1998 -NMCA- 160, State v. Gardner, 18,949

• Docket Nº: No. 18,949
• Citation: 1998 NMCA 160, 126 N.M. 125, 967 P.2d 465
• Case Date: September 11, 1998
• Court: Court of Appeals of New Mexico

Page 465

967 P.2d 465 126 N.M. 125, 1998 -NMCA- 160 STATE of New Mexico, Plaintiff-Appellee,
v.
Brenda GARDNER, Defendant-Appellant. No. 18,949. Court of Appeals of New Mexico. Sept. 11, 1998.
Certiorari Denied, No. 25, 398,
Oct. 26, 1998.

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Tom Udall, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis H. Subin, Chief Public Defender, Carolyn R. Glick, Assistant Appellate Defender, Santa Fe, for Appellant.

OPINION

PICKARD, J.

¶1 In 1993, the Implied Consent Act was amended so that motor vehicle operators are deemed to consent to blood or breath alcohol tests that are "approved by the scientific laboratory division of the department of health." NMSA 1978, § 66-8-107(A) (1993). Department of Health Regulation 12.1.1 requires breath samples to be collected only after "the subject has been under continuous observation for at least 20 minutes prior to collection of the first breath sample." 7 NMAC 33.2.12.12.2.1 (Oct. 31, 1996). The question we address in this case is whether a breath alcohol test taken after the Defendant was continuously observed for only fifteen minutes is admissible in her criminal case for driving while intoxicated (DWI). We hold that it is not and reverse.

¶2 Defendant raises two other issues on appeal in addition to the issue concerning the admission of the test results. We do not address the prosecutor-misconduct issue because it is not certain to arise on retrial. We summarily answer the issue concerning alleged error in the bind-over order for felony DWI when there was no proof of prior DWI convictions presented to the magistrate: "a probable cause showing regarding the existence of three prior [DWI] convictions was not required in order to support jurisdiction in the district court." State v. Anaya, 1997-NMSC-010, p 25, 123 N.M. 14, 933 P.2d 223. Moreover, because "proof of three such convictions does not constitute an element of felony DWI," id., we find nothing in Rule 6-202(C) NMRA 1998 that would prohibit the magistrate from entering the bind-over order.

FACTS

¶3 Defendant's vehicle was stopped for erratic driving. Upon observing classic signs of intoxication, the officer placed Defendant under arrest and transported her to the Sheriff's Office for a breathalyzer test. The officer observed Defendant while she was in his patrol car and again after they arrived at the Sheriff's office. At the station, however, Defendant left the officer's observation when she was permitted to use the restroom. The officer testified that this happened about fifteen to twenty minutes before the test. When Defendant returned from the restroom, the officer asked her if she was okay, and Defendant did not indicate that anything was wrong. The officer claimed in his testimony

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that Defendant was within his observation the entire twenty minutes before the test despite Defendant leaving to go to the bathroom. Nonetheless, the officer admitted that he did not know whether Defendant burped, belched, or vomited while she was in the bathroom. The officer explained that the continuous observation requirement is important to ensure that DWI suspects do not burp, belch, or vomit prior to the administration of the test, as that can lead to an erroneous test result. Defendant's test results showed a breath alcohol concentration of .19, .18, and .18.

¶4 At the time the test results were offered into evidence at trial, defense counsel objected that they were inadmissible. Specifically, defense counsel argued that the continuous observation period required by statute and regulation was not met when Defendant was allowed to use the restroom unaccompanied by the officer within twenty minutes prior to the administration of the test. The trial court overruled the objection, the results were admitted into evidence, and Defendant was convicted. On appeal, Defendant contends that the test results were improperly admitted into evidence because the officer failed to strictly comply with the twenty-minute continuous observation period by permitting Defendant to be out of his presence for the time it took for her to use the restroom, which may have been as close as fifteen minutes before the test.

DISCUSSION

¶5 We hold that the test results were improperly admitted into evidence due to the violation, by as much as five minutes, of the twenty-minute continuous observation period. We review rulings upon the admission or exclusion of evidence under an abuse of discretion standard, see State v. Hoeffel, 112 N.M. 358, 361, 815 P.2d 654, 657 (Ct.App.1991), but when there is no evidence that necessary foundational requirements are met, an abuse of discretion occurs. Our decision is based first and foremost on the statutory structure of the DWI statutes which, since the 1993 amendments, expressly provide that blood or breath alcohol test results may be introduced into evidence if they are performed in accordance with state regulations; these regulations require a twenty-minute observation period prior to collecting a breath sample. Our decision is also based, in part, on (1) distinguishing a prior case decided before the 1993 amendments to the DWI laws; (2) distinguishing arguably similar cases which, in fact, involved different circumstances; and (3) distinguishing a recent case in which we applied the doctrine of substantial compliance. We review each of these matters in turn. We additionally hold that the error was not harmless.

I. Statutory Structure

¶6 Department of Health Regulation 12.1.1 states:

Two breath samples shall be collected and/or analyzed by certified Operators or Key Operators only, and shall be end expiratory in composition. Breath shall be collected only after the subject has been under continuous observation for at least 20 minutes prior to collection of the first breath sample. If during this time the subject regurgitates or introduces any foreign substance suspected of containing alcohol into his mouth or nose, another 20 minutes observation period must be initiated. The two breath samples shall be taken not more than 15 minutes apart. If the difference in the results of the two samples exceeds 0.02 grams per 210 liters (BrAC), a third sample of breath or blood shall be collected and analyzed. If the subject declines or is physically incapable of consent for the second and/or third samples, it shall be permissible to collect and/or analyze fewer samples.

7 NMAC 33.2.12.12.2.1. This regulation was promulgated pursuant to the authority of NMSA 1978, § 24-1-22 (1981), which allows the "scientific laboratory division of the health and environment department [department of health]" to promulgate and approve methods of testing people under the influence of alcohol or drugs and to establish criteria for testing methodology and collection of breath samples.

¶7 If Section 24-1-22 were the only statute touching on the matter at issue in this case, it may be that suppression of the results of Defendant's breath alcohol tests

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taken in violation of the regulation might not be required. However, the Implied Consent Act and the DWI statutes underwent substantial revision in 1993 as part of a comprehensive legislative effort to address this state's DWI problem. See 1993 N.M.Laws, ch. 66 (amending, inter alia, NMSA 1978, §§ 66-8-102, -102.1, -107, & -109 to -112 (1993)). All parts of this statute must be read together and each part must be considered in relation to the others to determine whether substantial compliance with the twenty-minute observation period is sufficient. See Citizens for Incorporation, Inc. v. Board...