dissenting:
Although I have no quarrel with the authority cited by the majority, I disagree with the reasoning. Accordingly, I must respectfully dissent.
I see no reason not to adopt NAC 652.440 for use as a *456guideline in interpreting NRS 484.393(1)(a).1 A laboratory assistant simply does not rise to the level of a technician. Even were I to agree with the majority that the purpose behind NRS 484.393(1)(a) is to insure that only competent, medically trained individuals withdraw blood samples, that purpose is not furthered by the majority’s interpretation.2 Rather, the use of NAC 652.440 in interpreting NRS 484.393(1)(a) would insure that only those persons possessing certain qualifications necessary to receive a state license could withdraw blood samples. Under the majority view, anyone “versed or skilled in the technical details of a subject or art” employed by a medical laboratory could withdraw a blood sample. Thus, an X-ray or computer technician employed at a medical laboratory would fall within the majority’s interpretation of those, persons qualified to withdraw blood samples pursuant to NRS 484.393(1)(a). Therefore, it is obvious that the majority opinion will not insure that only competent persons withdraw blood samples.
The majority opinion reasons that because NAC 652.440 was not enacted until some five years after NRS 484.393(1)(a), the legislature could not have intended NAC 652.440 to act as a guideline. However, I note that NRS 484.393(l)(a) was amended both in 1981 and 1983 — after NAC 652.440 was promulgated. Yet, no attempt was made by the legislature to distinguish “technician employed by a medical laboratory,” NRS 484.393(1)(a), *457from “medical technician,” NAC 652.440. If the legislature intended these two similarly defined categories to be different, it is not absurd to assume that the legislature would have made any differences clear. Thus, there is no reason to reject NAC 652.440 as a guide to interpreting NRS 484.393(1)(a).
Additionally, the net effect of the majority opinion is to further complicate already burgeoning drunken driving trials. As a result of the amorphous definition invented today, each time that a blood sample withdrawn by a technician is introduced into evidence, a mini-trial on that person’s qualifications must be conducted. The state must prove that the technician was qualified to draw blood; the defense would then have the opportunity to rebut that evidence. Whereas, if the technician was licensed by the state to withdraw blood samples, it would be presumed that the individual possesses the minimum qualifications contained in NAC 652.440. NRS 47.250(9). The need for the state to prove those qualifications would be obviated.
Finally, the most compelling reason for my dissent in this case is the fact that, in spite of well established rules to the contrary, the majority has reversed a factual finding of the district court. In criminal matters, it is clear that only questions of law are to be debated on appeal; questions of fact simply are not before us. NRS 177.025. Because the district court requested additional evidence on the qualifications of the laboratory assistant before finding that she was not qualified to withdraw blood samples pursuant to NRS 484.393(1)(a), I infer that the district court treated this question as a factual one.3 Hence because there was conflicting evidence as to the laboratory assistant’s qualifications, the factual finding that she was not qualified should be upheld on appeal. Cf. Udevco, Inc. v. Wagner, 100 Nev. 185, 678 P.2d 679 (1984) (this court will not disturb factual findings based upon substantial evidence). Thus, for the above stated reasons, I must dissent.
NAC 652.440 provides:
652.440 Medical technician: Duties; qualifications.
1. A medical technician shall:
(a) Serve to assist supervisory personnel in the preliminary preparation of specimens and similar items;
(b) Perform only those laboratory manipulations which require limited technical skill and responsibility as assistant to supervisory personnel; and
(c) Perform tests only under the supervision of higher level personnel.
2. A medical technician must be a high school graduate who, subsequent to graduation, has:
(a) Completed at least 1 year in a formal training program for technicians approved by the board;
(b) Successfully completed an official 52-week training program in an armed services school of medical technology and has, at the journeyman’s level, held the occupational specialty in the military as an enlisted person of medical laboratory specialist or laboratory technician; or
(c) Served 2 years as a technician trainee, rotated through the various disciplines, in a clinical laboratory with a director at the doctorate level who is licensed by this state.
An equally plausible theory is that NRS 484.393(1)(a) was designed to insure the production and preservation of reliable blood sample information for use in later civil or criminal proceedings. If this were true, the use of licensed technicians would further that purpose.
I also note that when asked by Judge Berkson to submit additional evidence, the district attorney’s office apparently ignored this seemingly reasonable request. Yet, as a result of the majority opinion, the district attorney now gets another bite at the apple, so to speak. The majority decision, in effect, allows the state a second opportunity to prove a fact that it did not prove at the suppression hearing.