State v. Marquez

• Decision Date: 18 November 2009
• Docket Number: No. 31,294.,31,294.
• Citation: 223 P.3d 931,2009 NMSC 055
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Reyes MARQUEZ, Defendant-Petitioner.
• Court: New Mexico Supreme Court

223 P.3d 931

2009 NMSC 055

STATE of New Mexico, Plaintiff-Respondent, v. Reyes MARQUEZ, Defendant-Petitioner.

No. 31,294.

Supreme Court of New Mexico.

November 18, 2009.

Hugh W. Dangler, Chief Public Defender, Adrianne R. Turner, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

MAES, Justice.

{1} Following a jury trial, Reyes Marquez (Defendant) was convicted of driving while under the influence of intoxicating liquor (DWI) contrary to NMSA 1978, Section 66-8-102(A) (2005, prior to 2008 amendments). The Court of Appeals affirmed Defendant's conviction, concluding in relevant part that (1) the evidence was sufficient to establish that Defendant had been driving while impaired by alcohol to the slightest degree, and (2) although scientific testimony correlating Defendant's performance on three field sobriety tests with a ninety percent probability of a blood alcohol content (BAC) at or above the legal limit of .08 improperly had been admitted, the evidentiary error was harmless. State v. Marquez, 2008-NMCA-133, ¶¶ 15-25, 145 N.M. 31, 193 P.3d 578. We agree with the Court of Appeals that the evidence was sufficient to support Defendant's conviction, but disagree that the evidentiary error was harmless. Accordingly we reverse Defendant's conviction and remand the present case for a new trial.

I. FACTS AND PROCEDURAL HISTORY

{2} At approximately 12:50 a.m. on June 17, 2005, Defendant left a bar located on Montgomery Boulevard in Albuquerque, New Mexico. Benjamin Kirby, an officer with the Albuquerque Police Department, noticed that Defendant had "somewhat of a stagger to his step, and he ... didn't seem to have his balance about him." Officer Kirby warned Defendant that "he shouldn't be driving." Although Defendant did not explicitly acknowledge Officer Kirby's statement, he "looked at [Officer Kirby] as if he saw what [he] said, or understood what [he] said."

{3} Soon thereafter, Officer Kirby observed a white Ford truck pull into the parking lot at the same time that a red pickup truck was backing out of its parking space. Officer Kirby noticed that the white Ford truck accelerated at a very high rate of speed, as if to avoid a collision. After the danger of a collision had passed, the red pickup truck "stab[bed] the brake real hard as if, oh, there was somebody there kind of thing." The red pickup truck continued driving in reverse for approximately sixty feet and entered oncoming traffic on Montgomery Boulevard. Because Montgomery Boulevard is a "pretty dangerous street," Officer Kirby radioed dispatch to report the suspicious vehicle.

{4} Kelly Enyart, an officer with the DWI unit of the Albuquerque Police Department, was driving on Montgomery Boulevard when she received the call from dispatch. She made a U-turn and observed the red pickup truck pull into oncoming traffic while traveling in reverse. Officer Enyart pulled over the red pickup truck in a parking lot. She noticed that the driver, Defendant, had "bloodshot watery eyes," smelled of alcoholic beverage, and had "fumbling fingers" while searching for his driver's license, registration, and proof of insurance. She asked Defendant whether he had consumed any alcoholic beverages that evening, and Defendant admitted that he had drank two beers. Officer Enyart noticed that Defendant's speech was slurred. At this point, Officer Kirby approached the vehicle and recognized Defendant as the individual whom he had warned earlier in the evening not to drive.

{5} Officer Enyart asked Defendant to exit the vehicle and perform a series of field sobriety tests. Prior to administering the tests, she ensured that the area was flat, dry, well lit, and free of debris. Additionally, Officer Enyart asked Defendant whether he had any medical problems that might impede his ability to take tests that require walking or balancing. Defendant indicated that he did not.

{6} Officer Enyart noticed that, when Defendant exited his vehicle, he was slow to respond and had to put his hand on the vehicle to maintain his balance. During the horizontal gaze nystagmus (HGN) test. Defendant failed to follow instructions and swayed noticeably backward and forward. During the walk and turn test, Officer Enyart had to repeat her instructions many times. Despite her thorough explanation of the test, Defendant failed to follow instructions and exhibited five out of eight clues. At this point, Defendant informed Officer Enyart that he had walking and balancing problems due to a recent military deployment in Iraq. Defendant was unable, however, to identify anything about his service in Iraq that would have caused walking and balancing problems. Lastly, Officer Enyart administered the one leg stand test, during which Defendant exhibited three out of four clues.

{7} Thereafter, Officer Enyart arrested Defendant for DWI. Although Defendant initially agreed to submit to a breath alcohol test, he subsequently refused. Officer Enyart advised Defendant of the adverse consequences of his refusal under the Implied Consent Act, but Defendant nonetheless refused to take the test. Accordingly, Defendant was charged by complaint in metropolitan court with aggravated DWI contrary to Section 66-8-102(D)(3). Section 66-8-102(D)(3) ("Aggravated driving while under the influence of intoxicating liquor or drugs consists of a person who ... refused to submit to chemical testing, as provided for in the Implied Consent Act, and in the judgment of the court, based upon evidence of intoxication presented to the court, was under the influence of intoxicating liquor or drugs.").

{8} At trial, Officer Enyart testified that studies conducted by the National Highway Traffic Safety Administration (NHTSA) have found correlations between the clues observed during the administration of field sobriety tests and subsequent chemical tests. The prosecutor asked Officer Enyart to explain these correlations, and Defendant objected based on the lack of an adequate foundation. The metropolitan court overruled Defendant's objection and Officer Enyart testified that

[t]he studies that have been done—there's three specific studies that were done with these field sobriety tests. They've been done in Colorado, Florida, and San Diego. And, what they found is that these clues that we look for—on the walk and turn test, if somebody exhibits two or more of the eight clues, that there's a sixty-eight percent chance that they are at or above a point zero eight on their chemical test, be that a breath or a blood test. On the one-leg-stand test, they have found that if a person exhibits two or more out of those four clues, there's a sixty-five percent that their—on their chemical test, it will be at or above a point zero eight, either BAC or BRAC, depending if it's a blood test or a breath test.

The prosecutor asked Officer Enyart, "What if you put all three of the tests together?" Defendant objected, and a bench conference ensued. The metropolitan court overruled Defendant's objection, and the prosecutor repeated his question, "Under NHTSA, if you look at the clues with these three tests, what is the probability that the (inaudible) would be at or above the legal limit?" Officer Enyart explained that "[d]epending on which study you look at, it's in the ninetieth percentile."

{9} Defendant took the stand and offered his own testimony with respect to the events of the evening in question. Defendant admitted that he had consumed two beers within a two to three hour time period, but explained that he had not felt impaired to even the slightest degree. He informed the jury that he had not stumbled while exiting the bar and that he had neither seen nor heard Officer Kirby while walking to his truck. With respect to the near collision in the parking lot, Defendant testified that the white truck had pulled into the parking lot "like a bat out of hell" and that he had hit the brakes in order to avoid a collision. Defendant disputed Officer Enyart's testimony that he had performed poorly on the field sobriety tests, testifying that he "didn't have any problems falling or leaning over or anything." Defendant explained that, during his encounter with Officer Enyart, she was "angry" and "aggressive." Indeed, Defendant testified that he refused to take the breath alcohol test because he "was very upset with [Officer Enyart]. [He] felt like no matter what [he] did, she was going to charge [him] with something, by the way she treated [him]."

{10} On the basis of the foregoing evidence, the jury found Defendant not guilty of the crime of aggravated DWI, but guilty of the lesser included offense of DWI. Defendant appealed his conviction to the district court, claiming that (1) the metropolitan court had violated Rule 7-506 NMRA by not providing Defendant with a trial within 182 days of the date of his arraignment, (2) the metropolitan court improperly had admitted Officer Enyart's scientific testimony correlating Defendant's performance on the field sobriety tests with a BAC at or above the legal limit of .08, and (3) the evidence was insufficient to support his conviction. The district court affirmed Defendant's conviction.

{11} Defendant appealed from the judgment of the district court to the Court of Appeals, which affirmed Defendant's conviction in a divided opinion. Marquez, 2008-NMCA-133, ¶ 26, 145 N.M. 31, 193 P.3d 578. The Court determined that the metropolitan court's failure to try Defendant within the 182 day time period set forth in Rule 7-506 was justified by exceptional circumstances. Id. ¶¶ 9-14. The Court further determined that "a reasonable mind could accept the ... evidence [adduced at trial] as adequate to support a finding beyond a reasonable doubt that Defendant was impaired by alcohol to the slightest degree." Id. ¶ 18 (internal quotation marks and citation omitted). Lastly, the Court held...