State v. Freed

• Decision Date: 04 May 2016
• Docket Number: NO. 34,392,34,392
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. CALEB FREED, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. CALEB FREED, Defendant-Appellant.

NO. 34,392

COURT OF APPEALS OF THE STATE OF NEW MEXICO

May 4, 2016

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Stan Whitaker, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

John Kloss, Assistant Attorney General

Albuquerque, NM

for Appellee

Twila A. Hoon

Albuquerque, NM

for Appellant

MEMORANDUM OPINION

SUTIN, Judge.

{1} Following a bench trial in the metropolitan court (the trial court), Defendant Caleb Freed was convicted of driving under the influence of intoxicating liquor (DWI) under the impaired to the slightest degree standard, contrary to NMSA 1978, Section 66-8-102(A) (2010). He appealed to the district court, which affirmed his conviction. On appeal to this Court, Defendant challenges the admission of his IR 8000 intoxilyzer breath alcohol test (BAT) results, claiming that the State failed to lay a proper foundation for their admission. He also challenges the sufficiency of the evidence to support his conviction. We affirm.

DISCUSSION

{2} As to DWI, based on the totality of the circumstances recounted by the district court (none of which included the BAT results), the trial court found that Defendant was impaired to the slightest degree and was guilty of DWI. In Defendant's statement of issues filed in his district court appeal, Defendant carefully reviewed the testimony and discussions in the trial court and stated that he objected to admission of the BAT results because "the simulator as equipment does require its own certification from [the Scientific Laboratory Division (SLD)] pursuant to 7.33.2.15(B)(1) [NMAC]." In the argument in his statement of issues, however, Defendant for the first time relied on several regulations apparently not raised in the trial court, and substituted "approved" by SLD for "certified" by SLD; then argued extensively as to whyadmission of the BAT results constituted error because of the lack of approval by SLD of the simulator. The district court noted that "[n]either the regulations nor the parties explain what the difference is—or whether there is a difference between—the canister, the gas, and the simulator." The district court concluded that it need not reach the foundational questions because any error in admission of the BAT results was harmless, relying on the following reasoning.

[Defendant's] breath[]test results were .07 and .07; this evidence was relevant only to demonstrate the presence of alcohol in his system. [Defendant] testified he drank three beers and a shot an hour to an hour and a half before driving. Although this [c]ourt is mindful of the heavy weight the fact-finder can give to a breath[]test result, in the present case, [Defendant's] admissions regarding the quantity and timing of his drinking provide an ample basis for a finding of impairment by alcohol. The trial court further did not reference the breath[]test result in its findings, despite the admission of the evidence. Evidence of the .07 breath[]test results therefore did not reasonably contribute to [Defendant's] conviction under these circumstances.

(Citations omitted.)

{3} Defendant raises three issues on appeal to this Court: (1) the evidence was insufficient to support the trial court's finding that he was impaired to the slightest degree by alcohol and unable to safely operate a vehicle; (2) the trial court abused its discretion in admitting his BAT results into evidence when the State failed to establish that the simulator attached to the IR 8000 intoxilyzer used to test his blood alcohol content was approved by SLD; and (3) the trial court impermissibly shifted the burdento Defendant when the State failed to show compliance with accuracy-ensuring requirements. We first address Defendant's sufficiency of evidence point. We then address Defendant's points in regard to admission of the BAT results and any shifting of the burden of proof.

I. Sufficiency of the Evidence

{4} Defendant argues that the State presented insufficient evidence to prove beyond a reasonable doubt that he was impaired to the slightest degree by alcohol and unable to operate a vehicle safely. We "view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Holt, 2015-NMCA-073, ¶ 23, 352 P.3d 702 (internal quotation marks and citation omitted), aff'd, 2016-NMSC-011, ___ P.3d ___. In that light, "we examine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (internal quotation marks and citation omitted).

{5} "It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state." Section 66-8-102(A). To find Defendant guilty of DWI under the impaired to the slightest degree standard, the State was required to prove beyond a reasonable doubt that Defendant "was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady handnecessary to handle a vehicle with safety to the driver and the public as a result of drinking [alcohol]." State v. Gurule, 2011-NMCA-042, ¶ 7, 149 N.M. 599, 252 P.3d 823 (internal quotation marks and citation omitted); see also State v. Sisneros, 1938-NMSC-049, ¶ 18, 42 N.M. 500, 82 P.2d 274 (discussing the impaired to the slightest degree standard).

{6} Defendant does not dispute that he drove within the state after he consumed alcohol. Indeed, he admitted that he consumed alcohol prior to driving up to the sobriety checkpoint. Instead, Defendant contends that the evidence was "insufficient to create a nexus between any drinking and any driving that was impaired by the drinking." We are not persuaded.

{7} Evidence also showed that Defendant drove into the sobriety checkpoint at an abnormally high speed—between thirty to forty miles per hour—despite the presence of signs advising drivers to reduce their speed, ten to twelve uniformed police officers, safety equipment, and orange cones on the roadway. Additionally, Defendant did not immediately respond to the flashing lights, hand signals, or shouts from officers, and when Defendant finally stopped at the sobriety checkpoint, he did so abruptly.

{8} Further, Officer Hunt testified as follows. He contacted Defendant at the driver side window and observed that Defendant had bloodshot, watery eyes and a strong odor of alcohol coming from his facial area. Defendant admitted that he had consumed"three beers and a shot" about "an hour to an hour and a half" prior to driving up to the sobriety checkpoint. Defendant failed to follow directions and demonstrated numerous difficulties performing the field sobriety tests. During the walk-and-turn test, Defendant stepped off the line multiple times, paused on the ninth step and then continued to take a total of fourteen steps in one direction, turned the wrong direction, and then took sixteen steps in the opposite direction. During the one-leg-stand test, Defendant had a noticeable circular sway, and he put his foot down once.

{9} We acknowledge Defendant's arguments that contrary evidence was presented, including that he did not have slurred speech; he had no difficulty getting out of his vehicle; he did not stumble, trip, or fall; he answered all questions coherently; he stopped at the proper person in the sobriety checkpoint and no one had to get out of the path of his vehicle; and the trial court dismissed the careless driving charge against him. See NMSA 1978, § 66-8-114 (1978) (prohibiting careless driving). However, we do not reweigh the evidence on appeal. See State v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d 1156 ("[An appellate] court does not weigh the evidence and may not substitute its judgment for that of the fact[-]finder so long as there is sufficient evidence to support the verdict." (internal quotation marks and citation omitted)); see also State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 ("Contrary evidence supporting acquittal does not provide a basis for reversal becausethe [fact-finder] is free to reject [the d]efendant's version of the facts."); State v. McGhee, 1985-NMSC-047, ¶ 17, 103 N.M. 100, 703 P.2d 877 ("The determination of the weight and effect of the evidence, including all reasonable inferences to be drawn from both the direct and circumstantial evidence is a matter reserved for determination by the trier of fact.").

{10} Viewing the evidence in the light most favorable to the State, we conclude that there was sufficient evidence to support the trial court's determination of guilt based on DWI impaired to the slightest degree. See State v. Neal, 2008-NMCA-008, ¶ 27, 143 N.M. 341, 176 P.3d 330 ("Given the testimony as to [the d]efendant's driving behavior, physical condition, admission of drinking, and performance on the field sobriety tests, the fact[-]finder could rely on common knowledge and experience to determine whether [the d]efendant was under the influence of alcohol."); State v. Baldwin, 2001-NMCA-063, ¶ 16, 130 N.M. 705, 30 P.3d 394 (pointing out that a fact-finder can rely on "human experience" in deciding whether a defendant was under the influence and could "drive an automobile in a prudent manner").

II. Foundation for Admission of BAT Results and Burden; Lack of Preservation

{11} The trial court admitted Defendant's BAT results of 0.07/0.07 into evidence. Defendant asserts that the trial court abused its discretion by admitting the BAT results into evidence when the...