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. No such physician, nurse, technician or technologist who withdraws blood from any person in the performance of a blood-alcohol test that has been directed by any police officer, or by any judicial or probation officer, shall be held liable in any civil or criminal action for assault, battery, false imprisonment or any conduct of any police officer, except for negligence, nor shall any person assisting in the performance of such a test, or any hospital wherein blood is withdrawn in the performance of such a test, be subject to civil or criminal liability for assault, battery, false imprisonment or any conduct of any police officer, except for negligence. History: 1953 Comp., § 64-22-2.1, enacted by Laws 1967, ch. 160, § 1; recompiled as 1953 Comp., § 64-8-103, by Laws 1978, ch. 35, § 511. Purpose of section is two-fold: (1) to insure the safety and protection of the person being subjected to the test, and (2) to insure reliability of the sample. Steere Tank Lines, Inc. v. Rogers , 1978-NMSC-049, 91 N.M. 768, 581 P.2d 456. State satisfied foundational burden of showing method of drawing blood. — Where a police officer testified that the officer obtained a search warrant to extract defendant's blood; the blood was extracted at a medical center by a registered nurse; a SLD-approved blood collection kit was used to extract the blood; the officer observed the blood draw; the officer and the nurse signed the completed report of blood alcohol analysis that went with the collection kit; the nurse wore a uniform and had a medical center identification tag which included the nurse's picture, name and title; the nurse used the contents of the collection kit to draw blood, including a non-alcohol based swab; the nurse used the SLD-provided vacuum tubes to collect blood and gave the vacuum tubes to the officer; and the officer labeled and sealed the vacuum tubes and mailed the form and the blood samples to the state laboratory division, the evidence satisfied the state's foundational burden for admission of the report sufficient to withstand defendant's objection to the admission of the report on the ground that the state did not establish the propriety of the blood draw and the qualifications of the blood drawer. State v. Nez , 2010-NMCA-092, 148 N.M. 914, 242 P.3d 481, cert. denied, 2010-NMCERT-009, 149 N.M. 49, 243 P.3d 753. The state met its foundational burden of establishing that the blood drawer was qualified. — Where defendant was arrested for driving while under the influence of intoxicating liquor or drugs, and where defendant consented to a blood test which indicated that he had a blood alcohol content of .08, and where defendant claimed that the evidence was insufficient to establish his blood was drawn by an authorized individual, the district court did not abuse its discretion in finding the officer's testimony sufficient to satisfy the state's foundational burden of establishing that the blood drawer was qualified where the officer testified that he was present at the hospital during the blood draw, that he provided hospital staff a blood draw kit approved by the state laboratory division, that he ensured the person who drew defendant's blood was certified by the hospital to draw blood, and saw the blood draw performed by a person he knew was either a technician or a certified nurse employed by the hospital. State v. Franklin , 2020-NMCA-016. Federal claims. — Where a nurse withdrew an arrested motorist's blood for a blood-alcohol test at the behest of the ostensibly legal order of a police officer, the nurse's actions were not unreasonable and hence not a violation of the arrested motorist's Fourth Amendment rights, and therefore summary judgment in the nurse's favor was appropriate on the arrested motorist's 42 U.S.C. § 1983 claims against her. Marshall v. Columbia Lea Reg'l Hosp. , 345 F.3d 1157 (10th Cir. 2003), appeal after remand , 474 F.3d 733 (10th Cir. 2007). Blood sample taken from corpse. — Although there may have been other techniques available for withdrawing a blood sample or other fluids which could have been tested for alcohol, and nothing in the record indicated that the procedure used could have, or did, result in an unreliable blood sample, this section does not apply to a blood sample taken from a corpse by a deputy medical examiner. Steere Tank Lines, Inc. v. Rogers , 1978-NMSC-049, 91 N.M. 768, 581 P.2d 456. An emergency medical technician is not qualified to perform blood draws under the Implied Consent Act. — Where defendant was charged with causing great bodily harm by vehicle while driving under the influence of alcohol and drugs, the district court did not err in granting defendant's motion to suppress the results of the blood test on the grounds that the emergency medical technician (EMT) was not qualified to perform blood draws under this section, because the EMT did not satisfy any of the categories that are listed as the only ones qualified to draw blood samples under the Implied Consent Act. State v. Garcia , 2016-NMCA-044, cert. granted. "Laboratory technician" construed. — In order for a medical professional to qualify as a "laboratory technician" for the purposes of performing legal blood draws, the person must be employed by a hospital or physician to perform blood draws, trained to perform legal blood draws, and have on-the-job experience in doing so. State v. Adams , 2022-NMSC-008, aff'g 2019-NMCA-043, 447 P.3d 1142. EMTs, employed by a hospital or physician and who possess proper training and experience in drawing blood, are authorized to perform legal blood draw tests as a "laboratory technician." — Where defendant was arrested for driving while under the influence of intoxicating liquor or drugs, and where the arresting officer, after transporting defendant to the San Juan regional medical center, requested that an emergency department technician, who was also licensed as an EMT, draw defendant's blood using a scientific laboratory division blood draw kit, and where the defendant moved to suppress the test results on the basis that the EMT was not qualified to draw blood under this section, the district court erred in granting defendant's motion, because EMTs who, along with their certification, have the training and experience in the skill of drawing blood to perform legal blood draw tests and who are employed by a hospital or physician to do so, furthers the purpose of the statute to ensure the safety of the patient and the reliability of the blood sample, and in this case, the EMT was employed by the San Juan regional medical center, one of her duties was to perform legal blood-alcohol blood draws at the request of law enforcement personnel, was taught how to perform blood draws by other nurses and technicians, and completed a six-week orientation period during which another employee supervised her work. State v. Adams , 2022-NMSC-008, aff'g 2019-NMCA-043, 447 P.3d 1142. "Laboratory technician" defined. — An individual qualifies as a laboratory technician for purposes of this section so long as a hospital or physician determined that the employee, despite the employee's official title, was qualified to perform blood draws in accordance with accepted medical standards based on the employee's demonstrable skills, training, and experience. State v. Adams , 2019-NMCA-043, 447 P.3d 1142, aff'd by 2022-NMSC-008. Emergency medical technician qualified as a laboratory technician. — Where defendant was arrested for driving while intoxicated, and where defendant consented to a blood draw pursuant to the Implied Consent Act (Act), 66-8-105 to 66-8-112 NMSA 1978, which was performed by an emergency medical technician (EMT) employed by a hospital, the district court abused its discretion in excluding the results of defendant's blood test on the basis that the EMT who drew defendant's blood was not authorized to do so under the Act, because although an EMT license alone was not sufficient to qualify the EMT to draw blood pursuant to 66-8-103 NMSA 1978, the EMT's additional experience and training qualified her to do so as a laboratory technician or a phlebotomist under this section. State v. Adams , 2019-NMCA-043, 447 P.3d 1142, aff'd by 2022-NMSC-008. Certified phlebotomist was a laboratory technician for purposes of the Implied Consent Act. — Where defendant was arrested for DWI, agreed to a blood test and was transported to a hospital where a certified phlebotomist drew his blood for testing, and where defendant moved to exclude his blood test results, asserting the evidence was insufficient to demonstrate the testing was conducted in accordance with § 66-8-103 NMSA 1978, the district court did not abuse its discretion in denying defendant's motion and in concluding that the certified phlebotomist was qualified to draw blood as a laboratory technician, because the phlebotomist in this case completed a phlebotomy course from eastern New Mexico university, received a certificate demonstrating that she was a certified phlebotomist, was hired as a clinical lab assistant to perform blood draws, received additional training in blood draw procedures, and performed approximately fifty blood draws during each of her shifts. The phlebotomist in this case had the requisite training and experience to draw defendant's blood in accordance with the Implied Consent Act. State v. Warford , 2022-NMCA-034. Certified phlebotomist was "employed" by a hospital within the meaning of the Implied Consent Act. — Where defendant was arrested for DWI, agreed to a blood test and was transported to a hospital where a certified phlebotomist drew his blood for testing, and where defendant moved to exclude his blood test results, asserting that even if the phlebotomist was deemed a technician or technologist, she was not qualified to perform his blood draw because she was not employed by a hospital or physician as specified in § 66-8-103 NMSA 1978, the district court did not abuse its discretion in denying defendant's motion to exclude, because the hospital contracted with the company that employed the phlebotomist, which hired her to perform blood draws, trained her in blood-draw procedures and determined that she was qualified to perform blood draws, including legal blood-draw tests; the phlebotomist was an employee of the hospital for the purposes of the Implied Consent Act. State v. Warford , 2022-NMCA-034. Nurse not required to be employed by hospital or physician. — This section does not require that the licensed professional nurse or registered nurse be employed by a hospital or physician in order to withdraw blood for blood-alcohol tests. The requirement of employment by a hospital or physician applies only to "technologists." State v. Wiberg , 1988-NMCA-022, 107 N.M. 152, 754 P.2d 529, cert. denied, 107 N.M. 106, 753 P.2d 352. Technologist need not be licensed. — In enacting this section, the legislature did not intend that a technologist must be licensed in order to be authorized to withdraw blood, since there were no provisions for the licensing of technologists. State v. Trujillo , 1973-NMCA-076, 85 N.M. 208, 510 P.2d 1079. Am. Jur. 2d, A.L.R. and C.J.S. references. — Intoxication from specified percentages of alcohol present in system, construction and application of statutes creating presumption or other inference, 16 A.L.R.3d 748. Duty of law enforcement officer to offer suspect chemical test under implied consent law, 95 A.L.R.3d 710. Evidence of automobile passenger's blood-alcohol level as admissible in support of defense that passenger was contributorily negligent or assumed risk of automobile accident, 5 A.L.R.4th 1194.
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