State v. Christmas

• Decision Date: 28 December 2001
• Docket Number: No. 21,699.,21,699.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Kent CHRISTMAS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

40 P.3d 1035

131 N.M. 578

STATE of New Mexico, Plaintiff-Appellee, v. Kent CHRISTMAS, Defendant-Appellant.

No. 21,699.

Court of Appeals of New Mexico.

December 28, 2001.

Certiorari Denied February 6, 2002.

Patricia A. Madrid, Attorney General, William McEuen, Assistant Attorney General, Santa Fe, NM, for Appellee.

Sigmund L. Bloom, Albuquerque, NM, D. Eric Hannum, Albuquerque, NM, for Appellant.

Certiorari Denied, No. 27,313, February 6, 2002.

OPINION

BOSSON, Chief Judge.

{1} Defendant was convicted of driving under the influence of intoxicating liquor (DWI), contrary to NMSA 1978, § 66-8-102(A), (C) (1999). On appeal, Defendant argues (1) the trial court abused its discretion in admitting the results of breath-alcohol testing when the breathalyzer machine's internal calibration check may not have been operational at the time of testing, (2) the trial court abused its discretion in denying Defendant's motion for a mistrial in light of inadmissible testimony regarding the horizontal gaze nystagmus (HGN) test, (3) the evidence was insufficient to support Defendant's DWI conviction because the State did not introduce evidence relating Defendant's breath-alcohol test results back to a particular breath-alcohol content at the time of driving, and (4) the trial court erred in declining Defendant's request for a special verdict form.

{2} As to Defendant's first three arguments, we affirm the trial court. Our disposition of the first three arguments makes it unnecessary to decide Defendant's fourth argument.

BACKGROUND

{3} Shortly before 1:00 a.m. on December 20, 1998, Officer Thomas Harzewski observed Defendant's vehicle driving on Interstate 25 and noticed that the license plate light was not operational. Officer Harzewski began to follow Defendant and observed Defendant's vehicle crossing the center line. When Officer Harzewski pulled Defendant over, he noticed the odor of alcohol. When Defendant was asked if he had been drinking, he acknowledged that he had consumed alcohol earlier, but said he had "slept some" in the interim before driving. Officer Harzewski conducted three field sobriety tests: the HGN test, the one leg stand test, and the walk and turn test.

{4} Officer Harzewski testified that Defendant did "fairly well" on the one leg stand test. Although the officer indicated at trial that there were some minor "clues" of possible intoxication in Defendant's performance, he decided to give Defendant the benefit of the doubt and passed him on that test.

{5} Defendant did not perform as well on the walk and turn test. Officer Harzewski testified that: Defendant failed to follow instructions, he had to ask how many steps he had taken so far, he failed to walk a straight line, and he failed to place his heel near his toe at almost every step. The officer gave Defendant two chances to perform the walk and turn before determining that he had failed that test. Additionally, Officer Harzewski testified that Defendant appeared "agitated," displayed an "aggravated attitude," and seemed "a little bit nervous."

{6} Defendant was arrested and brought to the Truth or Consequences police station, where a breath-alcohol test was administered by Officer Harzewski utilizing a breathalyzer machine. Defendant registered a .09 breath-alcohol concentration (BAC) at 1:44 a.m., and a .08 level at 1:47 a.m., about an hour after Defendant had stopped driving. At 1:45 a.m., in the interval between the two tests administered to Defendant, the machine's internal calibration check produced a reading of .000.

{7} Defendant was charged with DWI and eventually convicted by a jury. He now appeals that conviction.

DISCUSSION

Admissibility of the Breath-Alcohol Test

{8} We review the trial court's evidentiary rulings for abuse of discretion. See State v. Woodward, 1996-NMSC-012, ¶ 6, 121 N.M. 1, 908 P.2d 231,

rev'd on other grounds by Woodward v. Williams, 263 F.3d 1135 (10th Cir.2001). "`An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.'" Id. (quoting State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994); accord State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829.

{9} In the interval between the two breath tests taken by Defendant, the breathalyzer machine registered .000 on an automatic internal calibration check. This reading was an anomaly. The automatic calibration check involved a .08 simulator and should have yielded a reading of between .07 and .09. The anomalous internal calibration reading was the subject of a pretrial defense motion to suppress all breathalyzer test results, which was denied by the court.

{10} Because an issue was raised regarding the validity of the breathalyzer test results, the State was required to make some threshold showing regarding the proper functioning of the machine. See Bransford v. State Taxation & Revenue Dep't, 1998-NMCA-077, ¶ 7, 125 N.M. 285, 960 P.2d 827

; Plummer v. Devore, 114 N.M. 243, 245, 836 P.2d 1264, 1266 (Ct.App.1992). In response, the State put on evidence that the machine had been properly calibrated within one week of Defendant's test. See State v. Cavanaugh, 116 N.M. 826, 829, 867 P.2d 1208, 1211 (Ct.App.1993) (stating foundation for admission of breathalyzer may be established by evidence that machine had been calibrated within one week of a defendant's breath test). A certified key operator had checked the calibration of the breathalyzer machine on December 14 and December 21 and had determined that it was within the tolerances allowed by the Scientific Lab Division of the New Mexico Department of Health. The Truth or Consequences police department regularly calibrated the machine every five to seven days. There was testimony that the Scientific Lab Division does not require an internal calibration check at the time a breathalyzer test is actually administered, as was done in this instance.

{11} The State also introduced evidence that the anomalous internal calibration reading did not affect the reliability of the test. See State v. Smith, 1999-NMCA-154, ¶ 10, 128 N.M. 467, 994 P.2d 47

(holding the state can meet threshold showing of a breathalyzer machine's validity by presenting evidence sufficient to support a finding that the particular test was capable of producing valid results). Officer Harzewski, who administered Defendant's breath-alcohol test, did not think the .000 reading was significant because the breathalyzer machine did not give a "fail" message, which appears when there is an internal failure, radio interference, or some other problem with the equipment. The certified key operator testified that the .000 reading was likely caused by one of the solution hoses not being hooked up to the machine at the time of the test. According to the key operator, the internal calibration system is separate from the system that administers the breath test and does not affect the results. Another officer testified that he likely left the hoses unattached after conducting a radio interference check on the machine two days before Defendant's test, and he believed this to be the cause of the.000 internal calibration reading. If the machine ran an internal calibration check while the hose to the simulator standard was disconnected, the machine would normally produce a result of .000 because it would be reading air from the room and not from the simulator.

{12} The trial court was satisfied with the evidence of proper calibration and functioning of the breathalyzer machine, and we agree that the court did not abuse its discretion in coming to that determination. We conclude that any discrepancy in regard to the validity of Defendant's breathalyzer results went to the weight of the evidence to be considered by the jury. See, e.g., State v. Anderson, 118 N.M. 284, 303, 881 P.2d 29, 48 (1994)

(recognizing questions concerning test results or statistical probabilities go to the weight of the evidence and are the concerns of the fact finder); State v. Vialpando, 93 N.M. 289, 292, 599 P.2d 1086, 1089 (Ct.App. 1979) (same)

Defendant's Motion for Mistrial Regarding the HGN Test

{13} Defendant argues that the trial court abused its discretion in denying his motion for a mistrial after Officer Harzewski made an impermissible reference to the HGN test in his testimony. See State v. McDonald, 1998-NMSC-034, ¶ 26, 126 N.M. 44, 966 P.2d 752

(holding denial of mistrial will not be disturbed absent a showing of abuse of discretion). In State v. Torres, 1999-NMSC-010, ¶ 30, 127 N.M. 20, 976 P.2d 20, our Supreme Court held that the results of HGN testing constitute scientific evidence that must meet the standard of evidentiary reliability articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587-89, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (holding that scientific evidence must be shown to be not only relevant, but also reliable), and State v. Alberico, 116 N.M. 156, 167-68, 861 P.2d 192, 203-04 (1993). In the absence of evidence verifying the reliability of HGN testing, the results are inadmissible. See Torres, 1999-NMSC-010, ¶ 54,

127 N.M. 20,

976 P.2d 20.

{14} At Defendant's trial, Officer Harzewski testified that he administered three field sobriety tests, including the HGN test. At this point, the State specifically asked Officer Harzewski how Defendant had performed "with respect to the last [other] two tests." In his reply, Officer Harzewski made an impermissible reference to the HGN test by stating that Defendant "didn't pass that one."

{15} At the bench, Defendant made a motion for mistrial, which was denied. The prosecutor indicated that she had not intended to elicit any testimony regarding HGN, and had sought to avoid doing so by specifically asking the officer how Defendant performed on the two...