State v. Anaya, Opinion Number: 2012-NMCA-094

CitationDocket No. 30,675
Case DateJune 07, 2012
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,
JOE ANAYA, Defendant-Appellant.

Opinion Number: 2012-NMCA-094
Docket No. 30,675


Filing Date: June 7, 2012

Certiorari Denied, July 30, 2012, No. 33,699

Steven L. Bell, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM

for Appellant


GARCIA, Judge.

{1} Defendant Joe Anaya was convicted of driving while intoxicated (DWI), contrary to NMSA 1978, Section 66-8-102 (2007) (amended 2010), and other driving related offenses during a bench trial. At trial, the State introduced a copy of his breath alcohol test results from the Intoxilyzer 5000 breathalyzer machine (IR 5000). On appeal to this Court,

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Defendant asserts that the district court erred in denying his motions to suppress the IR 5000 breath test results because: (1) the Confrontation Clause mandates that Defendant have the opportunity to cross-examine a witness regarding the underlying science and the accuracy of the IR 5000, and (2) the breath test was obtained in violation of the Implied Consent Act, NMSA 1978, § 66-8-109(B) (1993). Defendant also argues that any incriminating statements he made while under arrest should have been suppressed because Defendant was not informed of his right to remain silent pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). We affirm.


{2} Officer O'Brien stopped Defendant's car for failure to use a turn signal. Officer O'Brien noticed that Defendant's breath had an odor of alcohol and asked Defendant for his driver's licence, proof of insurance, and registration. Defendant responded that he did not have a driver's licence, and Officer O'Brien learned that Defendant's license had been revoked with an arrest clause. As a result, Officer O'Brien placed Defendant under arrest.

{3} A second officer, Officer Stevenson, arrived on the scene as Officer O'Brien was escorting Defendant to the back of her patrol car. Officer Stevenson observed that Defendant had slurred speech and bloodshot watery eyes, was slow in entering the back seat of Officer O'Brien's patrol car, and had an odor of alcoholic beverages on or about his person. Once Defendant was already inside Officer O'Brien's patrol car, Officer Stevenson asked Defendant if he had been drinking. Defendant replied that he had not eaten anything all day and had consumed three beers in the last two hours. The State concedes that at this point Defendant was under arrest and was not provided with Miranda warnings. Officer Stevenson then began conducting a DWI investigation. He administered field sobriety tests including a horizontal eye gaze nystagmus test, a one leg stand test, and a walk and turn test. Defendant's performance on the field sobriety tests were recorded by Officer Stevenson's belt tape and the DVD that was admitted at trial at the request of Defendant. After conducting the field sobriety tests, Officer Stevenson arrested Defendant for DWI and read him the Implied Consent Act.

Officer Stevenson initially brought Defendant to a hospital to conduct a blood test, but Defendant was ultimately tested by breath using the IR 5000. Defendant claims that he requested a blood test. Officer Stevenson, who does not remember the incident clearly, does not recall Defendant asking for a second test and asserts that he would have given Defendant a second test if Defendant had requested one. The IR 5000 breath test results indicated that Defendant's blood alcohol level was .11 and .12.

{4} Prior to trial, Defendant filed a motion to dismiss the DWI charge claiming that he had been denied his request for a blood test. The district court heard testimony from Officer Stevenson and Defendant and reviewed the audio belt recording of Defendant's field sobriety tests. The district court denied Defendant's motion to dismiss and found that Officer Stevenson did advise Defendant of his right to independent testing under the Implied

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Consent Act, and Defendant did not request a blood test or additional testing. The district court did, however, grant Defendant's later motion to suppress the breath test results that were based on this Court's decision in State v. Willie, 2008-NMCA-030, 143 N.M. 615, 179 P.3d 1223, rev'd by 2009-NMSC-037, 146 N.M. 481, 212 P.3d 369. After the New Mexico Supreme Court reversed Willie, this Court entered an order vacating its prior opinion and remanded the case to the district court for trial.

{5} On remand, defense counsel cited in opening statement the United States Supreme Court decision, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527 (2009), and asserted that the proper calibration of the machine was not a sufficient foundation to introduce the IR 5000 breath test results. Defense counsel argued that Melendez-Diaz now required the opportunity to confront witnesses regarding Defendant's particular test, the operation and calibration of the particular IR 5000 machine used to test Defendant, and the scientific reliability of the IR 5000. Defense counsel also indicated an intent to object to the State's use of Defendant's breath test results on the basis of Melendez-Diaz, if the State could not produce an expert witness to testify regarding "what the test actually does, what it actually tests, how it actually operates[,] and whether or not [it is] scientifically reliable."

{6} In its case-in-chief, the State called Officers O'Brien, Zavala, and Stevenson. Officer O'Brien testified as to the initial traffic stop. Officer Zavala, the key operator for the IR 5000, testified regarding the certification and calibration procedures for the IR 5000 utilized in Defendant's case, and his belief that the IR 5000 was working properly on the day of Defendant's breath test. Officer Zavala also discussed compliance with the Department of Health's Scientific Laboratory Division (SLD) regulations regarding the calibration and certification of breathalyzers and stated that he had no knowledge of the inner workings of the IR 5000.

{7} Officer Stevenson discussed his DWI investigation and the particular circumstances surrounding Defendant's breath test. Officer Stevenson explained that he read Defendant the Implied Consent Act, including the right to an independent chemical test, and took Defendant to a hospital for blood testing. He also testified that he does not remember why he ultimately chose to leave the hospital without conducting the blood test, but there was a "high possibility" that the hospital would have taken too long to conduct a blood test the night of Defendant's DWI arrest. Officer Stevenson further testified that Defendant consented to take a breath test, that he did not remember anything to indicate that Defendant wished to have an additional test performed, and that he would have brought Defendant back to the hospital if Defendant had requested an independent blood test.

{8} Officer Stevenson also discussed his certification to administer tests on the IR 5000 and estimated that he had administered approximately two hundred breath tests on the IR 5000 as of the date of Defendant's breath test. The officer discussed the process by which the IR 5000 self-tests and explained that he had no knowledge of the machine's inner workings. Officer Stevenson further discussed the factual circumstances of Defendant's particular test and his belief that the IR 5000 was working properly at the time of the test and

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that he had properly administered the test to Defendant. Finally, the officer discussed the incriminating statements made by Defendant during the course of his investigation and DWI arrest. Defense counsel did not object to Officer Stevenson's testimony regarding Defendant's incriminating statements the evening of his arrest. Additionally, during cross-examination of Officer Stevenson, defense counsel introduced the DVD of Defendant's field sobriety tests.

{9} When Officer Stevenson testified regarding the IR 5000 read-out containing Defendant's results, defense counsel cited to Melendez-Diaz and Crawford and objected to the foundation for the breath test results. Additionally, defense counsel cross-examined Officer Stevenson regarding his lack of knowledge of the factors that affect the accuracy and inner workings of the IR 5000. Defense counsel continued this line of questioning during cross-examination of Officer Zavala. Noting that Officer Zavala was not an expert on the machine and did not understand any of the machine's inner workings, Defendant objected to his testimony regarding the IR 5000 on the basis of foundation. No other foundational witnesses were called by the State to testify about the underlying science or reliability of the IR 5000. The district court overruled Defendant's foundational objections and admitted the IR 5000 read-out of Defendant's breath test results.

{10} After the close of the State's case-in-chief, the district court heard testimony from Defendant. Defendant testified that he wanted a blood test but was never given one. Defendant explained that he repeatedly requested a blood test, but Officer Stevenson told him there was not enough time. However, Defendant also explained that he was afraid Officer Stevenson would add to...

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