State v. Dedman

• Decision Date: 17 November 2004
• Docket Number: No. 28,261.,28,261.
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Phillip DEDMAN, Defendant-Respondent.
• Court: New Mexico Supreme Court

102 P.3d 628

136 N.M. 561

2004 NMSC 37

STATE of New Mexico, Plaintiff-Petitioner, v. Phillip DEDMAN, Defendant-Respondent.

No. 28,261.

Supreme Court of New Mexico.

November 17, 2004.

Patricia Madrid, Attorney General, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM, for Petitioner.

John Bigelow, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

OPINION

MINZNER, Justice.

{1} The State appeals from an unpublished opinion of the Court of Appeals, State v. Dedman, No. 23,476 (N.M.Ct.App. Aug. 8, 2003), affirming an order suppressing evidence of a blood alcohol test in a prosecution for aggravated driving while under the influence of intoxicating drugs (DWI), contrary to NMSA 1978, § 66-8-102(D) (1999, prior to 2003 & 2004 amendments). The Court of Appeals concluded that the State had failed to lay an adequate foundation for admission of the report because it did not offer proof that Defendant's blood was drawn using the veni-puncture method. Dedman, No. 23,476, slip op. at 6. The State appeals pursuant to NMSA 1978, § 39-3-3(B)(2) (1972) and Rule 12-502 NMRA 2004, contending that whether or not the veni-puncture method of drawing blood was used to obtain the sample did not affect the admissibility of the blood alcohol report and that the unavailability of the nurse who drew the sample to testify at trial did not require the exclusion of the report. We hold that the State's offer of proof, which included the testimony of the toxicologist who prepared the report and the officer in whose presence the blood was drawn, provided sufficient foundation for admission of the report and that lack of opportunity to cross-examine the nurse who drew the sample did not violate Defendant's confrontation rights. We therefore reverse and remand.

I

{2} On January 15, 2002, Defendant, while allegedly intoxicated, drove his pick-up truck into a street sign while attempting to elude police officers in McKinley County, New Mexico. After Defendant was placed in custody, he was taken by ambulance to the hospital because he had welts, bruises, and swollen eyes. At the hospital, Officer Anthony Ashley asked Defendant to take a blood alcohol test because he could smell the odor of intoxicating liquor coming from Defendant's breath. Defendant consented to having his blood drawn, and the test was conducted in the presence of Officer Ashley.

{3} Defendant was charged by criminal information with two counts of aggravated assault upon a peace officer, contrary to NMSA 1978, § 30-22-22 (1971); one count of resisting, evading or obstructing an officer, contrary to NMSA 1978, § 30-22-1 (1981); and one count of aggravated driving while under the influence of intoxicating liquor or drugs, contrary to Section 66-8-102(D). Defendant was convicted of the offense of resisting, evading, or obstructing an officer and the lesser included offense of assault upon a peace officer, contrary to NMSA 1978, § 30-22-21 (1971). Defendant was acquitted on the second count of aggravated assault upon a peace officer. As for the aggravated DWI charge, following the State's offer of proof, the district court excluded a blood alcohol report as violative of Defendant's right to confrontation because the nurse who drew the blood samples was unavailable to testify. The district court then recessed Defendant's trial on this charge and permitted the State to appeal.

{4} The Court of Appeals affirmed the district court on different grounds. In affirming the district court's suppression of the report, the Court of Appeals noted that, under NMSA 1978, § 66-8-110(A) (1993, prior to 2003 amendment), the results of a blood alcohol test could be introduced into evidence when the test was performed pursuant to the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 1993, prior to 2003 amendment). Dedman, No. 23,476, slip op. at 3. NMSA 1978, § 66-8-107(A) (1993) of the Implied Consent Act requires that blood tests be approved by the Scientific Laboratory Division (SLD) of the Department of Health pursuant to NMSA 1978, § 24-1-22 (1981, prior to 2003 amendment), and Section 24-1-22(A) authorizes SLD to "promulgate ... methods to test persons believed to be operating a motor vehicle under the influence of ... alcohol." See Dedman, No. 23,476, slip op. at 3-4. Under this authority, SLD had promulgated a regulation, Blood and Breath Testing Under the New Mexico Implied Consent Act, 7.33.2.12(A)(1) NMAC, (2001), which required, among other things, that blood samples be "collected by veni-puncture." Dedman, No. 23,476, slip op. at 3-4. The Court of Appeals concluded that strict compliance with the veni-puncture method was a prerequisite to the admission of the blood alcohol report. Id. at 5-6. In the absence of confirmation that veni-puncture had been utilized, the exclusion of the report was proper. Id. at 6. The Court of Appeals did not address whether the report's admission would have violated Defendant's right to confrontation. Id. The Court reasoned that in the absence of evidence that the blood test was conducted in accordance with a statutorily mandated regulation requiring that the blood sample be collected using the "veni-puncture" method, it was not an abuse of discretion to exclude the report. Id. at 2, 6. The State petitioned for a writ of certiorari.

{5} On appeal, the State contends that the Court of Appeals erred in affirming the district court's order. The State argues that the Court of Appeals erred because as a general rule the foundational requirements for admission of such a report are met when the record or document is identified and testimony is offered as to the mode of preparation and storage. The State contends that it satisfied these requirements when Juliana Lucero, a forensic toxicologist employed by the SLD, "testified extensively about the blood kits, their preparation, and the manner in which samples are preserved and tested." The State suggests that whether or not Defendant's blood was drawn using the veni-puncture method might have affected the weight to be given the report but did not affect its admissibility. The State contends that the district court erred in excluding the report on Confrontation Clause grounds. The State argues that once a record is determined to be admissible under the hearsay exception for regularly kept records, the Confrontation Clause does not require its exclusion. Defendant asks the Court to quash its writ of certiorari, arguing that the Court of Appeals properly applied the relevant statutes, regulations, and case law; we decline to do so. See generally State v. Urban, 2004-NMSC-007, ¶ 10, 135 N.M. 279, 87 P.3d 1061

("[W]e would encourage parties whenever possible to present those arguments [regarding a request to quash certiorari] in a response to the petition itself, as provided by Rule 12-502(D) [NMRA 2004], rather than in the course of briefing the merits of the appeal."). We are persuaded the Court of Appeals erred in its application of the relevant statutes, regulations and case law. Cf. State v. Conn, 115 N.M. 99, 100, 847 P.2d 744, 745 (1993) (quashing the writ of certiorari in part on the ground current law had not been misstated or misapplied).

II

{6} The first issue we consider is whether the Court of Appeals erred by affirming the exclusion of the blood alcohol report on the basis that the "collection by veni-puncture" requirement was not met. We consider whether proof of veni-puncture is a prerequisite to the admissibility of blood alcohol reports.

A

{7} "Chemical test legislation generally authorizes the state's health department, attorney general, or other administrative agency to promulgate methods of chemical testing and analysis." 3 Richard E. Erwin, Defense of Drunk Driving Cases: § 28.02[3], at 28-17 (3d ed.2003). Courts around the country have differed on whether absent strict compliance with such rules and methods, test results are inadmissible. Id. at 28-17 n. 15. Some courts have held that failure to introduce evidence that the test was conducted in strict compliance with the promulgated methods made the results inadmissible. See Webb v. State, 378 So.2d 756, 757 (Ala.Crim.App.1979)

; Caffey v. State, 43 Ark.App. 160, 862 S.W.2d 293, 294 (1993); State v. Hansen, 203 N.W.2d 216, 223 (Iowa 1972). Other jurisdictions have held test results were admissible with the lack of compliance going only to the weight of the evidence. See Thomas v. People, 895 P.2d 1040, 1041 (Colo.1995); State v. Wickern, 411 N.W.2d 597, 599 (Minn.Ct.App.1987); State v. Place, 128 N.H. 75, 513 A.2d 321, 323 (1986).

{8} In New Mexico, lack of strict compliance with SLD regulations concerning blood alcohol tests initially was not viewed as making the results inadmissible; rather, the failure to comply was considered "essentially an attack on the weight of the evidence." State v. Watkins, 104 N.M. 561, 564, 724 P.2d 769, 772 (Ct.App.1986). This approach was based on the recognition that it is for the finder of fact to resolve conflicts in the evidence. See State v. Lankford, 92 N.M. 1, 2, 582 P.2d 378, 379 (1978)

; State v. Casteneda, 97 N.M. 670, 678, 642 P.2d 1129, 1137 (Ct.App.1982) (stating that it is the role of the factfinder to resolve any conflicts in the evidence and to determine the credibility and weight to afford the evidence). As a result, the Court of Appeals held in Watkins that in enacting Section 24-1-22, which authorizes the SLD "to promulgate and approve satisfactory techniques or methods to test persons believed to be operating a motor vehicle or a motorboat under the influence of drugs or alcohol," our Legislature had not intended to create a statutory right or make compliance with SLD regulations mandatory. 104 N.M. at 564,

724 P.2d at 772.

{9} In 1993, however, our Legislature amended the Implied Consent Act and the DWI statutes. See 1993 N.M. Laws, ch. 66 (amending NMSA 1978, §§ 66-8-102,-102.1,...