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State v. Wiberg3/17/1988
l 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 Pamp.1987) require that blood-alcohol test results based upon blood withdrawn by a nurse who is not employed by a hospital or a physician, as well as expert testimony based on those test results, be suppressed.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. {PA}
Page 155} 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. I
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