State v. Warford

514 P.3d 31

STATE of New Mexico, Plaintiff-Appellee,

v.Roger WARFORD, Defendant-Appellant.

No. A-1-CA-36798

Court of Appeals of New Mexico.

Filing Date: April 14, 2022

Hector H. Balderas, Attorney General, Eran Sharon, Assistant Attorney General, Santa Fe, NM, for Appellee

Lindsey Law Firm, LLC, Daniel R. Lindsey, Clovis, NM for Appellant

MEDINA, Judge.

{1} After conditionally pleading guilty to driving while under the influence of intoxicating liquor or drugs (DWI), contrary to NMSA 1978, § 66-8-102(A) (2010, amended 2016)¹ , Roger Warford (Defendant) appeals the district court's denial of his motion to exclude the results of a blood draw performed pursuant to the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2019). Defendant argues the phlebotomist who drew his blood was not authorized to do so because, according to Defendant, a phlebotomist is not a laboratory technician under NMSA 1978, § 66-8-103 (1978) and the phlebotomist in this case was not employed by a hospital because her direct employer was a laboratory that contracted with the hospital where she worked. We conclude, consistent with our Supreme Court's recent decision in State v. Adams , 2022-NMSC-008, 503 P.3d 1130, that phlebotomists who have adequate training and experience are qualified as laboratory technicians to perform legal blood draws under the Implied Consent Act so long as they were employed to do so by a hospital or physician.

Id. ¶ 1. We further conclude that, given the facts and circumstances presented in this case, the phlebotomist who drew Defendant's blood was employed by a hospital. Finally, we conclude that Defendant's additional argument that there was insufficient evidence to support the enhancement of his DWI conviction is without merit. We affirm.

BACKGROUND

{2} In January 2015, Defendant drove into a motel parking lot and parked next to a vehicle in which two police officers were conducting surveillance of a motel room pending receipt of a search warrant. Defendant stepped out of his truck, staggered to the passenger side of the officers’ vehicle, and asked them if they were police officers. Defendant then walked towards the hotel, went upstairs, and approached the room the officers intended to search. The officers prevented Defendant from entering the room. Defendant had bloodshot and watery eyes, an odor of alcohol on his breath, and slurred speech. He also had two sixteen-ounce beer cans, one half empty and one unopened, in his jacket. Defendant admitted to having consumed five to six sixteen-ounce beers.

{3} A uniformed officer was summoned to investigate Defendant for DWI. Defendant failed standardized field sobriety tests and was arrested for DWI. Defendant agreed to a blood test and was transported to the Plains Regional Medical Center (PRMC), a hospital in Clovis, where Mirna Gaxiola, a certified phlebotomist, drew Defendant's blood for testing.

{4} Defendant was charged with DWI (4th Offense). Defendant moved to exclude his blood test results. Defendant asserted the evidence was insufficient to demonstrate the testing was conducted in accordance with the Implied Consent Act, under Section 66-8-103, 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." Id. ; see also § 66-8-109(A) ("Only the persons authorized by Section 66-8-103 ... shall withdraw blood from any person for the purpose of determining its alcohol or drug content.").

{5} The State responded that under Section 66-8-103, laboratory technicians are included in the categories of approved medical personnel authorized to draw blood under Section 66-8-109 and that under 7.33.2.15(A)(1) NMAC, the term laboratory technician includes phlebotomists. From this, the State argued that Gaxiola was authorized to draw Defendant's blood under Section 66-8-103 because she attended and completed a Phlebotomy Technique Training course at Eastern New Mexico University, and upon completion was certified as a Phlebotomy Technician.

{6} During a hearing on the motion, Defendant argued the district court was required to exclude the blood test because Gaxiola did not fall into any of the statutory categories, and therefore was not qualified to conduct the test. Defendant provided the district court with a copy of a recorded pretrial interview he conducted of Gaxiola in which she stated she was a certified phlebotomist, not a licensed professional, laboratory technologist or technician, or hospital employee.

{7} At a later hearing, the district court denied Defendant's motion to exclude, explaining that, despite Gaxiola's statements, based on its own legal research and given Gaxiola's status as a phlebotomist for TriCore Laboratory (TriCore), which contracts with the hospital to perform all of the hospital's blood services, she "is a technician under the statute employed by the hospital for the purposes of the Implied Consent Act."

{8} Defendant entered a conditional plea of no contest to DWI, reserving the right to appeal the ruling on any motion filed in the case. Defendant then appealed to this Court. After ordering supplemental briefing on two issues,² we certified this case to the New Mexico Supreme Court, as it presented a similar question of statutory construction to six other cases before our Supreme Court.

{9} Following acceptance of the certification of this case, our Supreme Court issued an opinion in Adams , holding that an emergency medical technician (EMT) who was employed by a hospital or physician and had adequate training and experience in performing blood draws qualified as a "laboratory technician" for the purposes of Section 66-8-103. Adams , 2022-NMSC-008, ¶ 34, 503 P.3d 1130. Our Supreme Court subsequently quashed certification of this case, returning it to this Court.

DISCUSSION

I. The District Court's Denial of the Motion to Exclude the Blood Test Results Was Not an Abuse of Discretion

{10} Generally, "[w]e review the [district] court's decision to exclude or admit evidence for an abuse of discretion." State v. Hanson , 2015-NMCA-057, ¶ 5, 348 P.3d 1070. "This case requires us to engage in statutory interpretation to determine what the appropriate foundation is for admitting the results of blood tests to determine the content of alcohol or drugs under the Implied Consent Act. We do so under a de novo standard of review." State v. Garcia , 2016-NMCA-044, ¶ 8, 370 P.3d 791.

{11} The Implied Consent Act provides in relevant part that "[o]nly the persons authorized by Section 66-8-103 ... shall withdraw blood from any person for the purpose of determining its alcohol or drug content." Section 66-8-109(A). Section 66-8-103 in turn limits the class of persons who may withdraw blood to the following: "Only 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."

{12} On appeal, Defendant contends that the phlebotomist who drew his blood does not qualify as a "laboratory technician," is not employed by a hospital or physician, and, as a result, was not authorized to perform blood draws under Section 66-8-103. We first address whether the phlebotomist in this case qualified as a laboratory technician. Concluding she does, we next address whether the fact that the phlebotomist was employed by TriCore, and not directly with the hospital, renders her unqualified. We conclude that she was qualified.

A. The Phlebotomist in This Case Qualified as a Laboratory Technician

{13} In light of our Supreme Court's recent opinion in Adams and for the reasons that follow, we hold that the district court correctly concluded that Gaxiola was a laboratory technician under Section 66-8-103.

{14} In Adams , addressing arguments highly similar to those here, our Supreme Court determined that an EMT is qualified to draw blood as a "laboratory technician" under Section 66-8-103 "so long as they were employed to do so by a hospital or physician and have adequate training and experience." Adams , 2022-NMSC-008, ¶ 1, 503 P.3d 1130. Adams addressed whether this Court's decision in Garcia , which held that the EMT in that case was not authorized to draw blood under Section 66-8-103, precluded all EMTs from being qualified to draw blood under that provision. See Garcia , 2016-NMCA-044, ¶¶ 1, 21-24, 370 P.3d 791. The defendant in Adams argued that Garcia stood for the proposition that EMTs did not fall under the five enumerated categories of those who may perform blood draws and that the Legislature did not intend to authorize legal blood draws by anyone falling outside those categories. Adams , 2022-NMSC-008, ¶ 17, 503 P.3d 1130. Our Supreme Court rejected these contentions. The Court concluded, after examining the dictionary definitions of "laboratory technician," that the term "laboratory technician" was ambiguous on its face, id. ¶¶ 11-15, and then proceeded to examine the legislative purpose of the Implied Consent Act, see id. ¶¶ 16-29. As part of this examination, the Court contrasted the facts of Garcia with the facts in Adams . In Garcia , the EMT who performed the blood draw did so improperly and was not trained to perform blood draws for the purposes of the Implied Consent Act. Adams , 2022-NMSC-008, ¶¶ 28-29, 503 P.3d 1130. In contrast, the EMT who performed the blood draw in Adams had specifically been trained to perform blood draws "for [the] purposes of determining drug and alcohol content" and one of her job duties was to "perform legal blood-alcohol blood draws at the request of law enforcement personnel." Id. ¶ 31 (alteration, internal quotation marks, and citation omitted). The EMT also had performed thousands of blood draws and performed the contested blood draw in accordance with the instructions in the Scientific...