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Taos v. Wisdom

Court of Appeals of New Mexico

June 14, 2017

TOWN OF TAOS, Plaintiff-Appellee,
v.
EDWIN WISDOM, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY Sarah C. Backus, District Judge.

          D. Eric Hannum Albuquerque, NM for Appellee.

          Ben A. Ortega Albuquerque, NM for Appellant.

          OPINION

          JULIE J. VARGAS, Judge.

         {1} Defendant, Edwin Wisdom, was convicted in district court of driving under the influence, contrary to Taos, N.M., Uniform Traffic Ordinance, art. VI § 12-6-12.1(B)(1) (2010). On appeal, he challenges the admissibility of his breath alcohol test results (BAT), the admission of an officer's testimony regarding the administration of and Defendant's performance on standardized field sobriety tests, and the sufficiency of the evidence to support a conviction. We affirm the district court.

         I. BACKGROUND

         {2} Officer Luke Martinez was summoned to the scene of a vehicle accident on the evening of February 13, 2015. When he arrived at the scene, Defendant, who was involved in the accident, provided his identification to Officer Martinez. Officer Martinez continued to check everyone involved for injuries and conduct a crash investigation. When he returned to Defendant for his statement a few minutes later, he noticed a strong odor of alcohol on Defendant's breath. Defendant admitted to having "a few beers." Officer Martinez had Defendant perform three standardized field sobriety tests-the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg-stand test. Officer Martinez then took Defendant into custody.

         {3} Defendant submitted to a breath alcohol test. The first two times Officer Martinez ran the Intoxilyzer 8000 breath test machine (the machine), the machine indicated that the calibration was "out of tolerance." After a key operator inspected the machine, Officer Martinez again ran the test on Defendant. This time, the test rendered two readings of 0.12 each.

         {4} Defendant was found guilty in municipal court of driving under the influence, contrary to Taos, N.M., Uniform Traffic Ordinance § 12-6-12.1(B)(1), making it illegal for a person to drive with an "alcohol concentration of eight one-hundredths or more in the person's blood or breath within three hours of driving the vehicle" where "the alcohol concentration results from alcohol consumed before or while driving the vehicle[.]" Defendant appealed to the district court. After a bench trial, the district court found Defendant guilty, and Defendant appealed.

         II. DISCUSSION

         {5} Defendant makes three assertions of error. First, he contends that evidence of Defendant's blood alcohol content (BAC) was both inadmissible and of no evidentiary value because Plaintiff, Town of Taos (the Town), failed to run radio frequency interference tests and because the evidence presented at trial suggests the solution used to calibrate the machine was used at an incorrect temperature. Second, Defendant argues that the district court improperly considered the arresting officer's testimony regarding Defendant's performance on field sobriety tests as expert testimony. Finally, Defendant claims that there is insufficient evidence to support his conviction, alleging an insufficient nexus between driving and impairment from alcohol consumption.

         A. Admission of BAC Results

         {6} "We review a [district] court's admission of evidence for an abuse of discretion." State v. Montoya, 2016-NMCA-079, ¶ 10, 382 P.3d 948. An abuse of discretion is that which is "erroneous, arbitrary, or unwarranted." Id. (alteration, internal quotation marks, and citation omitted). "The [district] court abuses its discretion when it admits evidence for which the necessary foundation has not been laid." State v. Onsurez, 2002-NMCA-082, ¶ 8, 132 N.M. 485, 51 P.3d 528. To the extent that Defendant's arguments require interpretation of an administrative regulation, we apply a de novo review, using the same rules we use to interpret statutes. State v. Hobbs, 2016-NMCA-022, ¶ 9, 366 P.3d 304, cert. denied, 2016-NMCERT-002, 370 P.3d 1212. "The principal command of statutory construction is that the court should determine and effectuate the intent of the Legislature, using the plain language of the statute as the primary indicator of legislative intent." Id. (alteration, internal quotation marks, and citation omitted).

         {7} The New Mexico Implied Consent Act authorizes a law enforcement officer to administer a blood and/or breath test where the officer has "reasonable grounds to believe" a person is driving a motor vehicle in this state while under the influence of alcohol. NMSA 1978, § 66-8-107(B) (1993). All laboratories analyzing breath and blood samples pursuant to the Implied Consent Act must be certified by the Scientific Laboratory Division of the Department of Health (SLD). NMSA 1978, § 24-1-22(C) (2003).

         {8} The Legislature has delegated authority to SLD to "promulgate and approve satisfactory techniques or methods to test persons believed to be operating a motor vehicle or motorboat under the influence of drugs or alcohol[.]" Section 24-1-22(A); see § 66-8-107 (requiring persons operating a motor vehicle in the state to consent to chemical tests approved by SLD, of breath, blood, or both). SLD has the authority to issue certifications for test operators and their instructors and to "establish or approve quality control measures for alcohol breath testing[.]" Section 24-1-22(A). SLD also has the task of establishing "criteria and specifications for equipment, training, quality control, testing methodology, blood-breath relationships and the certification of operators, instructors and collectors of breath samples." Section 24-1-22(B). SLD certification is granted according to the rules and regulations created by SLD, and is subject to termination or revocation for cause. Section 24-1-22(C). Pursuant to this directive, SLD promulgated Regulation 7.33.2 NMAC (3/14/2001, as amended through 4/30/2010) to regulate blood and breath testing under the Implied Consent Act. See 7.33.2.3 NMAC (setting forth statutory authority for regulations).

         {9} In 7.33.2.10 NMAC, SLD established criteria governing the initial certification, continuing responsibilities, recertification, denial, suspension, and revocation of certifications for the breath alcohol instruments used by law enforcement. Our Supreme Court has held that the party seeking admission of the BAT result need not show compliance with all SLD regulations, only those that are "accuracy-ensuring." State v. Martinez, 2007-NMSC-025, ¶ 11, 141 N.M. 713, 160 P.3d 894 (internal quotation marks and citation omitted). This foundational requirement can be satisfied through testimony that the instrument had a certification sticker issued by SLD on it when the test was run and need only be proven by a preponderance of the evidence. Id. ¶¶ 13-23.

         {10} The Town proffered the machine's certification sticker, which was issued October 1, 2014, and expired on September 30, 2015, as evidence to prove the machine's certification. This satisfied the Town's burden to make a threshold showing that the machine was certified and that the SLD certification was current at the time the test was taken. See id. ¶¶ 11-12.

         1. Radio Frequency Interference

         {11} Under the section titled "Continuing responsibilities, " SLD provides a list of requirements for maintaining, testing, and locating instruments. 7.33.2.10(B) NMAC. While 7.33.2.10(B)(1) NMAC sets out an agency's obligation to maintain electronic records, analyze proficiency samples, check calibration, and have the machine inspected, 7.33.2.10(B)(2) NMAC dictates the appropriate environment for the operation of the machine. Under the portion of the regulation titled "Instrument location" agencies are required to furnish an "adequate operational environment" for instruments placed in a fixed location, 7.33.2.10(B)(2)(a) NMAC, including "adequate ventilation to minimize volatile organic compounds[, ]" 7.33.2.10(B)(2)(b)(i) NMAC, "restrict[ed] access to the instrument [limited] to only authorized personnel[, ]" 7.33.2.10(B)(2)(b)(ii) NMAC, and evaluation "for radio frequency interference" (RFI). 7.33.2.10(B)(2)(b)(iii) NMAC.

         {12} Defendant argues that because no RFI report for the 2013 test could be located, there is no evidence that the RFI test was completed, and therefore no evidence of compliance with the regulation. At trial, the Town offered evidence that the machine was tested for RFI in October 2006 and received approval for its fixed location from SLD in November 2006. According to the logbook maintained by the Taos Police Department, the machine was moved in June 2013 when the Department moved to its new location. The logbook shows that an ...


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