	training, 	and
8 experience." Adams, 2019-NMCA- _, ~ 27.
9 	{9} 	Here, the district court did not make any written findings of fact but stated that
10 "[t]here's nothing wrong with ... McNealy' s qualifications." McNealy's undisputed
11 	testimony supports this conclusion. McNealy testified that she was licensed as an
12 EMT-Intermediate and was registered as an advanced emergency medical technician
13 	with the National Registry of Emergency Medical Technicians. More significantly,
14 	she testified that she had been employed by the Medical Center for five years, and
15 	that "peform[ing] legal blood alcohol draws at the request of law enforcement
16 personnel" is one of her job duties. To this end, she had been trained in drawing
17 	blood by a phlebotomist at the Medical Center and in legal blood alcohol draws
18 	during orientation at the Medical Center. 	See 	id. 	~ 28 	(holding that an EMT
19 employed by a hospital whose assigned duties included drawing blood and who had
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1 received training in drawing blood qualified as a "laboratory technician" under
2 Section 66-8-103 ).
3 	{10} 	In sum, McNealy's undisputed testimony demonstrated that the Medical
4 Center hired her to perform, inter alia, legal blood draws, trained her in phlebotomy
5 and legal blood draw procedures, and determined that she was qualified to perform
6 those tasks. See Adams, 2019-NMCA-_, 1 27 (approving the reasoning that in
7 authorizing non-licensed technicians to perform blood draws, the Legislature was
8 aware 	that 	a 	hospital 	or 	physician 	would 	be 	"responsible 	for 	the 	training,
9 qualifications, and competence of medical assistants employed and supervised by
10 them to perform the routine task of withdrawing a blood sample [and that n]o other
11 	standard is needed for the protection of the individual or the preservation of the
12 purity of the blood sample" (internal quotation marks and citation omitted)). Hence,
13 	we conclude McNealy falls within the meaning of "laboratory technician" for
14 purposes of the Implied Consent Act. As the district court excluded the blood test
15 	results based upon a misapprehension of Section 66-8-103 and our case law, the
16 	district court abused its discretion.
17 	CONCLUSION
18 	{tt} 	For the foregoing reasons, we reverse the district court's order excluding
19 Defendant's blood test results and remand for further proceedings consistent with
20 this opinion.
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1 {t2} 	IT IS SO ORDERED.
2
3
4 WE CONCUR:
SY -~
6 J. MILES HANISEE, Judge
DELINE R. MEDINA, Judge
9