State v. Lizzol
| Decision Date | 28 August 2006 |
| Docket Number | No. 25,794.,25,794. |
| Citation | 2006 NMCA 130,160 P.3d 902 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Mark Joseph LIZZOL, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.
John Bigelow, Chief Public Defender, Santa Fe, NM, Meg Bailey, Assistant Appellate Defender, Albuquerque, NM, for Appellant.
{1} Defendant Mark Joseph Lizzol appeals from a district court order which reversed a metropolitan court order suppressing evidence and dismissing his case. The district court remanded the case to metropolitan court for trial on the charges of driving while under the influence of intoxicating liquor (DWI) and operating a vehicle with no taillights. Defendant appeals the order on grounds that (1) double jeopardy barred the State's appeal to district court because the metropolitan court's ruling constituted an acquittal, (2) the State had no right to appeal the metropolitan court suppression order under State v. Heinsen, 2004-NMCA-110, 136 N.M. 295, 97 P.3d 627, and (3) the metropolitan court judge properly suppressed the breath alcohol test (BAT) card because the State failed to lay a proper foundation for its admission. Concluding that the metropolitan court order was a final judgment, we hold that the State could prosecute its appeal to the district court under NMSA 1978, § 34-8A-6(C) (1993). In the particular context of this case, we hold that double jeopardy principles do not bar the State's appeal. Finally, we determine that the metropolitan court order excluding the BAT was correct, and we therefore reverse the district court's ruling.
{2} Defendant was charged with "Driving While Intoxicated," and "Defective Equipment" by a criminal complaint filed in metropolitan court. The State's first and only witness at the nonjury trial, Officer Tanner Tixier, testified about the stop, his interaction with Defendant after the stop, his decision to administer a breath test, and his subsequent arrest of Defendant for DWI.
{3} With regard to the stop, the officer stated that at approximately 1:59 a.m., while traveling eastbound on Central he noticed Mr. Lizzol's vehicle traveling westbound on Central without taillights. Because the lack of taillights presented a safety issue, the officer made a U-turn and caught up with Lizzol's vehicle. When the officer engaged his emergency lights, Lizzol immediately pulled out of traffic into Duran's Pharmacy. On cross-examination the officer stated it took about five seconds to make a U-turn, and about another three seconds for him to pull over. Officer Tixier observed no moving violations, no failure to maintain lanes, and no speeding by Lizzol. The officer observed signs of intoxication: extremely watery eyes and a strong odor of alcohol coming from the facial area and expelled breath. The officer asked if Lizzol had had anything to drink. Lizzol replied that he had a few beers. The Officer asked him to get out of the vehicle to do standardized field sobriety tests. On cross-examination Officer Tixier conceded that as he walked up to the driver's side of Lizzol's car, Lizzol waited, did not exit the car until asked to, and did not fumble while getting his documents. Lizzol opened the door and exited. The officer stated that Lizzol leaned on the car door to get out, but didn't have any concerns of him falling and he did not trip, stagger, or stumble. The defense counsel stipulated that the officer had probable cause to arrest Defendant.
{4} During the State's examination concerning administration of the breath test, the prosecutor asked the officer how he knew that the machine was certified. The officer began to testify that "there is a small certificate that is posted on the machine itself stating that," but was interrupted by defense counsel's objection on grounds of hearsay, lack of foundation, and the best evidence rule. After hearing the State's argument in response, the judge allowed the testimony, noting defense counsel's ongoing objection.
{5} The officer continued to testify about his experience conducting breath tests on the machine, the way he conducted Defendant's breath test, and the different ways the machine indicated it was working properly. The officer identified State's Exhibit A as the BAT card containing Defendant's results, and testified that he signed it. When the State moved to admit the BAT card, defense counsel objected. The judge reserved ruling until such time as defense counsel could voir dire the witness as part of his cross-examination.
{6} On cross examination, the officer acknowledged that he did not work for the scientific laboratory division of the department of health (SLD), and that he was not an SLD key operator. Officer Tixier also conceded that he had no personal knowledge or recollection of standards, maintenance, or calibration for the Intoxilyzer 5000. He could not state the last time the key operator ran maintenance on the machine. He did not know who prepared the simulator solution or when it was prepared. He was not familiar with the simulator itself. He was not familiar with the certification of the thermometer. He was not familiar with the internal diagnostic functions of the machine—including the hardware and software functions performed. He did not know what the machine was checking during the diagnostic. Neither was he familiar with the calibrations, standards, nor proficiency tests that were to be performed on the machine at regular intervals. When defense counsel asked Officer Tixier if he was familiar with the site approval for the location of the machine, Officer Tixier testified that he had no idea. He further conceded that he did not know if the Prisoner Transport Center was an approved site for using the Intoxilyzer 5000.
{7} With regard to the "certification card" referred to in his direct testimony, the officer revealed that it was a replica of an actual certificate, shrunk down to size. He did not know who put it on the machine or who signed it. He admitted having no personal knowledge with regard to that certification. He stated that he was not familiar with the weekly, monthly, bi-monthly, quarterly, semi-annual, or annual standards and calibrations, or other proficiency types of testing performed on the Intoxilyzer 5000.
{8} After a short redirect examination of the officer, the State again moved to admit the BAT card, and defense counsel again objected. Following argument by counsel, the judge narrowed the issue to whether the officer was an appropriately qualified witness under Garza v. State Taxation & Revenue Department, 2004-NMCA-061, ¶ 15, 135 N.M. 673, 92 P.3d 685. After considerable argument from counsel and defense counsel's further voir dire of the officer, the judge expressed his frustration with the issue raised by defense counsel and questioned whether he could certify the issue for interlocutory appeal. Both counsel agreed that this was not an option. The judge stated that someone had to take the issue up for review because there was "just no other way to do this," and indicated that he would enter a final order. The judge continued, stating that he thought the issue could go either way depending upon the meaning of an appropriately qualified witness under Garza. He stated:
I sure would like to find the answer to that and I'm not saying I necessarily believe it one way or the other. I am just saying right now its (sic) too close to call, and if its (sic) going to be that way I'm going to find reasonable doubt in all of this stuff so I'll go ahead and find that the officer in this case was not the proper person to be [an] appropriately qualified witness by certification and as such I'll suppress the breath test. . . . I'm gonna find that I had reasonable doubt in the case based on that, I'm assuming the State rests after this.
The State agreed it would rest. Further, the State did not argue that it had sufficient evidence for a conviction absent the BAT results. The judge concluded: "So I find that I had reasonable doubt based on that, and as such would find the Defendant not guilty at this point and that we'll just leave it as such." Counsel asked for a final order and the judge stated that he would have one ready in the morning so the State could appeal. The judge thanked the parties for their arguments and the trial was ended. The written order states: "The breath card is suppressed because the officer is found not to be `[a] qualified individual' to testify to the certification of the breath machine under . . . Garza, the case is therefore dismissed."
{9} The State appealed the dismissal to the district court. The only issues it argued on appeal to the district court involved the refusal of the metropolitan court to admit the BAT results.
{10} As we note in the introductory paragraphs of this Opinion, Defendant's first two points on appeal question the authority of the district court to entertain the State's appeal. We address the applicability of the holding in Heinsen first and then turn to the finality and double jeopardy issues.
{11} Defendant argues that under Heinsen, the State cannot appeal from a metropolitan court suppression order. The State argues that it has a right to appeal an erroneous metropolitan court order suppressing evidence in a DWI case pursuant to Section 34-8A-6(C). We review the application and interpretation of constitutional provisions, statutes, and court rules de novo to determine whether the State has a right to an appeal and to measure the scope of the appeal allowed. See State v. Gage, 2002-NMCA-018, ¶ 14, 131 N.M. 581, 40 P.3d 1025.
{12} Heinsen began life as two separate magistrate court actions. The defendant in each...
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State v. Martinez
...to the Court of Appeals. Prior to deciding Martinez's case, the Court of Appeals filed its opinion in State v. Lizzol, No. 25,794, 2006-NMCA-130, 2006 WL 3001105 (Aug. 28, 2006), where this issue was addressed. In Lizzol, the trial court concluded that an officer's testimony that he or she ......