State v. Granillo-Macias

• Decision Date: 20 December 2007
• Docket Number: No. 26,156.,26,156.
• Citation: 176 P.3d 1187,2008 NMCA 021
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ivan GRANILLO-MACIAS, Jr., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

176 P.3d 1187

2008 NMCA 021

STATE of New Mexico, Plaintiff-Appellee, v. Ivan GRANILLO-MACIAS, Jr., Defendant-Appellant.

No. 26,156.

Court of Appeals of New Mexico.

December 20, 2007.

Certiorari Denied, February 1, 2008, No. 30,859.

Gary K. King, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Santa Fe, NM, Josephine H. Ford, Assistant Appellate Defender, Albuquerque, NM, for Appellant.

OPINION

SUTIN, Chief Judge.

{1} The opinion filed in this case on November 1, 2007, is withdrawn and the following opinion is substituted in its place.

{2} Defendant Ivan Granillo-Macias, Jr. was convicted of driving while intoxicated (DWI) in a metropolitan court bench trial. In an on-the-record appeal from the trial court conviction, the district court affirmed. On appeal to this Court, Defendant asserts that (1) there was insufficient probable cause to arrest him, (2) the metropolitan court (the trial court) erred in admitting the breath test results, (3) he was denied his confrontation right, and (4) if admission of the breath test results was not prejudicial or was harmless error, the evidence was insufficient to prove impairment beyond a reasonable doubt. We affirm,

BACKGROUND

{3} Defendant was stopped at a sobriety checkpoint around 2:40 a.m. The officer smelled an odor of alcohol that appeared to be coming from Defendant. According to the officer, Defendant was fumbling; was slow to respond to the officer's request that he exit the vehicle and held onto the door as he got out of the vehicle; and, as Defendant walked to the back of the vehicle, he kept his hand on it for balance. The officer administered four field sobriety tests (FSTs).

{4} The officer testified as follows regarding her observations of Defendant's FST performance. Defendant failed to maintain his position once during the instruction phase of the walk-and-turn test. During the performance phase of the walk-and-turn test, Defendant missed putting his feet heel to toe by more than one inch on three of the first set of steps and once on his second set of steps. Early in the test, Defendant raised his arms a little over a forty-five degree angle and maintained them in that position" until he turned, when he put them down, but toward the end of the second set of steps he put them back up again. He also stopped once during the test. While he took the correct number of steps, Defendant did not turn as instructed; instead, he left his front foot in place and took one large step to turn. During the one-leg-stand test, Defendant raised his arms and also swayed heavily. Further, throughout this test, the officer kept motioning to Defendant and telling him that he needed to raise his foot up higher, but he only raised it about one inch off the ground. During the finger-to-nose test, Defendant swayed, did not follow instructions, and missed touching his nose with the tip of his finger.

{5} Following these FSTs, the officer administered breath alcohol content (BAC) tests with an Intoxilyzer 5000 machine (the breath machine), resulting in BAC readings of 0.11 and 0.13. In regard to certification of the breath machine, the officer testified that based on her experience she thought the breath machine did not appear to be malfunctioning and that it appeared to be working properly. The officer was a certified operator with almost eleven years of experience as an officer and with the breath machine. The officer did not testify that she had any knowledge of certification procedures required under Scientific Laboratory Division (SLD) regulations. See 7.33.2.2 NMAC, 7.33.2.3 NMAC (stating that the regulations governing the certification of breath alcohol testing instruments are promulgated by the Secretary of the Department of Health, and that administration and enforcement of the regulations is the responsibility of the SLD). However, she testified that she was certified to operate the machine and also that "the certification for the machine was adhered to it." She testified further that the machine was working properly that evening, and that the machine performed the self-test check, as well as the calibration check during the taking of Defendant's two breath samples, and that the calibration range was within acceptable levels. The results of Defendant's breath tests were admitted into evidence. The metropolitan court found Defendant guilty of DWI first offense and the district court affirmed.

DISCUSSION

Probable Cause to Arrest

{6} Defendant attacks the validity of his arrest, and asserts lack of probable cause and error in the court's refusal to dismiss for lack of probable cause. He asserts that the officer did not have a reasonable belief, based on Defendant's behavior, including his performance of the FSTs, that he was "too impaired to drive safely." He also asserts that the tests were not administered or interpreted according to the standards of the National Highway Transportation Safety Administration (NHTSA), and that the FSTs were therefore not valid evidence of alcohol intoxication, particularly in subjects with leg injuries. He further asserts that admission of the officer's testimony about his performance of the FSTs was error, because performance of FSTs does not constitute reliable evidence of impairment.

{7} "Whether probable cause exists is a mixed question of law and fact. We review legal conclusions de novo, but defer to the trial court's findings of fact. Our review of factual determinations is limited to determining whether there was substantial evidence to justify a warrantless arrest." State v. Jones, 1998-NMCA-076, ¶ 9, 125 N.M. 556, 964 P.2d 117 (citation omitted).

{8} We review evidentiary rulings for abuse of discretion. State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995), rev'd in part 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[,]" is clearly untenable, or is not justified by reason. Woodward, 121 N.M. at 4, 908 P.2d at 234 (internal quotation marks and citation omitted); see also State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85 (same).

{9} An officer has probable cause to arrest when the facts and circumstances within the officer's knowledge are sufficient to warrant the officer to believe that an offense has been or is being committed. State v. Sanchez, 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d 446. "An officer does not have to observe a suspect actually driving in an impaired manner if the officer, based upon all the facts and circumstances, has reasonable grounds to believe that [the driver] had been driving while intoxicated." Id. (internal quotation marks and citation omitted). Our probable cause inquiry is whether it was objectively reasonable for the officer to believe that Defendant had been driving while he was to the slightest degree impaired, that is, unable "to exercise the clear judgment and steady hand necessary to handle a vehicle" in a safe manner. UJI 14-4501 NMRA; Sanchez, 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d 446. "We judge reasonableness by an objective standard, mindful that probable cause requires more than a suspicion, but less than a certainty." Sanchez, 2001-NMCA-109, ¶ 11, 131 N.M. 355, 36 P.3d 446 (internal quotation marks and citation omitted). In reviewing the evidence supporting probable cause, "[e]ach case stands on its own facts; there is no one set of circumstances required for probable cause." Id. ¶ 12 {10} Defendant argues that the record does not show that the FSTs were performed in strict compliance with the NHTSA manual, which requires strict compliance "for standardization." In support of his arguments, Defendant states, for example, that it is not clear from the record whether the officer explained to Defendant that he would be judged on whether he maintained heel-to-toe contact at all times. Defendant further states that the record does not show that the officer gave him the required instructions in the NHTSA manual which states, "When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back." In addition, Defendant states that it is not clear from the record whether the officer gave him the required instructions in regard to the one-leg-stand test. In sum, based on what he contends is not clear in the record, Defendant asserts that the officer's testimony was inadmissible because the FSTs were invalid in that they were not conducted in strict compliance with NHTSA standards, and because the officer did not interpret Defendant's performance in strict compliance with NHTSA standards for evaluation of subjects with injuries or medical conditions.

{11} On appeal, Defendant does not show where he introduced any part of any NHTSA manual in evidence for the metropolitan court's consideration. Defendant has not caused any part of any manual to be a part of the record on appeal. Further, Defendant relies solely on Ohio case law that has either been superseded by statute or that for the most part consists of unpublished opinions. See Gormley v. Coca-Cola Enters., 2004-NMCA-021, ¶ 10, 135 N.M. 128, 85 P.3d 252 (citing Gonzales), aff'd and superseded by 2005-NMSC-003, ¶ 11 n. 1, 137 N.M. 192, 109 P.3d 280 (considering unpublished decisions for illustration purposes only, and stating that "[i]t continues to be the practice of this Court to only rely on published cases as precedent"); State v. Gonzales, 110 N.M. 218, 227, 794 P.2d 361, 370 (Ct.App.1990) (stating that "unpublished orders, decisions, or memorandum opinions are not meant to be cited as controlling authority because such opinions are written solely for the benefit of the parties"), aff'd, 111 N.M. 363, 805 P.2d 630 (1991). Moreover, Defendant's objections at trial regarding the FSTs made no mention of the NHTSA...