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State v. Wiberg3/17/1988
GARCIA, Judge
Following a jury trial, defendant, Vincent Wiberg, was convicted of driving while under the influence of alcohol, 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.
ISSUES
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.
FACTS
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.
ISSUE 1 (Admissibility of blood-alcohol test results.)
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 hospita
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