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State v. Adams

Court of Appeals of New Mexico

May 21, 2019

STATE OF NEW MEXICO, Plaintiff-Appellant,
BRIAN ADAMS, Defendant-Appellee.


          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


          LINDA K. VANZI, JUDGE.

         {¶1} This interlocutory appeal arises from the district court's order excluding the results of Defendant Brian Adams' blood test on the basis that the individual who drew his blood was not authorized to do so under the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2015). On appeal, the State contends that the district court abused its discretion in excluding the blood test results because the person who drew the blood was an emergency medical technician (EMT) whose additional training and experience qualified her to draw blood. We first hold that the State properly took this interlocutory appeal under NMSA 1978, Section 39-3-3(B)(2) (1972), because the blood test results constituted substantial proof of a material fact. We further hold that the EMT was qualified to draw Defendant's blood under the Implied Consent Act. As the district court based its exclusion of the blood test results on a misapprehension of our case law and the statutory requirements for who may draw blood, its exclusion constituted an abuse of discretion. Accordingly, we reverse and remand.


         {¶2} A Farmington police officer was dispatched to a local gas station after receiving a report of a possible drunk driver. Upon arriving at the gas station, the officer made contact with Defendant, who was inflating the tires of a car matching the description provided by the caller. The officer noticed Defendant had slurred speech and bloodshot, "glossy" eyes. Upon contacting the caller himself and confirming that the caller witnessed Defendant driving the vehicle, the officer had Defendant perform several field sobriety tests. During the tests, the officer observed Defendant swaying, failing to follow directions, and unable to balance on one foot. The officer also noticed Defendant's breath had a "slight odor of alcohol." Defendant admitted to drinking whiskey and taking Xanax and Suboxone earlier in the day. Based on these observations and Defendant's admission, the officer arrested Defendant for driving while intoxicated (DWI). After Defendant agreed to a blood draw pursuant to the Implied Consent Act, the officer transported Defendant to the San Juan Regional Medical Center (the Medical Center). The officer directed Danica Atwood, a hospital employee and licensed EMT, to perform the blood draw using a sealed blood draw kit. The Scientific Laboratory Division of the New Mexico Department of Health (SLD) subsequently tested Defendant's blood, which tested negative for alcohol but positive for marijuana-related metabolites, benzodiazepines, and synthetic opioids.

         {¶3} The State charged Defendant with one count of non-aggravated DWI, in violation of NMSA 1978, Section 66-8-102 (2016). Defendant moved to suppress the blood test results on the basis that Atwood was not qualified to perform blood draws under NMSA 1978, Section 66-8-103 (1978), which provides that "[o]nly a physician, licensed professional or practical nurse or laboratory technician or technologist employed by a hospital or physician shall withdraw blood from any person in the performance of a blood-alcohol test." After the magistrate court denied his motion to suppress, Defendant pleaded no contest, reserving his right to appeal the magistrate court's decision not to suppress the blood test results.

         {¶4} On appeal, the district court held an evidentiary hearing, during which Defendant argued that the district court should suppress the blood test results based on State v. Garcia, 2016-NMCA-044, ¶ 1, 370 P.3d 791 (holding that a licensed EMT did not fit within the statutory categories of persons "authorized to draw blood for the purpose of determining its alcohol or drug content under the Implied Consent Act"). In response, the State argued that, although an EMT license alone was not sufficient to qualify Atwood to draw blood pursuant to Section 66-8-103, her additional experience and training qualified her to do so as a laboratory technician or technologist. In support of the State's argument, Atwood testified to the following. At the time she drew Defendant's blood, Atwood held an EMT-basic license, and had been employed as an EMT and emergency department technician in the Medical Center emergency room for approximately four months. Atwood's job duties included drawing blood for medical laboratory testing, as well as performing blood draws at the request of law enforcement personnel. She worked three twelve-hour shifts per week and would draw blood from twenty-five people on average each shift. Atwood testified that, after initially being trained by other technicians and nurses in the manner in which blood is drawn at the Medical Center, she performed blood draws under supervision for six weeks until hospital personnel determined that she was competent to perform blood draws unsupervised. On cross-examination, Atwood confirmed that she never worked in a laboratory and that she was not licensed or certified as a phlebotomist.

         {¶5} Although Atwood stated that she never received any specific training pursuant to the Implied Consent Act, she explained some of the differences between drawing blood for medical laboratory testing and drawing blood for law enforcement purposes. For medical blood draws, technicians could draw blood out of an IV line, clean the puncture site with alcohol, and give the sample to another hospital employee for transport to a laboratory for testing. However, for "legal" blood draws, technicians had to clean the puncture site with a non-alcoholic substance, such as iodine, use the collection tubes provided by the officer, and hand the tubes directly to the officer after completing the draw. Atwood testified that she collected Defendant's blood using an unexpired, SLD-approved blood collection kit in accordance with the kit's instructions.

         {¶6} After the hearing, the district court granted Defendant's motion to suppress and entered findings of fact and conclusions of law. The district court found that

Defendant's blood was drawn by Danica Atwood, a hospital employee employed in dual capacities as an [EMT] and as an "Emergency 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."

         However, the district court concluded that this Court's "categorical holding" in Garcia, 2016-NMCA-044, ¶ 20, "that a person's 'license as an EMT does not qualify her to draw blood to determine its alcohol or drug content under the Implied Consent Act[, ]'" precluded a ruling that Atwood was the same or similar to a laboratory technician for purposes of Section 66-8-103. As such, the district court excluded the blood test results. The State timely appealed the district court's order pursuant to Section 39-3-3(B)(2), certifying that the appeal was "not taken for purpose of delay, and the evidence is a substantial proof of a fact material in the proceeding."


         I. The State May Appeal Pursuant to Section 39-3-3(B)(2)

         {¶7} Before considering the merits of the State's argument, we must determine the threshold issue of whether the State has a right to appeal. Defendant contends that the State cannot appeal the district court's exclusion of the blood test results because ...

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