State v. Gonzales

• Decision Date: 05 May 2016
• Docket Number: No. 33,627,33,627
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. DESEREE GONZALES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. DESEREE GONZALES, Defendant-Appellant.

No. 33,627

COURT OF APPEALS OF THE STATE OF NEW MEXICO

May 5, 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

Christina P. Argyres , District Judge

Hector H. Balderas, Attorney General

Margaret E. McLean, Assistant Attorney General

Joel Jacobsen, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Acting Chief Public Defender

Santa Fe, NM

Steven J. Forsberg, Assistant Appellate Defender

Albuquerque, NM

for Appellant

MEMORANDUM OPINION

KENNEDY, Judge.

{1} We hold that under State v. Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20, and State v. Aleman, 2008-NMCA-137, 145 N.M. 79, 194 P.3d 110, the admission of a police officer's testimony as a lay opinion concerning Defendant's being under the influence of marijuana was inadmissible, and reliance upon it by the metropolitan court was error. Conviction for driving under the influence of a drug (marijuana) under NMSA 1978, Section 66-8-102(B) (2010), requires proof beyond a reasonable doubt that the drug rendered Defendant incapable of safe driving at the time she drove. In the absence of competent evidence supporting the officer's uncorroborated hunch of a connection between marijuana and any effect on Defendant's capacity to drive being presented to the court, and in the absence of evidence of the influence of any other drug, including alcohol, Defendant's conviction is not supported by substantial evidence. We therefore reverse her conviction for driving under the influence of a drug and order the dismissal of the DUI-drug conviction. Defendant's other offenses are not part of this appeal.

I. Jurisdiction

{2} The State's assertion that Defendant exhausted her right to appeal when she appealed to the district court has already been decided in State v. Carroll, 2015-NMCA-033, 346 P.3d 372, cert. granted, 2015-NMCERT-001, 350 P.3d 92, which concluded that this Court has jurisdiction to hear on-record appeals from themetropolitan court through the district court. The State concedes this, and we consider the issue no further.

II. Background

A. The Stop

{3} Defendant was observed traveling at least ninety-five miles per hour in a sixty-mile-per-hour zone, drifting a few times between the left and middle lanes as Officer Curran pulled the vehicle over to the right shoulder. Officer Curran stopped the car and had the driver step out. There were passengers in the car, and Officer Curran smelled the odor of marijuana coming from it. Defendant "made some references to smoking marijuana earlier," to the officer without stating the exact time or amount. Defendant's eyes were bloodshot and watery, and Officer Curran smelled marijuana on Defendant's person. Officer Curran noted that Defendant was "scantily clad," meaning that all she was wearing a bustier, panties, and tights. He testified that although Defendant was friendly, cooperative, and appeared nervous, he found it strange she was not more "freaked out" or "uncomfortable" about her apparel.

B. Roadside Observations and Conclusions

{4} Defendant took the standard battery of field sobriety tests (SFSTs) that Officer Curran testified are used to determine if an officer has probable cause for arresting someone driving under the influence of alcohol or drugs. Defendant passed thehorizontal gaze nystagmus (HGN) test; she failed the others, mostly because of imperfect balance.

{5} Defendant repeatedly said that she was nervous during the SFSTs, and during the agility tests, she mentioned that her legs were shaking. Considering Defendant's driving, her performance on the SFSTs, her demeanor, and the odor of marijuana that existed both in the car and on Defendant's person, Officer Curran concluded that Defendant could not safely continue to drive the vehicle owing to the effects of marijuana and arrested her. Officer Curran testified that red eyes and body tremors were symptoms shared between marijuana and alcohol, but he did not administer a breath test for alcohol to Defendant. Although Officer Curran subjected Defendant to a blood test, no chemical test evidence was offered by the State because no witness from the State Laboratory Division (SLD) appeared to testify. The State proceeded solely with Officer Curran's testimony.

C. Trial Court Proceedings

{6} Officer Curran testified that he responded to Defendant's statement that her legs were shaking by telling Defendant that "body tremors is a sign" of marijuana use.¹ Defense counsel objected to the foundation for this testimony under Aleman. The State responded that Officer Curran is a trained "drug recognition expert" (DRE) and thathe was stating his lay opinion of what he saw and how that relates to a certain drug. The metropolitan court, apparently accepting the State's argument that the objection went to the weight of the testimony rather than its admissibility, then admitted Officer Curran's testimony about what he told Defendant.

{7} Officer Curran cited throughout the trial to his extensive training as a DRE to state that body tremors were a sign of marijuana use. This training included class work and test evaluations. Officer Curran did not, however, administer a DRE examination in this case as he had been trained to do because "there was already a determination of what category [of drug Defendant] was under the influence of," and according to him, the goals of a DRE had therefore been satisfied, based on his assessment of her attire, driving, field sobriety performance, odor of marijuana, and admission to smoking it earlier. He testified that he "definitely felt that she would not be able to operate the vehicle safely" and "saw signs of impairment," which, along with Defendant's admission and the odor of marijuana, provided the justification for her arrest.

{8} Officer Curran's determination played heavily in the State's closing arguments, because the State maintained that Officer Curran's experience and training as a DRE rendered the administration of a DRE examination superfluous, stating, "He knew what she was under the influence of, he didn't need to do a DRE, he knew she wasunder the influence of marijuana." The State also pointed to his ability to recognize the smell of marijuana and testimony that shaking was a symptom of marijuana use. The State emphasized Defendant's "overall impairment" when performing the field sobriety tests. Finally, the State asserted that Defendant demonstrated her inability to drive safely by driving ninety-five miles per hour in a sixty-mile-per-hour zone. Defendant's closing focused on Officer Curran's failure to act in accordance with his DRE training and the lack of any chemical test as inadequate evidence to support a conviction under Aleman. He also raised the State's failure to provide any evidence connecting Officer Curran's observations of Defendant's driving or field test deficiencies to the effects of marijuana. The State's response to Defendant's contention was, "Judge, DRE is drug recognition. Officer Curran didn't need to do a DRE [evaluation]; he knew what . . . Defendant was under the influence of."

D. Procedural Posture

{9} The metropolitan court found Defendant guilty of speeding, careless driving, and driving while intoxicated. The court informed Defendant that, from "the officer's testimony that [Officer Curran]'s been around marijuana, he's smelled marijuana, and he didn't just smell it from the vehicle and all the other passengers, he smelled it from you when you were out of the vehicle." The court stated that based on the facts presented, it would never want Defendant "to get back behind the wheel of the car andfeel that you were not impaired by that marijuana." The court's commentary also included impressions of Defendant's driving, inattention, and speed. Defendant was found guilty of driving under the influence of drugs (marijuana).

{10} Defendant appealed the metropolitan court's decision to the district court, which affirmed in a memorandum opinion. The district court acknowledged that despite the State's attempted offer, Officer Curran's testimony regarding marijuana and its effects was not a lay opinion because it pertained not only to his observations, but also to his specialized knowledge. The district court disregarded this issue, however, based on Defendant's stipulation that Officer Curran was "an experienced officer" who has "extensive experience as a DRE." The district court held that there was sufficient evidence for a reasonable fact-finder to determine Defendant was under the influence of marijuana to a degree that rendered her incapable of safely driving a vehicle. Defendant appealed the district court's decision.

III. Discussion

{11} The crux of this case rests on the metropolitan court's reliance on Officer Curran's opinions to prove the required elements of the offense that a drug (marijuana) rendered the Defendant "incapable of safe driving." In the absence of any proof that Defendant actually had a drug in her body in an amount capable of impairing her driving, his testimony is the sole link between Defendant and thedetermination that Defendant was under the influence of marijuana. Defendant asserts that Officer Curran's testimony to establish impairment of Defendant's driving by marijuana was improper lay testimony, that the State never attempted to qualify Officer Curran as an expert, and that even if it had, the effort would have failed. Thus, the metropolitan court should have suppressed the evidence. She also asserts that there is insufficient evidence to support her conviction. The State concedes that...