Krause v. State

¶1filed a concurring opinion.

¶2There seems to be confusion on the meanings of “emergency medical.services” (EMS) and “emergency medical technician” (EMT). The governing statute is Health and Safety Code Chapter 773, which “may be cited as the Emergency Health Care Act.” Id. at § 773.001. Section 773.002 states, “The purpose of this chapter is to provide for the prompt and efficient transportation of sick and injured patients, after necessary stabilization, and to encourage public access to that transportation in each area of the state.”

¶3The terms at issue are defined in Section 773.003. “ ‘Emergency medical services’ means services used to respond to an individual’s perceived need for immediate medical care and to prevent death or aggravation of physiological or psychological illness or injury.” Id. at (8). I understand that to mean an entity with employ*88ees who provide medical assistance as first responders to emergencies such as fires, traffic accidents, heart attacks, strokes, and violent crime. “ ‘Emergency medical services personnel’ means: (A) emergency care attendant; (B) emergency medical technicians; (C) emergency medical technicians — intermediate; (D) emergency medical technicians — paramedic; or (E) licensed paramedic.” Id. at (10). All of these definitions must be considered in the context of the statute: “to provide for the prompt and efficient transportation of sick and injured patients, after necessary stabilization .1Id. at (10). I understand this to mean the medically trained persons who are employed by an emergency medical service to transport an ill or injured person.2

¶4The enumerated types of emergency medical services personnel in Section 773.003 are based on the level of training. Sections 773.046-773.0495 set out the standards for such personnel. An emergency care attendant must be certified as “minimally proficient to provide emergency pre-hospital care by providing initial aid that promotes comfort and avoids aggravation of an injury or illness,” otherwise known as first aid. Such a person is not required to have a high-school diploma or a GED. Section 773.046. Escalating training levels are required for the other categories, with paramedics being “minimally proficient to provide advanced life support that includes initiation under medical supervision of certain procedures,” including intravenous therapy, intubation, defibrillation, and drug therapy and must also have completed “a curriculum that includes college-level course work....” Section 773.0495.

¶5The person who drew appellant’s blood, Ms. Lopez, was classified by her employer, the hospital, as an EMT-I. Such a person is certified “as minimally proficient to provide emergency prehospital care by initiating under medical supervision certain procedures, including intravenous therapy and endotracheal or esophageal intubation.” Section 773.048. Presumably, if she is “minimally proficient” at inserting an IV needle into a vein, she is also “minimally proficient” at inserting a needle into a vein to withdraw a sample of blood.3 A change of job title by her employer did not affect her standing as an EMT-I.

¶6It is clear from the language of the statute that the legislature intended to regulate those who transport patients from the scene of the injury to a hospital. Ms. Lopez was in no way involved in the transportation of injured or ill patients and so, by the clear language of the statute, is not “emergency medical services personnel” for the purposes of Transportation Code § 724.017. She was employed by the hospital to draw samples of blood, was qualified to do so, and had an office in the hospital *89for that purpose. And her office in the hospital was a sanitary place. An ambulance is likely to become an unsanitary place, contaminated with any number of substances such as soot from a fire, exsan-guinated blood from the patient or other persons, and dirt, vegetation, and glass fragments from a traffic accident. Under such conditions, the taking of a blood draw by a member of the ambulance crew is not appropriate. The goal of transportation is to get the patient to the hospital alive. Drawing blood for a test for blood-alcohol concentration is probably not high on the to-do list, nor should it be.

¶7I think that Ms. Lopez is just the sort of “qualified technician” that the legislature had in mind when it established rules for who should be performing blood draws pursuant to Texas Transportation Code § 724.017.

¶8With these comments, I join the opinion of the Court.

¶12filed a concurring opinion.

¶13I join the majority opinion. I agree that this Court must reverse the judgment of the court of appeals and remand the case of Robert Randall Krause, appellant. I write separately, however, to explain (1) why statutory provisions outside of the Transportation Code should not apply in deciding the meaning of a term used within the Transportation Code, and (2) why I believe that the better practice for this Court would be to clearly set forth a more black-and-white rule that would be more understandable for police officers and trial courts with respect to phlebotomists.

¶14I. Comparison of Transportation Code and Health and Safety Code

¶15It is clear that Rachel Lopez, the person who drew appellant’s blood, was a “qualified technician” within the ordinary meaning of that term. She was hired by the hospital where she had worked for six years and where her duties were limited to drawing blood. She drew 50 to 100 blood samples each day there. She had also completed one semester of coursework at San Jacinto College North, a local community college. This coursework, combined with her practical experience at the hospital, qualified Lopez to conduct a variety of medical procedures, including blood draws, cardiopulmonary resuscitation, electrocardiograms, intravenous therapy, intubation, and tracheotomies. It would seem irrational to say that she was a not “qualified technician” as that term is ordinarily understood.

¶16The disposition of this appeal rests on the Legislature’s intent to exclude someone like her from drawing blood when she was acting as “emergency medical services personnel.” See Tex. Transp. Code § 724.017. Section 724.017 of the Texas Transportation Code states, “Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen. ...” Id. It also provides that “qualified technician” does not include “emergency medical services personnel.” Id. “Emergency medical services personnel” is not defined in the Transportation Code. See id. That term is defined, however, in the Texas Health and Safety Code, which states, “In this chapter: ... ‘[ejmergency medical services personnel’ means: ... emergency medical technicians — intermediate,” which we refer to as “EMT-I.” Tex. Health & Safety Code. § 773.003(10)(C). If the definition in the Texas Health and Safety Code applies to the Transportation Code, then Lopez must be deemed unqualified. If that definition does not apply, then this Court must determine what the term “emergency medical services personnel” does mean. See Tex. Transp. Code § 724.017. I con-*90elude that the definition of EMT-I plainly does not apply to the Transportation Code because it expressly applies only to that term as used “in this chapter” of the Health and Safety Code, and nothing in Section 724.017 of the Transportation Code incorporates that definition. See Tex. Health & Safety Code § 773.003(10)(C); Tex. Transp. Code § 724.017.

¶17Furthermore, it does not appear that the Legislature would have intended that the EMT-I definition apply to Lopez’s employment with the hospital because the EMT-I license applies to emergency pre-hospital care, and she was not employed or functioning in that capacity when she drew appellant’s blood during the course of her employment at the hospital. The Texas Health and Safety Code sets forth the qualifications for an EMT-I as follows:

An individual qualifies as an emergency medical technician-intermediate if the individual is certified by the department as minimally proficient to provide emergency prehospital care by initiating under medical supervision certain procedures, including intravenous therapy and endotracheal or esophageal intubation.

¶18Tex. Health & Safety Code § 773.048. The EMT-I license, therefore, indicates that Lopez had met the minimal qualifications to be proficient in “emergency prehospital care.” Id. Her employment inside the hospital, however, was not as “emergency pre-hospital care.” She was in the hospital’s emergency room and not “prehospital.” Her license, therefore, qualifies her to perform certain procedures that are performed during “emergency prehospital care,” but it does not speak to whether, when she drew appellant’s blood, she was acting in the capacity of “emergency medical services personnel” under the Transportation Code. See Tex. Transp. Code § 724.017. If we were to conclude that her license as an EMT-I forever made her “emergency medical services personnel” as that term is used under the Transportation Code, it would permanently exclude her from performing those services, despite her qualifications and regardless of whether she was in an emergency setting, like an ambulance, or a non-emergency setting, like a doctor’s office. Her license, therefore, provides a basis only to conclude that Lopez has met some minimum qualifications and not that she was acting as “emergency medical services personnel” when she drew appellant’s blood. I conclude that the type of license held by the person drawing a defendant’s blood does not resolve the question whether the person was “emergency medical services personnel.”

¶19II. Black-and-White Rule for Blood Draws Is Preferable

¶20I join the majority opinion to the extent that it holds that Lopez “did not function as emergency services personnel” because what she “actually did at the hospital” was “almost exclusively drawing blood,” and, from the perspective of the hospital, she was not treated as “emergency medical services personnel.” But I would go even further and expressly hold that, in examining the functions of the phlebotomist, (1) evidence of blood draws taken in a pre-hospital, non-office settings will not, in general, be permitted because individuals in those settings typically are firefighters or ambulance workers who are “emergency medical services personnel,” and (2) blood draws in hospital-office settings, like those typically conducted by Lopez unless she was called to another location, are generally favored because they occur outside of the emergency room in rooms specially designated for the specific purpose of drawing blood by the phlebotomist of the hospital. I would also caution police *91officers and trial courts that it is unclear whether someone who is employed by the hospital in one capacity, like Lopez who is the phlebotomist assigned to draw blood, may become “emergency medical services personnel” if she is providing emergency services. Here, according to the trial court’s findings of fact and conclusions of law, Lopez had “duties in the LBJ Hospital emergency room,” as well as duties outside of the emergency room. It is not difficult to envision a time when she would be functioning as part of the hospital’s “emergency medical services personnel” who are providing emergency care to patients. In my view, the majority opinion leaves unanswered the question of whether, in examining the functions of an employee, a court must also consider what the employee was actually doing when the officer asked for the blood draw. Here, nothing in the record suggests that Lopez was providing emergency services or even that the blood draw occurred in the emergency room. In this case, she was clearly functioning in a non-emergency situation, and the record suggests that the blood draw occurred outside of the hospital’s emergency room. Because of the potential difficulty this Court may face in attempting to characterize the function of a phlebotomist who is drawing blood in an emergency room, the better practice would be for blood draws to occur in an office within the hospital rather than in the emergency room.

¶21With these comments, I join the majority opinion.

¶22filed a dissenting opinion in which WOMACK, J., joined.

¶23Rachel Lopez was not a physician, chemist, registered professional nurse, or licensed vocational nurse. If she was authorized to draw the appellant’s blood under the statute, it could only be by virtue of her status as a “qualified technician.”1 The statute does not define this term, but it does expressly provide that it “does not include emergency medical services personnel.” 2 Lopez received her training in blood extraction in her capacity as an Emergency Medical Technician-Intermediate (EMT-I).3 Insofar as the record reveals, she has no training to draw blood in any other capacity.4 Thus, while Lopez may be perfectly competent to do so, I agree with the court of appeals that the statute plainly excludes her from drawing *92blood for purposes of Chapter 724 of the Transportation Code.5

¶24Even so, the Court holds today that the court of appeals erred to rely on this plain language from the statute because Lopez’s experience in drawing blood, and the hospital setting in which she had done so for her six years of employment there, rendered her “a de facto phlebotomist” — and phlebotomists have been held to satisfy the criteria for a “qualified technician” under the statute.6 But there was no evidence that Lopez had been trained or certified specifically as a phlebotomist.7 Suppose that, as part of her six years’ employment at the hospital, Lopez had been serving as a de facto nurse, chemist, or even physician. I do not think it likely the Court would hold that she was authorized to draw blood for Chapter 724 purposes in any of those capacities. It is not clear to me why a de facto phlebotomist should count as a “qualified technician” — especially one who received her training in the extraction of blood only as an EMT — I, given that emergency medical services personnel are expressly excepted from the category of “qualified technician.”

¶25I do not mean to suggest that, had the evidence shown that Lopez was both an EMT-I and a certified phlebotomist, the appellant’s motion to suppress should still have been granted. Not at all. That the term “qualified technician” may not be construed to “include emergency medical services personnel” does not necessarily mean that someone who is trained as both an EMT-I and a certified phlebotomist may not draw blood under Chapter 724. At best, Section 724.017(c) is ambiguous with respect to this particular question, and I very much doubt that the Legislature would wish us to construe it to rule out a certified phlebotomist who also just happened to be an EMT-I. But the State did not establish that Lopez was actually trained as a phlebotomist, per se, and I am no more inclined to think that the Legisla*93ture intended to authorize Chapter 724 blood draws from de facto phlebotomists than from de facto doctors, chemists, or nurses.

¶26I suspect that the Court is influenced in its consideration of this case by what it regards as the evident purpose behind Section 724.017(c). The Legislature has expressly provided that “[t]he blood specimen must be taken in a sanitary place.”8 Obviously, the Legislature did not prefer for Chapter 724 blood draws to be conducted amidst the chaos and questionable cleanliness of a roadside accident scene, in the back of a barreling ambulance, or, as in State v. Laird,9 on the filthy floor of a fire station — conditions under which emergency medical service personnel are sometimes constrained by exigency to operate. But, the Court seems to reason, because of Lopez’s apparent competence and the fact that all of her blood draws take place in the relatively tranquil and antiseptic environment of a hospital, she may be found to fit the definition of “qualified technician,” notwithstanding Section 724.017(c)’s express exclusion of emergency medical services personnel from that definition. Like the court of appeals, I reject this reasoning.10 Assuming that assuring safety and sanitation was indeed the impetus for the Legislature’s express exclusion of emergency medical services personnel from the definition of “qualified technician,” it was certainly within the legislative prerogative to take a categorical view of the matter and paint with a brush that was broader than strictly necessary to achieve its objective. That is what Section 724.017(c) plainly does; it categorically prohibits EMT-Is from drawing blood, though many of them are competent to do so and can often get it done under conditions that are perfectly safe and sanitary. The Court may prefer a lighter touch, but that is not for us to say when the language of a statute is as plain — and plainly categorical — as this one.11

¶27Under Section 724.017(c), emergency medical technicians qua emergency medical technicians may not extract blood for purposes of Chapter 724 of the Transportation Code. Because that was the only capacity in which Lopez was trained to perform blood draws, she is plainly excluded from serving in that function. I would therefore affirm the judgment of the court of appeals. Because the Court does not, I respectfully dissent.