State v. Wiberg
| Decision Date | 17 March 1988 |
| Docket Number | No. 9964,9964 |
| Citation | 754 P.2d 529,1988 NMCA 22,107 N.M. 152 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Vincent Gunner WIBERG, Jr., Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Following a jury trial, defendant, Vincent Wiberg, was convicted of driving while under the influence of alochol, in violation of NMSA 1978, Section 66-8-102(A) (Repl.Pamp.1987); vehicular homicide while driving under the influence of alcohol, in violation of NMSA 1978, Section 66-8-101(A) (Repl.Pamp.1978); great bodily harm by vehicle while driving under the influence of alcohol, in violation of Section 66-8-101(B); and reckless driving, in violation of NMSA 1978, Section 66-8-113(A) (Repl.Pamp.1987). He appeals from his convictions. We affirm in part and reverse in part.
Several issues were raised in defendant's docketing statement and in his motion to amend. Of these, four have been briefed. The remaining issues are deemed abandoned. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985). We discuss the following four issues: (1) whether the trial court erred in denying defendant's motion to suppress the results of a blood-alcohol test, since the nurse who withdrew the blood was not employed by a physician or hospital; (2) whether defendant's right to an impartial trial was denied by the trial court's failure to excuse, for cause, a juror who expressed reservations about the use of alcohol; (3) whether driving under the influence of alcohol (DWI) is a lesser included offense of vehicular homicide while driving under the influence of alcohol; and (4) whether defendant's reckless driving conviction merges with his vehicular homicide conviction.
Defendant had been drinking. He admitted consuming at least two bourbons with beer chasers earlier in the evening. While operating his truck at a speed of approximately 40 miles per hour, defendant failed to stop at a stop sign, ran through the intersection and collided with a motorcycle on which Dennis Trujillo and Audra Fasulo were riding. Trujillo was killed and Fasulo suffered severe disfiguring and disabling injuries.
Defendant was arrested at the scene for DWI. Due to defendant's own injuries, no field sobriety tests were conducted. He was escorted to the University of New Mexico Hospital. Officer Conner Dailey testified that when he observed defendant at the hospital, he had an odor of alcohol on him, his eyes appeared bloodshot, his speech was slurred, and while sitting on the hospital bed, he swayed back and forth.
At the hospital, Sherman Henderson (Henderson), a licensed registered nurse, withdrew a sample of defendant's blood approximately two hours after the accident. Henderson was not, however, employed by a hospital or physician at the time he obtained a sample of defendant's blood. Rather, he was employed by Western Temporary Services, an agency under contract with the Albuquerque Police Department, to draw blood samples, test and screen blood. Defendant's blood sample indicated that he had a .16 percent blood-alcohol level.
Defendant moved to suppress the test results contending that Henderson was not qualified to extract the blood sample because he was neither employed by a hospital nor a physician. The motion was denied. Subsequently, test results of the blood sample were introduced at defendant's trial.
Defendant's chief contention is that NMSA 1978, Section 66-8-103 (Repl.Pamp.1987) requires that a nurse who withdraws blood for a blood-alcohol test be employed by a hospital or physician. Defendant then argues that Section 66-8-103; NMSA 1978, Sections 66-8-109(A) and 66-8-110(A) (Repl.Pamp.1987) require that blood-alcohol test results based upon blood withdrawn by a nurse who is not employed by a hospital or a physician, as well as expert testimony based on those test results, be suppressed. Finally, defendant argues that the admission of the blood-alcohol test results and testimony concerning the results was so damaging that it cannot constitute harmless error.
Because we believe that Section 66-8-103 does not require that a registered nurse or licensed professional nurse be employed by a hospital or physician as a prerequisite to the admissibility of blood test evidence, we do not discuss defendant's remaining two contentions.
The relevant portion of Section 66-8-103 provides: "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." Defendant's argument, similar to that advanced and rejected in State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973), is that the comma separates classes, or members of a class, and therefore the placement of the comma between the word "physician" and all the other listed occupations, together with the use of "or" between the other occupations, indicates a legislative intent to group all the occupations listed after "physician" into one class commonly subject to the employment requirement. Defendant further argues that due to the penal implications involved in the use of blood-alcohol testing, strict construction of Section 66-8-103 is required. Finally, defendant argues that the requirement for independent employment by a hospital or physician ensures the reliability of the blood-alcohol test. We disagree. The requirement of employment by a hospital or physician applies only to "technologists."
We have previously acknowledged that the cited language in Section 66-8-103 is ambiguous. See State v. Trujillo. In Trujillo, we ascertained the legislative intent of the statute by applying rules of construction. Statutes are to be read and understood primarily according to their grammatical sense, unless it is apparent that the author intended something different. Aetna Finance Co. v. Gutierrez, 96 N.M. 538, 632 P.2d 1176 (1981); In re Goldsworthy's Estate, 45 N.M. 406, 115 P.2d 627 (1941).
Although use of a comma after "physician" and the failure to use a comma between the other occupations listed in Section 66-8-103 may support the inference that the other occupations are grouped together, defendant's conclusion that all members of the group are subject to the employment condition does not follow from that grouping alone. In Trujillo, we characterized the same argument as an "expansive reading of the statute" which required adding words which were not part of the statute as enacted. Nonetheless, while defendant's grammatical argument may, at first glance, seem to have merit, there is another rule of statutory construction which we believe is applicable. It is the "last antecedent doctrine." See In re Goldsworthy's Estate. The doctrine provides that relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote. Id. Here, the qualifying words are "employed by a hospital or physician." We apply that phrase to the preceding term "technologist" but not to the more remote terms. See id.
Pursuant to the doctrine of the last antecedent, the grammatical sense of the language in Section 66-8-103 would be that the employment condition does not apply to a licensed professional nurse. In the absence of a showing that something different was intended by the legislature, we believe that this is how the statute should be read and understood.
In Trujillo, we settled on a construction of the statute that would accomplish the legislative purpose of deterring drunk drivers and aid in discovering and removing the intoxicated driver from the highways. The construction urged upon us in Trujillo would have thwarted that salutary, and indeed necessary, legislative purpose. So too, here, the construction urged by defendant would significantly and unnecessarily limit the classes of individuals who could assist in furthering the statute's legislative purpose.
Henderson is a licensed registered nurse. He obtained an associate degree in nursing and has successfully completed competency and licensing examinations administered by the State of New Mexico. A registered nurse is one who practices professional nursing, and whose name is listed in the register of licensed registered nurses maintained by the state board of nursing. NMSA 1978, Sec. 61-3-3(C) (Repl.1986). Section 61-3-3(A) defines professional nursing as:
[T]he performance of any act in which substantial knowledge derived from the biological, physical and behavioral sciences is applied:
(1) to the care, counsel and health teaching of persons who are either experiencing changes in the normal health processes or who require assistance in the maintenance of health, in the management of illness, injury or infirmity or in the achievement of a dignified death; or
(2) to the administration of medications and treatments as prescribed by a person authorized in this state to prescribe such medications and treatments.
Before one can qualify for licensure as a professional nurse, there is a graduation requirement from a four-year high school course of study or its equivalent, the graduation from an approved school of nursing, and the successful completion of the national licensing examination for registered nurses. NMSA 1978, Secs. 61-3-13; 61-3-14 (Repl.1986). New Mexico does not impose greater experience, educational qualifications or skill requirements on professional nurses who are employed by physicians or hospitals, as opposed to those professional nurses who are not. The requirements to be a licensed professional nurse or registered nurse are...
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Suazo, Matter of
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