                                    1131 Nev., Advance Opinion    87
         IN THE SUPREME COURT OF THE STATE OF NEVADA


VINCENT VALENTI,                                        No. 63987
Appellant,
vs.
THE STATE OF NEVADA
DEPARTMENT OF MOTOR VEHICLES,                                       V 05     15
Respondent.



            Appeal from a district court order denying a petition for
judicial review of a Department of Motor Vehicles' decision to revoke a
driver's license. Eighth Judicial District Court, Clark County; Rob Bare,
Judge.
            Reversed and remanded.


Law Offices of John G. Watkins and John Glenn Watkins, Las Vegas,
for Appellant.

Adam Paul Laxalt, Attorney General, William J. Geddes, Senior Deputy
Attorney General, and Nathan L. Hastings, Deputy Attorney General,
Carson City,
for Respondent.




BEFORE PARRAGUIRRE, DOUGLAS and CHERRY, JJ.

                                  OPINION
By the Court, DOUGLAS, J.:
            In this appeal, we consider whether a chemist, as defined
under NRS 50.320, must be qualified as an expert in a Nevada court of
record prior to admission of his or her affidavit attesting to an individual's



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                blood-alcohol concentration in a driver's license revocation hearing. In
                doing so, we expand our decision in Cramer v. State, DMV, 126 Nev. 388,
                240 P.3d 8 (2010), where we specifically declined to address this issue. We
                conclude that the expert qualification requirement in NRS 50.320(1)
                applies to all proposed expert witnesses, including chemists.
                                             BACKGROUND
                            On the morning of July 1, 2012, Nevada Highway Patrol
                Trooper Scott Reinmuth witnessed motorist Vincent Valenti make two
                lane changes without signaling. As a result, Trooper Reinmuth initiated a
                traffic stop. Upon making contact with Valenti, Trooper Reinmuth
                observed signs of intoxication and asked Valenti to complete several field
                sobriety tests. Valenti's test performances revealed impairment, so
                Trooper Reinmuth administered a preliminary breath test. The breath
                test indicated Valenti's blood-alcohol concentration was 0.154. Trooper
                Reinmuth then arrested Valenti for driving while under the influence of
                alcohol. Trooper Reinmuth also instructed Valenti that he would be
                required to submit to either a blood test or another breath test when they
                arrived at Clark County Detention Center. Upon arrival, Valenti
                submitted to a blood test.' Forensic scientist Christine Maloney conducted
                a blood analysis, which revealed a blood-alcohol concentration of 0.159.
                            Thereafter, the Department of Motor Vehicles notified Valenti
                in writing that his driver's license was being revoked. Valenti requested
                an administrative hearing to contest the revocation. At the hearing, the



                       'Valenti contests the constitutionality of the warrantless blood
                testing. We need not address this issue because we reverse the district
                court's decision based on the improperly admitted expert affidavit.


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                administrative law judge admitted Maloney's affidavit into evidence over
                Valenti's objection. In the affidavit, Maloney attested that she was a
                chemist, as defined by NRS 50.320(5), and that Valenti's blood-alcohol
                concentration was 0.159 at the time of testing. Maloney's affidavit did not,
                however, state whether she had been previously qualified as an expert in a
                Nevada court of record.
                             After the hearing, the administrative law judge concluded
                Valenti's blood-alcohol concentration was 0.08 or more at the time of the
                traffic stop. 2 The administrative law judge explained, pursuant to
                Cramer, 126 Nev. 388, 240 P.3d 8, that there are two classes of persons
                under NRS 50.320, "chemists" and "any other person," and a chemist is
                not required to qualify as an expert before his or her affidavit attesting to
                blood-alcohol concentration is admitted into evidence. Consequently,
                Maloney's affidavit, declaring that she was a chemist, was admissible.
                Based on Maloney's affidavit and testimony given by Trooper Reinmuth,
                the administrative law judge ruled that the DMV established the
                necessary elements of proof and revoked Valenti's driver's license.
                             Valenti then petitioned the district court for judicial review,
                arguing that the administrative law judge's decision was not supported by
                substantial evidence because Maloney's affidavit, which failed to state
                whether she had been court-qualified as an expert, was inadmissible. The
                district court denied Valenti's petition, concluding that Maloney's affidavit




                      2 It
                         is unlawful for any person who has a concentration of alcohol of
                0.08 or more in his or her blood to drive or be in actual physical control of
                a vehicle. NRS 484C.110(1).


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                indicated she was a chemist and was therefore admissible. Valenti
                appeals the district court's decision.
                                                DISCUSSION
                            "On appeal from orders deciding petitions for judicial review,
                this court reviews the administrative decision in the same manner as the
                district court." Nassiri v. Chiropractic Physicians' Bd., 130 Nev., Adv. Op.
                27, 327 P.3d 487, 489 (2014); see Kay v. Nunez, 122 Nev. 1100, 1105, 146
                P.3d 801, 805 (2006) (affording "no deference to the district court's ruling
                in judicial review matters"). We review the administrative decision for an
                abuse of discretion, giving deference to the administrative agency's factual
                findings that are supported by substantial evidence. Taylor v. State, Dep't
                of Health & Human Servs., 129 Nev., Adv. Op. 99, 314 P.3d 949, 951
                (2013). We review questions of statutory interpretation de novo. Id.
                             If the results of a preliminary breath test or evidentiary blood
                test show that a motorist had "a concentration of alcohol of 0.08 or more in
                his or her blood or breath at the time of the test, the license, permit or
                privilege of the person to drive must be revoked." NRS 484C.210(1)
                (2013). 3 Motorists may then contest the revocation at a requested DMV
                administrative hearing. NRS 484C.230(1). The scope of the
                administrative hearing is limited to determining whether the motorist had
                a concentration of alcohol of 0.08 or more in his or her blood or breath at
                the time of the test. NRS 484C.230(2). In reaching that determination,
                the affidavit of "a chemist and any other person who has qualified in a



                      3 Chapter
                              484C of NRS was amended by the 2015 Legislature. Upon
                review of the amendments, we conclude that they do not affect our
                analysis.


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                court of record in this State to testify as an expert witness regarding the
                presence. . . of alcohol" must be admitted. NRS 50.320(1) and (2).
                             On appeal, Valenti contends that NRS 50.320(1)'s expert
                qualification prerequisite applies to both "chemists" and "any other
                person." Hence, Valenti argues that Maloney's affidavit, which declared
                that she was a chemist but failed to address whether she had been court-
                qualified to testify as an alcohol-concentration expert, was inadmissible.
                In opposition, the State contends that NRS 50.320(1)'s expert qualification
                prerequisite does not apply to persons who are defined as chemists
                pursuant to NRS 50.320(5). 4 Thus, according to the State, a chemist's
                affidavit is admissible in an administrative proceeding, so long as his or
                her place of employment and job duties are of the kind defined by NRS
                50.320(5). We disagree.
                The language of NRS 50.320(1) is ambiguous
                             "In interpreting a statute, this court looks to the plain
                language of the statute and, if that language is clear, this court does not


                      4NRS   50.320(5) provides:

                             As used in this section, "chemist" means any
                             person employed in a medical laboratory,
                             pathology laboratory, toxicology laboratory or
                             forensic laboratory whose duties include, without
                             limitation:
                                   (a) The analysis of the breath, blood or urine
                             of a person to determine the presence or
                             quantification of alcohol or a controlled substance,
                             chemical, poison, organic solvent or another
                             prohibited substance; or
                                   (b) Determining the identity or quantity of
                             any controlled substance.

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                go beyond it." Branch Banking & Tr. Co. v. Windhaven & Tollway, LLC,
                131 Nev., Adv. Op. 20, 347 P.3d 1038, 1040 (2015). "But when a statute is
                susceptible to more than one reasonable interpretation, it is ambiguous,
                and this court must resolve that ambiguity by looking to the statute's
                legislative history and construing the statute in a manner that conforms
                to reason and public policy." Zohar v. Zbiegien, 130 Nev., Adv. Op. 74, 334
                P.3d 402, 405 (2014) (internal quotation omitted).
                            In pertinent part, NRS 50.320 provides:
                                  1. The affidavit or declaration of a chemist
                            and any other person who has qualified in a court
                            of record in this State to testify as an expert
                            witness regarding the presence in the breath,
                            blood or urine of a person of alcohol. . . which is
                            submitted to prove:
                                  •••

                                  (b) The concentration of alcohol . . .
                            is admissible in the manner provided in this
                            section.
                                  2. An affidavit or declaration which is
                            submitted to prove any fact set forth in subsection
                            1 must be admitted into evidence when submitted
                            during any administrative proceeding, preliminary
                            hearing or hearing before a grand jury. The court
                            shall not sustain any objection to the admission of
                            such an affidavit or declaration.
                            Both Valenti and the State maintain that the language of NRS
                50.320(1) is plain and that this court need not go beyond it to discern
                legislative intent. We, however, are unable to decipher legislative intent
                according to the plain language. Instead, we conclude that the language of
                NRS 50.320(1) can reasonably be read to offer different meanings.
                            In one possible reading, the affidavits of both chemists and
                other persons are admissible as evidence in an administrative proceeding
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                only if the affiant has been qualified previously as an expert in alcohol
                concentration in a Nevada court of record. In this reading, the
                Legislature's use of the conjunction "and" between "chemist" and "any
                other person" makes the modifier "who has qualified" apply to both
                "chemist" and "any other person." Cf. Galloway v. Truesdell, 83 Nev. 13,
                26, 422 P.2d 237, 246 (1967) ("[T]he expression of one thing is the
                exclusion of another. . . ."). And the deliberate use of the conjunction
                "and" between the clauses means that the clauses are to be taken together.
                See Black's Law Dictionary 86 (6th ed. 1991) (defining "and" as "[a]
                conjunction connecting words or phrases expressing the idea that the
                latter is to be added to or taken along with the first"). Taken together and
                applied to the subsequent modifier—"who has qualified in a court of record
                in this State"—both chemists and other persons must qualify.
                            In an alternative reading, "any other person" is subject to the
                expert qualification requirement, but a "chemist" is not. According to the
                last antecedent rule of statutory construction, the modifier "who has
                qualified" likely relates back only to the antecedent immediately
                preceding—"any other person." See Thompsen v. Hancock, 49 Nev. 336,
                341, 245 P. 941, 942 (1926) ("It is a rule of construction that relative and
                qualifying words and phrases, grammatically and legally, where no
                contrary intention appears, refer solely to the last antecedent."). In such a
                reading, the chemist is not beholden to the modifier and is thus exempt
                from the requirement contained therein, a reading that contradicts the
                first. Because NRS 50.320(1) may be read to render meanings at odds
                with one another, its language is ambiguous.




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                The Legislature has expressed no intent to release chemists from the
                established expert qualification requirement
                             Given the ambiguity of NRS 50.320(1), we look to legislative
                history to discern the Legislature's intent. See Zohar, 130 Nev., Adv. Op.
                74, 334 P.3d at 405. The State suggests that by amending NRS 50.320 to
                add a definition of "chemist," see subsection 5, the 2009 Legislature
                intended that chemists be unbound from the expert qualification
                requirement. The expert qualification requirement at issue was codified
                at NRS 50.315 (1993) prior to its relocation to NRS 50.320. Under NRS
                50.315 (1993), a "person" was required to qualify as an expert before his or
                her affidavit was admissible. Not until 1995 was a "chemist" additionally
                named as an individual whose expert affidavit must be admitted. 5 1995
                Nev. Stat., ch. 708, §§ 1-2, at 2712-13. At that juncture, the Legislature
                espoused no intent to treat chemists differently, 6 nor was any intent to
                treat chemists differently espoused when the 2009 Legislature added a
                definition to the term chemist. 7 See generally, e.g., Hearing on A.B. 250
                Before the Assembly Judiciary Comm. 75th Leg. (Nev., March 16, 2009).



                      5As  we conclude here, the requirement that a chemist first be court-
                qualified has endured since NRS 50.320's inception in 1995.

                      5The focus of the hearings on Senate Bill 157, which added the term
                chemist, concerned Confrontation Clause issues in the affected criminal
                proceedings. The Legislature gave no discussion as to why the term
                chemist was added. See generally, e.g., Hearing on S.B. 157 Before the
                Senate Judiciary Comm., 68th Leg. (Nev., February 13, 1995).

                      7 Through   Assembly Bill 250, the 2009 Legislature also amended
                NRS 50.320 to change the court wherein an expert could meet the
                qualification prerequisite from "the district court of any county" to "a court
                of record in this State." 2009 Nev. Stat., ch. 16, § 1, at 32.


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                The most informative statement as to the Legislature's intent in defining
                chemist came from a lead proponent of Assembly Bill 250, Deputy District
                Attorney L.J. O'Neale. O'Neale testified: "This is just a clarification that,
                for th[o]se people that everybody calls chemists, the law will call them
                chemists as well." 8 Id.       Missing from O'Neal's statement, and indeed,
                more revealing, from the relevant legislative history altogether, is intent
                to do anything other than to define chemist. Therefore, we conclude,
                absent any expression of intent by the 2009 Legislature to, by defining the


                      8 111   context, O'Neale stated:

                                The section of the bill that defines the term
                                "chemist" is becoming significant because, as
                                persons go to greater and greater extremes in the
                                defense of cases, we have seen a couple of
                                instances where defense counsel say, well, your
                                chemist is not really a chemist because his or her
                                job title is not chemist. In fact, none of the people
                                who do this work have a job title of chemist. Metro
                                forensic lab people are forensic scientists. They
                                used to be called criminalists, and this was
                                changed a couple of years ago. The people who do
                                the analysis for Quest Laboratories, which does
                                the Highway Patrol cases, are termed forensic
                                technicians. So their job titles do not say chemist.
                                 Chemist is perhaps on the lowest level as a term of
                                 art because people say, "Do you have your chemist
                                 available? Is your chemist ready to go?" So these
                                people are always referred to as chemists even
                                 though their job titles are not chemist. This is just
                                a clarification that, for these people that everybody
                                calls chemists, the law will call them chemists as
                                well.
                Hearing on A.B. 250 Before the Assembly Judiciary Comm., 75th Leg.
                (Nev., March 16, 2009) (emphasis added).


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preexisting term chemist, revoke the established requirement that
chemists be court-qualified, such an attenuated conclusion is without
justification. See Presson v. Presson, 38 Nev. 203, 208, 147 P. 1081, 1082
(1915) ("Repeals by implication are not favored."); Burns v. Reed, 500 U.S.
478, 497 (1991) (rejecting proposition that Congress intended to revoke the
common-law tradition of legislative immunity by covert inclusion in the
general language of 1871 statute aimed at enforcing the Fourteenth
Amendment).
             Moreover, to ask that this court draw such a conclusion would
lead to unreasonable results. See Presson, 38 Nev. at 210, 147 P. at 1083
("[T]he [L]egislature cannot be presumed to have done an absurd
thing . . . ."); City of Reno v. Bldg. & Constr. Trades Council of N. Nev.,   127
Nev. 114, 121, 251 P.3d 718, 722 (2011) ("[T]his court will not read
statutory language in a manner that produces absurd or unreasonable
results." (internal quotation omitted)). The State asks that this court
presume the Legislature to have intended to surreptitiously change the
law. However, the State has not set forth any reason why the Legislature
would take such a roundabout approach to revoking the requirement that
chemists qualify, as by covertly revealing the revocation as an intention
that must be deduced from the act of defining the word chemist. That is,
this court would have to accept that the Legislature took the former
approach, as an alternative to quite simply and directly stating that
chemists are to be exempt from the expert qualification requirement.
Given that the Legislature is tasked with providing a clear recitation of
the laws that govern this state, presuming such an indirect approach to
lawmaking would be to presume the Legislature to have done something
absurd. We decline to so presume.



                                       10
                            But, the State argues, if we read the statute as Valenti
                suggests, maintaining the expert qualification requirements for chemists
                and other experts alike, the new language defining chemist will be
                rendered nugatory or mere surplusage. Generally, "[n]o part of a statute
                should be rendered nugatory, nor any language turned to mere surplusage
                if such consequences can properly be avoided."      Paramount Ins., Inc. v.
                Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (internal
                quotation omitted). In this case, to the extent the language defining
                chemist is rendered nugatory or mere surplusage due to our construal, we
                conclude such consequences are not properly avoidable.
                The reasoning and public policy set forth in Cramer v. State further direct
                that the court qualification requirement should be maintained for all
                experts, including chemists
                            In Cramer v. State, DMV, we similarly maintained the expert
                qualification requirement for experts, but we declined to extend our
                holdings to chemists. 126 Nev. 388, 393 n.3, 240 P.3d 8, 11 n.3 (2010). We
                specified: "In this opinion, we do not address whether a chemist who
                submits an affidavit pursuant to NRS 50.320 must be qualified as an
                expert, as that issue was not raised in this appeal."     Id. Now properly
                before us, we have taken this opportunity to decide the issue. In so doing,
                we find further support for our conclusions in the reasoning and public
                policy grounds outlined in Cramer, as they dictate our construal of the
                statute. See J.E. Dunn, 127 Nev. at 82, 249 P.3d at 508 (concluding public
                policy favored one interpretation of a statute over another).
                            In arriving at our Cramer holdings, we noted that in
                accordance with NRS 233B.123(4), "a defendant in an administrative
                proceeding is entitled to confront and cross-examine the witnesses against
                him." Cramer, 126 Nev. at 394, 240 P.3d at 12 (citing State, Dep't of Motor
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Vehicles & Pub. Safety v. Evans,      114 Nev. 41, 45, 952 P.2d 958, 961
(1998)). To preserve that statutory right, in light of the affidavit exception
created by NRS 50.320, we ruled that the affidavit's affiant must be once
subject to the adversarial process of court qualification.    See id. (reading
NRS 233B.123(4) and NRS 50.320 together). We reasoned that "[alllowing
an affidavit from a proposed expert, which lacks the reliability and
trustworthiness of an affidavit from one who has been qualified to testify
as an expert, would violate NRS 50.320's plain meaning and lead to
absurd results, including the revocation of driver's licenses based on a lay-
person's affidavit." Id.
            Here, the same concerns for reliability and trustworthiness of
an expert affidavit arise when a person who is statutorily defined as a
chemist is the affiant. The Legislature's act of defining "chemist" is not a
guarantee to the trustworthiness or reliability of a chemist's affidavit.
The adversarial test of cross-examination, to which experts submit at the
time of court qualification, is better suited to defend these standards.   See
id. at 394-95, 240 P.3d at 12-13. In sum, Cramer's holdings were founded
on preserving reliability and trustworthiness in administrative procedure.
Keeping consistent with its principles, we expand its holdings and include
chemists under the umbrella of experts subject to NRS 50.320(1)'s expert
qualification requirement.
             In accord with reason and public policy, Maloney's affidavit,
which indicated that she was a chemist but failed to state whether she had
been qualified in a Nevada court of record, was inadmissible at Valenti's
revocation hearing.    See id. at 390, 240 P.3d at 9 (concluding that an
expert's affidavit is inadmissible when the author has not been qualified




                                       12
                or the affidavit fails to state the court wherein he or she was qualified
                (emphasis added)). In the affidavit's absence, it cannot be said that the
                evidence relied upon by the administrative law judge was sufficiently
                substantial to revoke Valenti's driver's license.
                              Accordingly, we reverse and remand to the district court for
                further proceedings consistent with this opinion.




                                                                                  J.



                We concur:



                Parraguirre


                  C-hsz4t,
                Cherry




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