A. The scientific laboratory division of the department of health is authorized to promulgate and approve satisfactory techniques or methods to test persons believed to be operating a motor vehicle or a motorboat under the influence of drugs or alcohol and to issue certification for test operators and their instructors that shall be subject to termination or revocation at the discretion of the scientific laboratory division. The scientific laboratory division is further authorized to establish or approve quality control measures for alcohol breath testing and to establish or approve standards of training necessary to ensure the qualifications of individuals conducting these analyses or collections.
B. The scientific laboratory division shall establish criteria and specifications for equipment, training, quality control, testing methodology, blood-breath relationships and the certification of operators, instructors and collectors of breath samples.
C. All laboratories analyzing breath, blood or urine samples pursuant to the provisions of the Implied Consent Act [66-8-105 to 66-8-112 NMSA 1978] and the Boating While Intoxicated Act [66-13-1 to 66-13-13 NMSA 1978] shall be certified by the scientific laboratory division. The certification shall be granted in accordance with the rules and regulations of the scientific laboratory division and shall be subject to termination or revocation for cause.
History: Laws 1981, ch. 165, § 1; 2003, ch. 241, § 14.
Cross references. — For provisions authorizing the performance of a blood-alcohol test, see 66-8-103, 66-8-104 and 66-8-109 NMSA 1978.
The 2003 amendment, effective July 1, 2003, in Subsection A, substituted "department of health" for "department of health and environment"; and inserted "or a motorboat" following "motor vehicle"; and in Subsection C, inserted "and the Boating While Intoxicated Act" following "Implied Consent Act".
Failure to observe defendant for twenty minutes. — A breath alcohol test taken after the defendant was continuously observed for only fifteen minutes was not admissible in her criminal case for driving while intoxicated, because it did not comply with a department of health regulation requiring breath samples to be collected only after the subject has been under continuous observation for at least 20 minutes prior to collection of the first breath sample. State v. Gardner, 1998-NMCA-160, 126 N.M. 125, 967 P.2d 465, cert. denied, 126 N.M. 107, 967 P.2d 447.
Duty to make an accurate record. — The statutory duty of the state laboratory division to monitor and certify all blood-alcohol testing and to establish quality control measures by regulation imposes a duty on the state laboratory to make an accurate record of blood-alcohol test results that qualifies as a reliable business record. State v. Christian, 1995-NMCA-027, 119 N.M. 776, 895 P.2d 676, cert. denied, 119 N.M. 514, 892 P.2d 961.
Breath alcohol instruments treated differently than equipment for purposes of foundational requirements. — The legislature has delegated full authority to the scientific laboratory division (SLD) over the testing of persons believed to be DUI, including the establishment of criteria and specifications for equipment, quality control, testing methodology and standards, and the certification of breath alcohol instruments, operators, and instructors. SLD regulations impose extensive and explicit certification requirements on instruments, including that each individual instrument have a current certificate evidencing compliance with SLD regulations. In contrast, the only requirements for equipment stated in the regulations are that SLD approve and maintain a list of approved manufacturer's equipment. The regulations contain no requirement that SLD or certified instrument operators must confirm that each individual component of the breath alcohol instrument are SLD-approved before a breath alcohol test (BAT) is administered, and the regulations contain no indication that such individual confirmation is necessary to ensure the accuracy of the BAT result. State v. Hobbs, 2016-NMCA-022, cert. denied, 2016-NMCERT-002.
Legislature did not intend to create a statutory right when it enacted this section, or to make compliance with regulations promulgated under this section mandatory. State v. Watkins, 1986-NMCA-080, 104 N.M. 561, 724 P.2d 769, writ dismissed, 104 N.M. 522, 724 P.2d 231.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Authentication of blood sample taken from human body for purposes of determining blood alcohol content, 76 A.L.R.5th 1.
Authentication of blood sample taken from human body for purposes other than determining blood alcohol content, 77 A.L.R.5th 201.
Authentication of organic nonblood specimen taken from human body for purposes of analysis, 78 A.L.R.5th 1.
Structure New Mexico Statutes
Chapter 24 - Health and Safety
Section 24-1-3 - Powers and authority of department.
Section 24-1-4.1 - Certified nurse-midwives; prescriptive, distributing and administering authority.
Section 24-1-5 - Licensure of health facilities; hearings; appeals.
Section 24-1-5.2 - Health facilities; intermediate sanctions; civil penalty.
Section 24-1-5.4 - Plan of growth; requirements; reporting.
Section 24-1-5.6 - Northern New Mexico substance abuse treatment pilot project.
Section 24-1-5.7 - Methadone clinics; regulation by the human services department.
Section 24-1-5.8 - Legislative findings; licensing requirements for certain hospitals.
Section 24-1-5.9 - Reporting requirements.
Section 24-1-5.10 - Federal participation required; exception.
Section 24-1-6 - Tests required for newborn infants.
Section 24-1-6.1 - Newborn hearing testing required; department of health.
Section 24-1-7 - Sexually transmitted infections; reports of cases.
Section 24-1-9.3 - Sexually transmitted infections; mandatory counseling.
Section 24-1-9.4 - Sexually transmitted infections; confidentiality.
Section 24-1-9.6 - Sexually transmitted infections; disclosure.
Section 24-1-10 - Pregnancy; serological test for syphilis.
Section 24-1-11 - Reporting of blood tests.
Section 24-1-12 - Health certificates; filing.
Section 24-1-13 - Pregnancy; capacity to consent to examination and diagnosis.
Section 24-1-13.2 - Shaken baby syndrome prevention.
Section 24-1-14 - [Sterilization;] special qualifications prohibited.
Section 24-1-15 - Isolation; quarantine; protocol.
Section 24-1-15.1 - Protocol for management of active tuberculosis.
Section 24-1-15.2 - Conditions of public health importance; reporting.
Section 24-1-15.3 - Conditions of public health importance; testing; screening.
Section 24-1-16 - Inspection definitions.
Section 24-1-17 - Inspectorial search by consent.
Section 24-1-18 - Inspection searches.
Section 24-1-19 - Emergency inspectorial searches.
Section 24-1-20 - Records confidential.
Section 24-1-22 - Scientific laboratory division; testing methods; certification.
Section 24-1-25 - Holly Gonzales experimental treatment fund created.
Section 24-1-28 - Behavioral health planning council created; powers and duties; membership.
Section 24-1-29 - Commission created; members; duties.
Section 24-1-30 - Hand washing facilities; requirement.
Section 24-1-31 - Save our children's sight fund created.
Section 24-1-32 - Notice of the need for further vision evaluation and availability of funds.
Section 24-1-33 - Communication regarding reconstructive breast surgery.
Section 24-1-35 - Assisted living facilities contracts; limit on charges after resident death.
Section 24-1-36 - Statewide community-based adult fall risk awareness and prevention program.
Section 24-1-37 - Lay caregiver; aftercare; designation.
Section 24-1-38 - Hospitals; requirement to offer influenza and pneumococcal immunizations.
Section 24-1-39 - Mammograms; health facilities; breast density disclosure.
Section 24-1-42 - Eligibility for state or local health benefits.