State v. Baldwin, 21,006.

• Decision Date: 19 July 2001
• Docket Number: No. 21,006.,21,006.
• Citation: 30 P.3d 394,2001 NMCA 63,130 N.M. 705
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Richard BALDWIN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

30 P.3d 394

130 N.M. 705

2001 NMCA 63

STATE of New Mexico, Plaintiff-Appellee, v. Richard BALDWIN, Defendant-Appellant.

No. 21,006.

Court of Appeals of New Mexico.

July 19, 2001.

Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellee.

LeRoy Duarte, Albuquerque, NM, for Appellant.

OPINION

BOSSON, Chief Judge.

{1} The opinion heretofore filed in this case is withdrawn and the following substituted therefor.

{2} This appeal examines the evidence required to sustain a conviction under the so-called per se section of the driving while under the influence (DWI) statute, NMSA 1978, § 66-8-102(C) (1999). We hold that a blood or breath alcohol test administered over two hours after the time of driving, and yielding only marginal results, must be corroborated by additional evidence to support a jury verdict. That corroborative evidence may take various forms which we do not attempt to catalogue in this opinion. The evidence might include a police officer's observation of significant incriminating behavior on the part of the driver, or the evidence might include expert testimony relating the test result back in time to the time of driving. However, in the absence of probative corroborating evidence, Defendant's conviction lacks substantial evidence and cannot stand. Accordingly, we reverse Defendant's conviction under Section 66-8-102(C). We affirm Defendant's remaining conviction.

BACKGROUND

{3} At about 12:30 a.m., New Mexico State Police Officer T.E. Christian observed Defendant driving his vehicle across the median on I-40 near Moriarity onto the interstate heading in the opposite direction. The officer stopped Defendant's car because, in his opinion, it was illegal to turn in a median.

{4} Other than the illegal turn, the officer did not observe Defendant driving erratically or in an unsafe manner. Defendant stopped his vehicle promptly upon seeing the officer's signal. At that point, the officer did not suspect Defendant of DWI. Upon conversing with Defendant, the officer detected a moderate odor of beer on his breath. His speech was normal. According to the officer's testimony, Defendant admitted that during the past hour he had drunk a "few" beers or a "couple" of beers at a nearby bar in Moriarity. The officer then required Defendant to perform three field sobriety tests: the finger counting test, the counting backward test, and the horizontal gaze nystagmus (HGN) test which, according to the officer, Defendant failed. The officer then administered a breath alcohol test to Defendant. Defendant was charged with two DWI counts, under Sections 66-8-102(A) and 66-8-102(C), as well as driving illegally on a divided highway (crossing the median) in violation of NMSA 1978, Section 66-7-319 (1978). Approximately two hours and fifteen minutes after Defendant's arrest, a blood alcohol test was administered which showed a blood alcohol concentration (BAC) of 0.08.

{5} At trial, the State first attempted to introduce the results of the breath alcohol test, but the State was unable to provide an adequate foundation for the accuracy of the test machine, and the court sustained Defendant's objection. Those test results are not part of this record. Over Defendant's objection, the State was then allowed to introduce the results of the blood alcohol test. At the conclusion of the State's case, Defendant moved for a directed verdict based on the insufficiency of the evidence. The court granted Defendant's motion for a directed verdict with respect to the DWI charge under Section 66-8-102(A) ("It is unlawful for any person who is under the influence of intoxicating liquor to drive...."). However, the court denied the motion with respect to the DWI charge under Section 66-8-102(C) ("It is unlawful for any person who has an alcohol concentration of eight one-hundredths or more in his blood or breath to drive...."). After Defendant presented his case, the jury deliberated and convicted Defendant of violating the per se section of the DWI statute, Section 66-8-102(C), as well as driving illegally on the median.

{6} Defendant raises three issues on appeal: (1) whether the trial court erred in denying Defendant's motion for a directed verdict and post-trial motion directed to the DWI charge under Section 66-8-102(C) based upon the State's failure to establish an evidentiary nexus between the blood alcohol test administered over two hours after driving and Defendant's likely BAC at the time of driving, (2) whether the court erred in denying Defendant's motion for a directed verdict on the charge of driving on divided highways under Section 66-7-319, and whether that conviction was supported by substantial evidence, and (3) whether the court erred in admitting into evidence the results of the HGN test. We affirm on the last two issues with minimal discussion. The first issue, however, presents a more substantial challenge, and is to that question that we now turn.

DISCUSSION

Defendant's conviction under Section 66-8-102(C) was not supported by substantial evidence.

{7} A conviction under Section 66-8-102(C) requires proof of a BAC of 0.08 or more at the time of driving. New Mexico's UJI 14-4503 NMRA 2001 sets out the essential elements for the State to prove: first, "[t]he defendant operated a motor vehicle," and second, "[a]t that time, the defendant had an alcohol concentration of eight one hundredths (.08) grams or more in [one hundred milliliters of blood] [or] [two hundred ten liters of breath]."

{8} Timing is an essential element of the crime. The State must prove a nexus between a BAC of 0.08 or more and the time "defendant operated a motor vehicle." Id.; see also Bierner v. State ex rel. Taxation & Revenue Dep't, 113 N.M. 696, 698, 831 P.2d 995, 997 (Ct.App.1992) (distinguishing a DWI charge from a driver's license revocation proceeding in which the state does not have to prove a nexus between an excessive BAC and the time of driving). Timing is also an essential element for a conviction under Section 66-8-102(A). See UJI 14-4501 NMRA 2001. Because Defendant's BAC test was administered over two hours after he finished driving, Defendant argues that the essential element of timing or relation back to the time of driving required direct proof, and that in the absence of such evidence the State left the element of timing to jury speculation.

{9} This is not our first occasion to address the "relation back" issue. In State v. Cavanaugh, 116 N.M. 826, 829-30, 867 P.2d 1208, 1211-12 (Ct.App.1993), we rejected a similar argument based on facts and circumstances specific to that case. There, we affirmed a DWI conviction under Section 66-8-102(C) when the police administered a blood alcohol test slightly less than two hours after the arrest which yielded a BAC of 0.13. We described that BAC as "sufficiently over the [legal] limit," which was then set by statute at 0.10. Id. at 830, 867 P.2d at 1212.

{10} Significantly, the court in Cavanaugh noted that the BAC of 0.13 was "combined with the evidence of [d]efendant's behavior before, at, and after the time of driving" to sustain the conviction. Id. After being detected with liquor on his breath, Cavanaugh fled the scene leading the police on a high speed chase. Id. at 829, 867 P.2d at 1211. Cavanaugh violently resisted arrest even after his capture. Id. We held that those two kinds of evidence—a BAC sufficiently over the legal limit combined with egregious, incriminating behavior—met a threshold level of substantial evidence, and the jury was allowed to infer without direct evidence that Cavanaugh's BAC was likely over the legal limit at the time of driving. Id. at 830, 867 P.2d at 1212.

{11} The specific facts on which we relied in Cavanaugh demonstrate just how different the case is before us. Here, in contrast to Cavanaugh, we have no BAC "sufficiently over the limit." After the passage of over two hours, Defendant's BAC was exactly at 0.08 and no more. Even the State's expert acknowledged that a certain margin of error in the test results must be taken into account.¹ Based on the observations of the arresting officer, Defendant's contemporaneous behavior appears unremarkable when compared to Cavanaugh. Cf. id. (noting Cavanaugh's egregious behavior "before, at, and after" the time of driving).

{12} Like Cavanaugh, Defendant had trouble with field sobriety tests. When requested to count backward from ten to one, Defendant continued to zero instead of stopping at one. When he was asked to count his fingers, Defendant omitted his pinky finger; then after re-instruction he counted correctly and then incorrectly. When given the HGN test, Defendant was unable to keep his head still despite instructions to do so. In regard to all three tests, the officer testified that Defendant's inability to follow instructions meant that he had failed each test. The officer concluded that the results of these field sobriety tests, coupled with evidence of drinking, suggested that Defendant was under the influence of alcohol. The officer offered no testimony as to whether the field sobriety tests could be used to corroborate Defendant's 0.08 BAC reading and relate it to the time of driving. {13} We make one important observation in regard to how this evidence compares to Cavanaugh. Here, the field sobriety tests and other evidence of Defendant's behavior might have been probative of the DWI charge under Section 66-8-102(A), but the trial court found that evidence so unpersuasive that it directed a verdict against the State on that charge. We think this is significant because, at least on this record, it neutralizes any inference one might otherwise try to draw from Defendant's behavior to corroborate the BAC readings, relate them back to the time of driving, and prove a case under Section 66-8-102(C). In contrast, the court in Cavanaugh allowed the same charge under subsection (A) to go to the jury, and we upheld the sufficiency...