State v. King

• Decision Date: 01 November 2012
• Docket Number: No. 31,320.,31,320.
• Citation: 291 P.3d 160
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Alvin P. KING, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

291 P.3d 160

STATE of New Mexico, Plaintiff–Appellee,

v.Alvin P. KING, Defendant–Appellant.

No. 31,320.

Court of Appeals of New Mexico.

Aug. 28, 2012.

Certiorari Denied, Nov. 1, 2012, No. 33,841.

Gary K. King, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jacqueline L. Cooper, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1}Defendant, Alvin P. King, appeals from his conviction for driving while under the influence of intoxicating liquor (DWI) contrary to NMSA 1978, Section 66–8–102(C)(1)(2010), commonly referred to as per se DWI.Defendant argues that the district court(1) erred by refusing to allow him to present expert scientific testimony on the reliability and accuracy of the intoxilyzer machine used to determine his breath alcohol content, and (2) violated his confrontation rights by allowing the admission of his breath test result without live testimony from the key operator or an expert from the Scientific Laboratory Division(the SLD).We hold that Defendant was entitled to present expert testimony challenging the reliability of the intoxilyzer machine and that the expert's failure to examine the machine in question did not preclude such testimony.We reverse Defendant's conviction and remand for a new trial.As a result, we do not reach Defendant's confrontation issue.

BACKGROUND

{2}Defendant was convicted after a jury trial of per se DWI because he drove with an alcohol concentration of .08 or higher.See§ 66–8–102(C)(1).The only witness for the State was Officer Devin Largo, who testified that he stopped Defendant for a possible seat belt violation, observed signs of intoxication, read Defendant the Implied Consent Act, NMSA 1978, § 66–8–105 to –112 (1978, as amended through 2007), and performed a breath alcohol test on Defendant using an Intoxilyzer 8000 machine.Officer Largo was trained to operate the Intoxilyzer 8000, but he was not a “key operator” and did not know how it worked.A “key operator” is someone assigned by the SLD to make sure that an intoxilyzer machine is working properly.Officer Largo testified that he understood the Intoxilyzer 8000 to be operating properly based on the key operator's calibration log, which shows whether the machine passed its diagnostic tests, and the printout the Intoxilyzer 8000 produced.

{3}Defendant proposed to call an expert witness, Dr. Edward Reyes, to testify concerning the reliability and accuracy of the Intoxilyzer 8000 and its readings.Defendant proffered that Dr. Reyes was an expert in pharmacology and toxicology with an analytic chemistry background, who has been trained to use the Intoxilyzer 8000.According to Defendant, Dr. Reyes would testify concerning, inter alia, the operation of the Intoxilyzer 8000, its analytical difference from a blood alcohol test, and the possibility of inaccuracies, including inaccurately high readings.Defendant acknowledged that Dr. Reyes did not examine the specific Intoxilyzer 8000 used in this case, but Defendant proffered that Dr. Reyes' testimony would be based on the “structure, mechanisms, and workings” that are common to all Intoxilyzer 8000 machines.

{4}The district court, agreeing with the State, did not allow Dr. Reyes to testify.It reasoned that (1) Dr. Reyes did not examine the machine that was used and could not testify to the particular machine's validity, (2) Dr. Reyes' testimony would not be relevant in view of state law authorizing the use of an intoxilyzer machine, and (3) Dr. Reyes' testimony would either not be probative or its prejudicial effect would outweigh its probative value.We will focus on the district court's last reason.

ADMISSIBILITY OF DR. REYES' EXPERT TESTIMONY

{5}We review a district court's decision concerning the admission of expert testimony for an abuse of discretion.State v. Alberico,116 N.M. 156, 169, 861 P.2d 192, 205(1993).A district court abuses its discretion if its decision is “obviously erroneous, arbitrary, or unwarranted[,]” or “clearly against the logic and effect of the facts and circumstances” of the case.Id. at 170, 861 P.2d at 206.However, as our Supreme Court has expressed, an abuse of discretion review “is not tantamount to rubber-stamping”the district court's decision.Id.“It should not prevent an appellate court from conducting a meaningful analysis of the admission [of] scientific testimony to ensure that the [district court's] decision was in accordance with the Rules of Evidence and the evidence in the case.”Id.We thus turn to the rules of evidence to analyze the district court's decision in this case.SeeState v. Torrez,2009–NMSC–029, ¶¶ 1, 8–9, 146 N.M. 331, 210 P.3d 228(reviewing the district court's admission of the testimony of an expert witness concerning “gang-related law enforcement and gang culture” under the rules of evidence following Alberico).

{6}Rule 11–702 NMRA permits a qualified expert witness to testify in the form of an opinion if “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]”To analyze the admissibility of Dr. Reyes' testimony, we first look to the purpose Defendant sought to achieve in offering the testimony.SeeTorrez,2009–NMSC–029, ¶ 10, 146 N.M. 331, 210 P.3d 228(stating that “the proper initial inquiry for the admissibility of expert opinion testimony is to determine the purpose for which it is being offered”(alterations, internal quotation marks, and citation omitted)).Understanding this purpose, we then can determine whether Dr. Reyes would be qualified and whether his testimony would assist the trier of fact and be relevant, probative, and not unfairly prejudicial under the rules of evidence.Id.

{7} The per se DWI statute declares it unlawful for

a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle[.]

Section 66–8–102(C)(1).To prove per se DWI, the State introduced evidence that Officer Largo performed a breath alcohol test on Defendant using an Intoxilyzer 8000 machine, that the machine had been certified and calibrated, and that the machine read Defendant's breath alcohol content to be .11. Defendant proffered that Dr. Reyes would testify about the manner in which an Intoxilyzer 8000 works including the general pitfalls of the technology, its difference from a blood test, and the possibility of its producing an inaccurate blood alcohol content.The purpose of Dr. Reyes' testimony would have been to challenge the reliability of the breath alcohol test performed on Defendant to raise a reasonable doubt that Defendant's alcohol concentration was .08 or more.

{8} Turning to Rule 11–702, the qualifications of Dr. Reyes do not appear to be at issue.Defense counsel stated that Dr. Reyes was an expert in pharmacology and toxicology with an analytical chemistry background.The State did not raise any objection to Dr. Reyes' qualifications.When the district court asked defense counsel“what expertise does he have on this machine?,” defense counsel responded that he has been trained to use the Intoxilyzer 8000 and is familiar with the literature on these types of machines, in addition to his pharmacology and toxicology background.

{9} At least in the context of this case, the requirement of Rule 11–702 that the expert's testimony assist the trier of fact regarding an issue of fact is similar to the requirement of Rule 11–403 NMRA that the expert present relevant evidence.Indeed, Dr. Reyes' testimony would not assist the jury if his opinion were not relevant to a decision to be made by the jury.SeeRule11–401 NMRA(defining “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”).The district court ruled that Dr. Reyes' testimony would not be relevant because of state law that authorizes the use of an intoxilyzer machine.

{10}The Implied Consent Act provides that

[a]ny person who operates a motor vehicle within this state shall be deemed to have given consent, subject to the provisions of the Implied Consent Act ..., to chemical tests of his breath or blood or both, approved by the [SLD] pursuant to the provisions of [NMSA 1978, Section 24–1–22(2003) ] as determined by a law enforcement officer, or for the purpose of determining the drug or alcohol content of his blood if arrested for any offense arising out of the acts alleged to have been committed while the person was driving a motor vehicle while under the influence of an intoxicating liquor or drug.

Section 66–8–107(A).The SLD has adopted regulations concerning blood and breath testing under the Implied Consent Act.See7.33.2.1 to 7.33.2.18 NMAC(4/30/10).The regulations include the selection and evaluation of breath alcohol testing instruments and equipment, certification of the instruments and equipment, certification of operators and key operators, and calibration of equipment.7.33.2.9, 7.33.2.10 NMAC.Compliancewith the SLD regulations intended to ensure accuracy is a predicate to admission in evidence of test results.State v. Dedman,2004–NMSC–037, ¶ 13, 136 N.M. 561, 102 P.3d 628,overruled on other grounds byState v. Bullcoming,2010–NMSC–007, 147 N.M. 487, 226 P.3d 1;see alsoState v. Gardner,1998–NMCA–160, ¶ 11, 126 N.M. 125, 967 P.2d 465(holding that failure to comply with the SLD regulations concerning waiting period precludes admissibility of breath test results).

{11} In this case, we do not address the propriety of expert testimony to contest the foundational predicate of...