May 21, 2019- State of New Mexico v. Dallas Riley, No. A-1-CA-36863

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-36863
5 DALLAS RILEY,
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 	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 Dallas Riley ' s blood. Relying on State v. Adams,
Court of Appeals of New Mexico
Filed 5/21/2019 11:34 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} 	Defendant was transported to San Juan Regional Medical Center (the Medical
5 Center) after the vehicle he was driving was involved in a single-vehicle accident
6 that caused the death of the vehicle's passenger. At the Medical Center, Defendant
7 told an officer that he was the driver of the vehicle and that he had consumed two
8 shots of rum and smoked marijuana before driving. The officer obtained a warrant
9 for a blood-alcohol test, and Defendant's blood was drawn by Genaro Lopez, who
10 was licensed as an Emergency Medical Technician (EMT) and employed as an
11 	emergency department technician at the Medical Center.
12 	{3} 	Defendant was charged with homicide by vehicle and driving while under the
13 	influence of alcohol or drugs. Defendant filed a motion to exclude the blood test
14 results on the ground that Lopez did not fall under the categories of individuals
15 	authorized to draw blood under NMSA 	1978, Section 66-8-103 	(1978), which
16 provides 	that 	"[ o ]nly 	a 	physician, 	licensed 	professional 	or practical 	nurse 	or
17 	laboratory technician or technologist employed by a hospital or physician shall
18 	withdraw blood from any person in the performance of a blood-alcohol test." See
19 	also § 66-8-109( A) ("Only the persons authorized by Section 66-8-103 . . . shall
20 withdraw blood from any person for the purpose of determining its alcohol or drug
2

1 content."). Relying on State v. Garcia, 2016-NMCA-044, 370 P.3d 791, Defendant
2 argued that the district court was required to exclude the blood test results because
3 Lopez-who was licensed as an emergency JJledical technician (EMT}-did not fall
4 into any of these categories. In response, the State argued that Lopez's training and
5 experience working at the Medical Center qualified him as a laboratory technician
6 or technologist employed by a hospital or physician for purposes of Section 66-8-
7 	103.
8 	{4} 	At the evidentiary hearing on the motion, Lopez testified about his training
9 and experience, as well as the procedures for legal blood draws. More detail about
10 his testimony is included in our analysis of the State's arguments. The district court
11 	granted Defendant's motion to suppress, stating, "EMT[s] simply don't fall under
12 	[Section] 66-8-103 and I will follow the holding of Garcia .... I'm [going to] follow
13 	the same rationale in suppressing the blood results in this matter." The State now
14 appeals the suppression of the blood test results. See NMSA 1978, § 39-3-3(8)
15 	(1972) ("In any criminal proceeding in district court an appeal may be taken by the
16 	state ... within ten days from a decision or order of a district court suppressing or
17 	excluding evidence.").
18 	DISCUSSION
19 	{5} 	"We review the [district] court's decision to exclude or admit evidence for an
20 abuse of discretion." State v. Hanson , 2015-NMCA-057, , 5, 348 P.3d 1070. "A
3

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

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

1 emergency care, as was the case in Garcia. Compare Adams, 2019-NMCA-_,
2 123 , with Garc ia , 2016-NMCA-044, 113-5. In addition, unlike Garcia, there is no
3 dispute that Lopez used the Scientific Laboratory Division-approved test kit to
4 ensure the reliability 	of the testing when drawing blood for 	law enforcement
5 personnel. Compare Adams, 2019-NMCA- _, 12 , with Garcia, 2016-NMCA-044,
6 15; see§ 66-8-107 (providing that a test of blood or breath must be approved by the
7 Scientific Laboratory Division of the Department of Health). Moreover, as we
8 discuss next, Lopez had received training in phlebotomy and legal blood draws in
9 addition to his EMT training. See Adams, 2019-NMCA- _, 121 ("Nor is there any
10 	indication that the Garcia EMT had any additional training or experience in drawing
11 	blood that would qualify her under any other category listed in Section 66-8-103." ).
12 	{8} 	Ha ving concluded that Adams- 	not Garcia-controls here, we proceed to
13 	determine whether Lopez was qualified under Section 66-8-103 to draw Defendant' s
14 blood for testing. In Adams, we construed Section 66-8-103 and concluded that, by
15 	authorizing to draw blood an undefined category of non-licensed medical personnel
16 employed by a hospital or physician, such as laboratory technicians, "our Legislature
17 was adopting approved medical practice." Adams, 2019-NMCA-_ , 127. "In other
18 	words, an individual qualifies as a laboratory technician for purposes of Section 66-
19 	8-103 so long as a hospital or physician determined that []he was qualified to
6

1 perform blood draws in accordance with accepted medical standards based on h[is]
2 demonstrable skills, training, and experience." Id.
3 	{9} 	Although the district court did not make any findings 	of fact, 	Lopez's
4 testimony at the motion hearing is undisputed. Lopez testified that he had been
5 licensed as an EMT-Basic for approximately six years, employed at the Medical
6 Center for four years, and that he assisted with "drawing blood, ... splinting, EKGs,
7 CPR, [and] any patient care." He testified that one of his duties was to "perform legal
8 blood alcohol draws at the request of law enforcement personnel" and that he had
9 been trained to draw blood by a phlebotomist at the Medical Center. Additionally,
10 	Lopez was able to describe the specific process for performing legal blood draws in
11 	detail.
12 {IO} 	In sum, Lopez's undisputed testimony demonstrated that the Medical Center
13 	hired him to perform, inter alia, legal blood draws, trained him in phlebotomy and
14 	legal blood draw procedures, and determined that he was qualified to perform those
15 	tasks. 	See 	Adams, 	2019-NMCA-_, 	,-r 	27 	(approving 	the 	reasoning 	that 	in
16 	authorizing non-licensed technicians to perform blood draws, the Legislature was
17 aware 	that 	a 	hospital 	or 	physician 	would 	be 	"responsible 	for 	'the 	training,
18 	qualifications, and competence of medical assistants employed and supervised by
19 them to perform the routine task of withdrawing a blood sample [and that n]o other
20 standard is needed for the protection of the individual or the pre~ervation of the
7

1 purity of the blood sample" (internal quotation marks and citation omitted)). Hence,
2 Lopez falls within the meaning of "laboratory technician" for purposes of the
3 Implied Consent Act. As the district court excluded the blood test results based upon
4 a misapprehension of Section 66-8-103 and our case law, the district court abused
5 its discretion.
6 	CONCLUSION
7 	{11} 	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 	{t2} 	IT IS SO ORDERED.
11
12 	L
13 	WE CONCUR:
14 	)' -~
15 	J. MILES HANISEE, Judge
8