State v. Day
| Citation | 2006 NMCA 124,144 P.3d 103 |
| Decision Date | 12 July 2006 |
| Docket Number | No. 25,290.,25,290. |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. John C. DAY III, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Appellee.
John Bigelow, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} The State has filed a motion for rehearing and a motion and renewed motion for an immediate stay. The panel members of the original panel have considered the State's motions and hereby deny those motions. We withdraw the opinion filed June 1, 2006, and this opinion is substituted in its stead.
{2} Defendant John Day appeals his conviction for driving while intoxicated (DWI) based on a determination that his breath alcohol content was .08 or more at the time of driving. The jury inferred guilt from evidence of Defendant's eyes, speech, and behavior and a .08 breath test result taken one hour and six minutes after he was driving. We hold that absent scientific evidence of the alcohol absorption and elimination processes tied to the facts that must be considered in scientifically evaluating Defendant's alcohol absorption rate, the jury could not have rationally inferred that Defendant had a .08 alcohol content at the time of driving based on a .08 breath test reading taken an hour and six minutes later. Because the State failed to prove the required nexus between Defendant's later-taken .08 breath test result and his alcohol level at the time he was driving, we reverse Defendant's conviction based on insufficient evidence.
{3} In holding as we do, we note that many traffic stop circumstances exist in which the State seeks to prove a breath alcohol content (BAC) of .08 or more at the time of driving based on the result of a later-taken test reading. In many of these cases the later reading may be at or not far above .08 BAC. And, from a review of literature on the subject, it is equally apparent that in these instances, a scientific retrograde extrapolation process is necessary in order to arrive at a rational inference of the BAC level at the time of driving. "Retrograde extrapolation is the computation back in time of the blood-alcohol level—that is, the estimation of the level at the time of driving based on a test result from some later time." Mata v. State, 46 S.W.3d 902, 908-09 (Tex. Crim.App.2001). The literature also shows the difficulties of proof even utilizing the scientific process. The problem of proof raises a question as to the effectiveness of currently used methods to prove a BAC level at the time of driving as New Mexico law requires. The problem of proof also raises the question of whether a new statute is needed to overcome the difficulty of proof. For purposes of our discussion, there is no difference between alcohol test results produced by either blood or breath tests when used to prove a .08 BAC at the time of driving.
{4} As we discuss later in this opinion, under the current state of the law, equipment and methods of measuring alcohol level in New Mexico, in many cases requiring relation-back evidence, the State will need to present scientific evidence permitting retrograde extrapolation in order for a jury to rationally and reasonably infer a .08 BAC at the time of driving from a later-taken BAC reading. As we also discuss later in this opinion, factual evidence relating to the individual characteristics of the accused will likely be required, together with such evidence as times and amounts of consumption of alcohol and food, and the length of delay between that consumption and the BAC test. Such facts will normally be necessary considerations for a reliable scientific absorption-elimination analysis in retrograde extrapolation.
{5} Defendant was pulled over by a police officer for an unilluminated license plate. The officer had not observed any erratic driving or improper driving behavior. The officer observed that Defendant had bloodshot and watery eyes, thought Defendant's speech was a little slurred, and smelled an odor of alcohol coming from Defendant.
{6} Based on his observations, the officer conducted one-leg stand and the heel-to-toe field sobriety tests which, in the officer's judgment, Defendant failed. The officer arrested Defendant. One hour and six minutes after the traffic stop, Defendant's BAC was measured at .08. In a second test a few minutes later it again measured .08. Defendant was charged with DWI-Third Offense in violation of NMSA 1978, § 66-8-102(F)(2) (2003) (amended 2004 and 2005). He was also charged with an open container violation under NMSA 1978, § 66-8-138(C) (2001), for having an open can of beer in the vehicle. The testimony at trial was that his friend, a passenger in the vehicle, was the one who brought the beer into the vehicle.
{7} More particularly as to the DWI charge, Defendant was charged in one count with "operat[ing] a motor vehicle while under the influence of intoxicating liquor . . . and/or in the alternative operat[ing] a motor vehicle with an alcohol concentration of eight onehundredths (.08) or more in his breath or blood[.]" See § 66-8-102(A), (C)(1). Under Section 66-8-102(A), the State would have to prove that Defendant was "less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to [himself] and the public[.]" UJI 14-4501 NMRA; State v. Martinez, 2002-NMCA-043, ¶ 7, 132 N.M. 101, 45 P.3d 41. However, under Section 66-8-102(C), the State need only prove a .08 or more BAC level at the time of driving. UJI 14-4503 NMRA; Martinez, 2002-NMCA-043, ¶ 7, 132 N.M. 101, 45 P.3d 41. At trial, the State did not present expert testimony.1
{8} When the State rested its case, Defendant moved for a directed verdict on the charge of driving with a .08 or more BAC, arguing that the borderline reading of .08 was insufficient without extrapolation evidence from which Defendant's BAC at the time of driving could be rationally inferred. The district court denied the motion. The court specifically determined that "[i]n light of [the] fact that the breath test was taken within an hour I don't think I need extrapolation evidence."
{9} Defendant then testified that while preparing dinner for himself and two roommates, Defendant drank two twelve-ounce cans of beer. He drank another during dinner. Right after dinner, he drove with a roommate to buy cigarettes. He was pulled over perhaps seven to ten minutes after he had finished dinner. Defendant also presented the expert testimony of Dr. Edward Reyes, a pharmacologist with expertise in alcohol metabolism. Dr. Reyes testified at some length about the biological processes by which alcohol is absorbed, reaches its concentration peak, and is metabolized in the body and eliminated. In describing the process, Dr. Reyes indicated that a person's BAC rises during the period of absorption and, after the alcohol hits a concentration point at which BAC is at its peak, BAC begins to decline during metabolism and elimination. Defendant's expert testified that he believed that Defendant was in the absorption phase at the time of the stop. He also answered hypothetical questions, as follows:
Q. . . . [I]f somebody ate a dinner, drank a few beers, immediately got into their vehicle and got onto the roadway and got stopped by a police officer and was later taken to a police station and tested, at the time of driving would you expect that person to be in the absorption phase or the elimination phase?
A. In the absorption phase.
Q. And why would that be?
A. Because he's got a full pot of food and alcohol in his stomach and he hasn't had time to have that stomach empty into the small intestine and have it absorbed.
Q. And I'll add to the facts of the hypothetical, from the time of driving to the time of testing was an hour to an hour and 15 minutes. Under those same facts of the hypothetical, would you expect somebody's blood alcohol level to be lower or higher at the time of driving than it was at the time of testing?
A. I would suspect his blood alcohol level to be lower when he was driving than at the time of testing.
{10} At the close of his case, Defendant argued that the State failed to present sufficient evidence of Defendant's BAC at the time of driving. The court reiterated it would not grant a directed verdict. The court stated that it was within the province of the jury to disbelieve the testimony of the expert, including the expert's belief that Defendant was in the absorption phase. Further, the court stated that case law indicates that if the BAC test occurs within two hours of driving, extrapolation evidence was not necessary.
{11} The jury was instructed on the two alternative DWI charges, namely: (1) driving under the influence of intoxicating liquor (impaired to the slightest degree), a violation of Section 66-8-102(A), and (2) driving with a BAC of .08 or more, a violation of Section 66-8-102(C)(1) (). The jury was instructed to choose one or the other of these charges—it could not convict Defendant of both. The jury chose and convicted Defendant on the BAC charge. Defendant was also convicted on the open container charge.
{12} Defendant appeals the conviction on the BAC charge for lack of sufficient evidence. Defendant also appeals on the ground the district court erred in failing to dismiss pursuant to the six-month rule contained in Rule 5-604(B) NMRA. Because we reverse the .08 DWI conviction based on insufficient evidence, we do not address the six-month rule issue. Defendant does not appeal his conviction on the open container charge.
{13} In reviewing a BAC conviction for the sufficiency of the evidence, we ...
To continue reading
Request your trial
- State v. Pickett
- State v. Downey
-
State v. Day
...one hour and six minutes after Defendant was arrested and Defendant's BAC at the time of driving. State v. Day, 2006-NMCA-124, ¶ 2, 140 N.M. 544, 144 P.3d 103, cert. granted, 2006-NMCERT-009, 140 N.M. 543, 144 P.3d 102. Our review of the evidence and pertinent case law compels our conclusio......
-
Chemical evidence
...CHEMICAL EVIDENCE 2-27 Chemical Evidence §203 §203.10 Error to Convict Defendant Without Retrograde Extrapolation In State v. Day , 144 P.3d 103 (N.M. App. 2006), the defendant was stopped because his license plate was not illuminated. No erratic driving and no moving violations were observ......