1998 -NMCA- 77, Bransford v. State Taxation and Revenue Dept., Motor Vehicle Div.

• Decision Date: 30 April 1998
• Docket Number: 18385,No. 18101,18101
• Citation: 960 P.2d 827,1998 NMCA 77,125 N.M. 285
• Court: Court of Appeals of New Mexico
• Parties: , 1998 -NMCA- 77 Deborah BRANSFORD, Petitioner-Appellant, v. STATE of New Mexico TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Respondent-Appellee. and Joe M. JARAMILLO, Petitioner-Appellee, v. STATE of New Mexico TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Respondent-Appellant.

Page 827

960 P.2d 827

125 N.M. 285, 1998 -NMCA- 77

Deborah BRANSFORD, Petitioner-Appellant, v. STATE of New Mexico TAXATION AND REVENUE DEPARTMENT, MOTOR

VEHICLE DIVISION, Respondent-Appellee.

and

Joe M. JARAMILLO, Petitioner-Appellee, v. STATE of New Mexico TAXATION AND REVENUE DEPARTMENT, MOTOR

VEHICLE DIVISION, Respondent-Appellant.

No. 18101, 18385.

Court of Appeals of New Mexico.

April 30, 1998.

Tom Udall, Attorney General, Judith Mellow, Special Assistant Attorney General, Santa Fe, for Respondent-Appellee and Respondent-Appellant State of New Mexico.

Gary C. Mitchell, Gary C. Mitchell, P.C., Ruidoso, for Petitioner-Appellant Deborah Bransford.

Gerald E. Baca, McClaugherty, Silver, Downes, Baca & Ellington, P.C., Las Vegas, for Petitioner-Appellee Joe M. Jaramillo.

OPINION

BOSSON, Judge.

¶1 These two cases have been consolidated at the request of the Motor Vehicle Division (MVD) because they both address foundational requirements for breath and blood alcohol tests in drivers' license revocation proceedings conducted pursuant to the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -110 (1978, as amended through 1993). The issue common to both cases is whether the State, in offering these test results into evidence in license revocation proceedings, may lay the necessary foundation for those test results by a means other than live testimony. We hold that the State may do so, and we affirm the district court in both instances.

¶2 We address first Jaramillo v. State of New Mexico, Taxation & Revenue Department which concerns the foundation for the results of breathalyser tests when an issue is raised regarding the reliability or validity of the test results by a challenge to the calibration of the testing instrument. We next address Bransford v. State of New Mexico, Taxation & Revenue Department which concerns the foundation for admission of blood test results in license revocation proceedings.

JARAMILLO

¶3 On August 6, 1995, Jaramillo was stopped for failure to dim his headlights. The officer smelled alcohol, and Jaramillo admitted he had consumed some beer. He had slurred speech and blood-shot eyes; he was not able to understand the officer's instructions; and he was not able successfully to complete a field sobriety test. The officer believed that Jaramillo was driving while intoxicated and arrested him. Jaramillo subsequently consented to a breathalyser test, see § 66-8-107, which produced results of .21, .20 and .22. MVD served Jaramillo with a notice of revocation under the Implied Consent Act. See NMSA 1978, § 66-8-111.1 (1993) (requiring written notice of revocation and right to a hearing).

¶4 At the October 3, 1996 license revocation hearing, the officer testified that he had administered the breath test to Jaramillo. Although the officer was certified to administer such a test, he was not the key operator, nor was he the person who calibrated the breathalyser machine. Jaramillo objected to the lack of any foundation showing that the breathalyser test result was accurate and reliable or that the machine had been properly calibrated.

¶5 The officer was the sole live witness. He testified that he obtained the breath test results from a log book located in the office within the police department where the breathalyser machine was kept. The log book entries were admitted into evidence. The officer recognized his sergeant's signature on the log book, and he identified his sergeant as the person who performed the calibration functions on the breathalyser machine, stating "that's what tells us they have been checked by our supervisor." The log book entries show that Jaramillo's breathalyser test was performed on August 6, 1995 with the indicated results. The log book further indicates that a "self-test" was performed on August 1, 1995, within seven days of Jaramillo's test. The log book does not explain what a "self-test" is or how it demonstrates proper calibration of the machine. The officer did not offer any explanation of the "self-test" or even any testimony that the machine appeared to be operating correctly on the day of Jaramillo's test.

¶6 Without any direct evidence of calibration, the hearing officer nonetheless took "administrative notice" that the breathalyser machine had been checked for calibration because that was provided for in the regulations of the scientific laboratory division. The hearing officer admitted the test results into evidence and sustained Jaramillo's license revocation. On appeal, the district court reversed, concluding that when the calibration of a breathalyser machine is at issue, a key operator must testify to establish a foundation that the machine was in proper working order at the time of the test.

DISCUSSION

¶7 We have previously held that upon proper objection, the State has the burden of making a threshold showing that the breathalyser machine provides valid results. This is part of the foundation for admission of breath test results into evidence. See Plummer v. Devore, 114 N.M. 243, 245, 836 P.2d 1264, 1266 (Ct.App.1992); see also Rule 11-104(B) NMRA 1998 (requiring "evidence sufficient to support a finding of the fulfillment of the condition"). Thus, when an issue is raised regarding the validity or reliability of a breathalyser test result, some threshold showing is required that the machine was properly calibrated or that it was otherwise functioning properly at the time of the test. Plummer, 114 N.M. at 246, 836 P.2d at 1267.

¶8 Although the log book in the present case indicates that a "self-test" was performed within seven days of Jaramillo's breathalyser test with a test result of ".00," the State offered no explanation of what that means and how it was derived. Raw data of this kind may not be self-explanatory, and it was not unreasonable that the district court did not find it so. It is unclear how the data indicates proper calibration or whether the breathalyser machine was working properly. Cf. State v. Ruiz, 120 N.M. 534, 540, 903 P.2d 845, 851 (Ct.App.1995) (officer testified that he was very familiar with Intoxilyzer 5000, and that it appeared to be working properly, and the state introduced an exhibit demonstrating machine had been calibrated within seven days of the defendant's test); State v. Henderson, 100 N.M. 260, 262, 669 P.2d 736, 738 (Ct.App.1983) (admission of "automated teller" photos under "silent-witness" theory upheld where foundation evidence included testimony concerning film developing procedure).

¶9 Jaramillo specifically challenged the calibration of this machine and thereby created an issue of fact. Because that issue of fact was not answered by either the log book or by the officer's limited testimony, it was inappropriate for the hearing officer to take "administrative notice" of the machine's proper calibration when that was the very fact placed at issue. Although TRD Rule MVC 8-112:7(B) sets forth that the "hearing officer may take notice of judicially cognizable facts and of general technical or scientific facts and of other facts within the specialized knowledge of the Division," the machine's calibration is hardly such a "fact." Upon demand, it requires some level of proof. See Plummer, 114 N.M. at 245, 836 P.2d at 1266.

¶10 How must the State make this threshold showing in a license revocation hearing? We recognize that these kinds of proceedings are intended to be expedited, and therefore we do not agree with the district court that calibration can only be established by live testimony. In license revocation proceedings, when the reliability or validity of the breath test result is at issue, evidence of proper calibration may be set forth by affidavit or certification by an appropriate, qualified witness, indicating that the breathalyser machine was properly calibrated within seven days of the test at issue or that the breathalyser machine was in proper working order on the day in question. This procedure appears to be consistent with what is done in many other jurisdictions. See, e.g., State v. Smith, 66 Or.App. 703, 675 P.2d 510 (1984) (documents certifying that the breathalyser equipment was in proper operating order admitted as a public record); Commonwealth v. Sloan, 414 Pa.Super. 400, 607 A.2d 285, 293 (1992) (certificate of calibration, when offered into evidence with a certificate of accuracy, should be presumptive evidence of the completion of the proper testing for accuracy of the breath testing equipment); Kehl v. Schwendiman, 735 P.2d 413, 417 (Utah Ct.App.1987) (court acknowledges financial burden to call live witnesses in driving under the influence cases, thereby acknowledging that an affidavit may be used to establish reliability and accuracy of breathalyser evidence). Cf. State v. Christian, 119 N.M. 776, 782-83, 895 P.2d 676, 682-83 (Ct.App.1995) (in criminal cases, a confrontation clause satisfied when witness knowledgeable about the testing procedure and manner in which report was complied is available for cross-examination).

¶11 We also hold that the foundation for test results may be satisfied by adherence to the Rules of Criminal Procedure for the Metropolitan Courts, Rule 7-607(A)(2) NMRA 1998, which provides:

A. Admissibility. In any prosecution of an offense within the trial jurisdiction of the metropolitan court, in which prosecution a convicted defendant is entitled to an appeal de novo, the following evidence is not to be excluded under the hearsay rule, even though the declarant may be available as a witness:

...

(2) a print-out produced by a breath-testing device which performs an analysis of the defendant's breath to determine blood alcohol concentration if:

(a) the law enforcement officer who operated the device is certified to operate the device by the scientific laboratory of the health and environment department [department of health]; and

(b) upon request, the calibration testing records for a reasonable period of time surrounding the defendant's test are...