This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. A-1-CA-35091 4 CHELSEA COSTELLO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Judith K. Nakamura, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 John Kloss, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Santa Fe, NM 15 Josephine H. Ford, Assistant Public Defender 16 Albuquerque, NM 17 for Appellant 18 MEMORANDUM OPINION 19 VANZI, Chief Judge. 202 {1} Defendant Chelsea Costello appeals from the district court’s judgment reversing 1 the metropolitan court’s suppression ruling in her favor. On appeal to this Court, 2 Defendant challenges the district court’s de termination that the State could introduce 3 her blood test results without the trial testimony of the blood-draw technician 4 (phlebotomist) as violating her right to confrontation. Specifically, Defendant 5 contends that the phlebotomist’s testimony was required to establish her qualification 6 to draw blood under NMSA 1978, Section 66- 8-103 (1978), as well as her compliance 7 with the State Laboratory Division (SLD) regulations for blood-draw procedures. We 8 affirm the district court’s decision. 9 BACKGROUND 10 {2} In the early morning hours of October 5, 2013, Officer Pedro Rico of the 11 Albuquerque Police Department (APD) res ponded to the scene of a single-vehicle 12 accident. When he arrived, Officer Rico f ound Defendant seated in the driver’s seat 13 of her Honda with the airbag deployed and the car against a light pole. Defendant, the 14 lone occupant in the vehicle, had red, bloodshot, watery eyes and a strong odor of 15 alcoholic beverages coming from her faci al area. She admitted drinking one beer 16 earlier in the evening. 17 {3} Officer Rico conducted a horizontal gaze nystagmus test at the scene but was 18 unable to perform a field sobriety test on Defendant becau se she started to complain 19 of chest and back pain. Defendant was transported to an emergency room by 203 ambulance. At the hospital, Officer Rico read Defendant her rights under the New 1 Mexico Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended 2 through 2015), and Defendant agreed to a blood draw. A phlebotomist arrived at 3 Officer Rico’s request and drew Defendant’s blood without incident. Officer Rico 4 tagged the blood sample into evidence and le ft Defendant in the care of the hospital. 5 He was subsequently notifie d that Defendant’s blood alc ohol content (BAC) was over 6 the legal limit. On December 17, 2013, O fficer Rico charged Defendant in the 7 metropolitan court (trial court) with drivi ng under the influence of intoxicating liquor, 8 contrary to NMSA 1978, Sec tion 66-8-102 (2010, amended 2016). 9 {4} Prior to the start of the bench trial on July 14, 2014, defense counsel notified 10 the trial court that Kathleen Wenzel, th e State’s witness from TriCore Reference 11 Laboratories who had drawn Defendant’s bl ood, was not present in the courtroom. On 12 that basis, defense counsel orally moved to exclude Wenzel. The State responded that 13 it could proceed without Wenzel’s testimony because Officer Chavez, who witnessed 14 the blood draw and was present to testify, could provide the necessary foundational 15 testimony that Wenzel would have provide d. After argument and additional briefing 16 from the parties, the trial court entered an order of dismissal finding that the State was 17 “unable to proceed on an impaired to the slightest degree theory.” In suppressing the 18 evidence, the court found that “the confront ation clause precluded a witness other than 194 the phlebotomist or other person who performed the blood draw complied with 1 [Section] 66-8-103.” 2 {5} The State timely appealed the metropolitan court’s decision to the district court 3 pursuant to Rule 7-703(A) NMRA. The di strict court reversed, concluding that 4 compliance with Section 66-8-103 is foundational and, thus, not subject to 5 confrontation clause guarantees. Defendant timely appealed the district court’s 6 decision reversing the metropolitan court’s suppression order. 7 DISCUSSION 8 {6} Defendant argues that the trial court correctly ruled th at she had a constitutional 9 right to confront the phlebotomist who took the blood sample in this case. Citing 10 Crawford v. Washington , 541 U.S. 36 (2004) and its proge ny, Defendant contends that 11 the district court erred in reversing th e trial court’s order and that she has a 12 constitutional right to confront Wenzel c oncerning her qualificati ons to take a blood 13 sample in accordance withthe accuracy-ensuring regulations. We disagree. 14 {7} “Questions of admissibility under the Confrontation Clause are questions of 15 law, which we review de novo. Generally, we review admissibility of evidence . . . for 16 an abuse of discretion.” State v. Gonzales , 2012-NMCA-034, ¶ 5, 274 P.3d 151 17 (internal quotation marks and citation omitted). 18 {8} The Sixth Amendment to the United Stat es Constitution provides that “[i]n all 19 criminal prosecutions, the accuse d shall enjoy the right . . . to be confronted with the 205 witnesses against him[.]” U.S. Const. amend. VI. Crawford signaled a fundamental 1 shift in Confrontation Clause jurispruden ce, concluding that an out-of-court statement 2 that is both testimonial and offered to prove the truth of the matter asserted may not 3 be admitted unless the declarant is unavailable and the defendant had a prior 4 opportunity to cross-examine the declaran t. 541 U.S. at 53-54. “[Statements] are 5 testimonial when . . . the primary purpose of the interrogation is to establish or prove 6 past events potentially relevant to later criminal prosecution.” Davis v. Washington , 7 547 U.S. 813, 822 (2006). 8 {9} Our courts have previously held thatcompliance with Section 66-8-103 relates 9 to foundational matters that do not imp licate the Confrontation Clause. In State v. 10 Dedman , the state argued that a venipuncture method used to draw a blood sample 11 was not a prerequisite to the admissibility of the blood alcohol report and that the 12 unavailability of the nurse who drew the blood sample to testify at trial did not require 13 the exclusion of the report on Sixth Amendment confrontation grounds. 2004-NMSC14 037, ¶ 1, 136 N.M. 561, 102 P.3d 628, overruled on other grounds by State v. 15 Bullcoming , 2010-NMSC-007, ¶¶ 1, 16, 147 N.M. 487, 226 P.3d 1 ( Bullcoming I ), 16 rev’d , Bullcoming v. New Mexico , 564 U.S. 647, 668 (2011) (Bullcoming II ). Our 17 Supreme Court held that (1) the report was not testimonial and that (2) the testimony 18 of the officer in whose pr esence the blood was drawn “provided sufficient foundation 19 for [the] admission of the report and that [the] lack of opportunity to cross-examine 206 the nurse who drew the sample did not violat e [the d]efendant’s confrontation rights.” 1 Dedman , 2004-NMSC-037, ¶¶ 1, 30, 45. After Dedmanwas decided, the Bullcoming 2 I Court, interpreting Melendez-Diaz v. Massachusetts , 557 U.S. 305 (2009), concluded 3 that blood alcohol reports were infact testimonial and overruled Dedman ’s holding 4 regarding that issue. Bullcoming I, 2010-NMSC-007, ¶¶ 13, 16. Bullcoming I did not 5 consider any other holdings in Dedman , in particular, with regard to the issue of 6 compliance with the blood sample collection regulatory requirement. 7 {10} Subsequently, in State v. Nez , 2010-NMCA-092, ¶ 1, 148 N.M. 914, 242 P.3d 8 481, this Court was asked on remand whether Bullcoming I changed our decision 9 upholding the admission of a BAC based on the precedent set in Dedman . We 10 concluded that it did not. In Nez , the defendant argued that because “the [s]tate did not 11 present any non-hearsay testimony sufficient to establish the method used to draw 12 blood and the qualifications of the blood drawer”—specifically that the state failed to 13 lay the necessary foundation to show comp liance with Section 66-8-103—the district 14 court abused its discreti on in admitting the report. Nez , 2010-NMCA-092, ¶ 12. After 15 describing the testimony from a law enforcement officer about his personal 16 observation of the nurse performing the defe ndant’s blood draw, we said that the 17 officer’s testimony provided an adequate foundation for the blood draw and that the 18 Confrontation Clause was not violated si mply because the person who took the sample 197 did not testify, thus reaffirming our original pre- Bullcoming I analysis. Id. ¶¶ 13-14, 1 16. 2 {11} Not long after the United Stat es Supreme Court decided Bullcoming II, 3 reversing our Supreme Court, we consid ered whether the Confrontation Clause 4 requires that a defendant havean opportunity to cross-examine a witness regarding the 5 underlying science and the accuracy of th e Intoxilyzer 5000 breathalyzer machine (IR 6 5000). State v. Anaya , 2012-NMCA-094, ¶ 1, 287 P.3d 956. In Anaya , we concluded 7 that “[n]othing in Melendez-Diazand Bullcoming [II ] requires the [s]tate to produce 8 a witness and provide foundational testim ony that the IR 5000 is scientifically 9 accurate and reliable in measuring the alcohol level in a person’s breath.” Anaya , 10 2012-NMCA-094, ¶ 20. In other words, wesaid, these issues are non-testimonial 11 because they are preliminary and foundati onal in nature, and “not all foundational 12 evidence implicates the Confrontation Clause.” Id. ¶¶ 21-22. Consequently, “the 13 Confrontation Clause did not apply to the preliminary evidence regarding the 14 scientific aspects for certifying the machin e because the witness that the defendant 15 demanded for cross-examination would presen t nothing more than preliminary factual 16 evidence to establish a foundation for the admi ssion of evidence to be used at trial.” 17 Id. ¶ 22 (alterations, internal quotation marks, and citation omitted) . We see little basis 18 for distinguishing this case from Anaya

. 198 {12} Here, the district court’s decision is in line with Dedmanand our decisions in 1 Nezand Anaya . Importantly, nothing in either Melendez-Diazor Bullcoming II 2 overrules those cases or changes our c onclusion. We hold that compliance with 3 Section 66-8-103 is a foundational issue and that the blood-draw procedures and 4 qualifications of the phlebotomist are non-te stimonial facts that do not implicate the 5 Confrontation Clause. Had Defendant wanted to challenge the phlebotomist’s 6 qualifications or the procedure she used to draw Defendant’s bl ood, Defendant could 7 have taken the necessary steps to introdu ce any evidence she believed was relevant, 8 including issuing a subpoena to secure the presence of the phlebotomist at trial. 9 {13} Defendant continues to ar gue—as she did below—that Melendez-Diazand 10 Bullcoming II compel a different result. We disagree. As a preliminary matter, 11 Defendant makes no serious argument as to why these cases are controlling except to 12 say that they are. It is true that in Melendez-Diaz , the United States Supreme Court 13 held that a certificate stating the seized s ubstance was cocaine falls within the “core 14 class of testimonial statements.” 557 U.S. at308, 310. And it is also true that the 15 Bullcoming II Court held that surrogate testimony of another analyst who did not take 16 part in the analysis or observe the report, could not substitute for the testimony of the 17 analyst who prepared the report. 564 U.S. at 661-63. However, neither of those 18 holdings has any bearing in this case. As we explained above, unlike the testimonial 199 statements at issue in Melendez-Diaz and Bullcoming II, the evidence at issue here is 1 foundational and, therefore, does not implicate the Confrontation Clause. 2 {14} We note also that the New Mexico Legi slature has established the procedures 3 necessary to ensure the accuracy of breath and blood tests by enacting Section 66-8- 4 103 (listing individuals authorized to drawblood), and by mandati ng that tests taken 5 pursuant to the Implied Consent Act be approved by SLD. See § 66-8-107(A). As a 6 result, the admissibility of blood test resu lts turns on each particular test and the 7 phlebotomist’s compliance with existing st atutes and regulations. These regulations 8 clearly exist to ensure that the result of a blood draw conducted by a phlebotomist is 9 accurate. 10 {15} In determining whether compliance with statutory or SLD procedures 11 implicates the Confrontation Clause, we havepreviously held that issues that are 12 preliminary and foundational innature are non-testimonial. See State v. Granillo13 Macias , 2008-NMCA-021, ¶¶ 16, 22-23, 143 N.M . 455, 176 P.3d 1187. We explained 14 in Granillo-Maciasthat preliminary factual evidence is non-testimonial because it 15 bears an attenuated relationship to convi ction and would require too much of an 16 inferential leap to serve as testim onial evidence of a defendant’s guilt. See id. ¶¶ 21- 17 23. Thus, the Confrontation Clause did notapply to preliminary factual evidence to 18 establish a foundation for the admission of evidence to be used at trial. Id. Our holding 19 in Granillo-Maciasis consistent with the United States Supreme Court’s subsequent 2010 holdings in Melendez-Diazand Bullcoming II. See Melendez-Diaz , 557 U.S. at 312- 1 13, 319-20, 322-24 (explaining that the Confr ontation Clause only applies to facts 2 regarding a defendant’s guilt or innocence, notto ensure the reliability of every piece 3 of evidence related to the defendant’s trial); see also Bullcoming II, 564 U.S. at 669 4 (noting that a statement is testimonial if it has “a primary purpose of creating an 5 out-of-court substitute for trial testimony” (internal quotation marks and citation 6 omitted)). Consequently, contrary to De fendant’s assertion, the phlebotomist’s 7 qualifications and compliance with statutory and regulatory standards are non8 testimonial facts and do not implicate the Confrontation Clause. 9 {16} As we have noted, the State offered av ailable witnesses “relating to the blood 10 drawer’s identity, qualifications, and manner of drawing the blood.” The State also 11 said that if the trial court held that language in the certificate signed by Wenzel was 12 testimonial, it could redact the certificate from the report. Because we have concluded 13 that compliance with Section 66-8-103 and SLD regulations is foundational, the State 14 may use hearsay evidence to establish these preliminary factual questions. 15 CONCLUSION 16 {17} The district court’s decision reversing the order of the Metropolitan Court is 17 affirmed. 18 {18} IT IS SO ORDERED. 1911 __________________________________ 1 LINDA M. VANZI, Chief Judge 2 WE CONCUR: 3

_________________________________ 4 HENRY M. BOHNHOFF, Judge 5

_________________________________ 6 EMIL J. KIEHNE, Judge 7