State v. Martinez, 30,122.

Docket NºNo. 30,122.
Citation2007 NMSC 025, 160 P.3d 894
Case DateMay 18, 2007
CourtSupreme Court of New Mexico
160 P.3d 894
2007 NMSC 025
STATE of New Mexico, Plaintiff-Petitioner,
David S. MARTINEZ, Defendant-Respondent.
No. 30,122.
Supreme Court of New Mexico.
May 18, 2007.

[160 P.3d 895]

Gary K. King, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Petitioner.

[160 P.3d 896]

John Bigelow, Chief Public Defender, Josephine H. Ford, Assistant Appellate Defender, Albuquerque, NM, for Respondent.


CHÁVEZ, Chief Justice.

{1} Defendant David Martinez challenges his conviction of driving while intoxicated. First, Martinez claims that the metropolitan court judge abused her discretion by admitting a breath-alcohol-test (BAT) card containing the test results of a breathalyser into evidence. Martinez argues that the arresting officer's testimony that he saw a certification sticker on the breathalyser indicating that the machine's certification was current was insufficient foundation for the BAT card's admissibility. Martinez also asserts that his constitutional right to confront his accusers was violated by this testimony. We reject both of his claims.


{2} Early in the morning of November 25, 2004, Officer Matt Sandoval of the Albuquerque Police Department was dispatched to the scene of a one-car accident at the intersection of I-25 and I-40. Martinez was standing near the car when Officer Sandoval arrived. Officer Sandoval noticed that Martinez smelled of alcohol and was unsteady on his feet. Officer Sandoval also noticed two full miniature whiskey bottles underneath the driver's side of the car. Based on these observations, along with a conversation he had with Martinez, Officer Sandoval believed that Martinez had been driving the crashed car. After performing poorly on a set of field sobriety tests, Martinez was arrested and transported to the North Valley Substation. There, he was read the Implied Consent Act and given a BAT. Martinez was charged by criminal complaint in Bernalillo County Metropolitan Court with aggravated driving under the influence of intoxicating liquor (DUI), see NMSA 1978, § 66-8-102(D) (2004, prior to 2005 amendment), reckless driving, see NMSA 1978, § 66-8-113 (1987), and driving with a suspended license, see NMSA 1978, § 66-5-39(A) (1993).

{3} At trial, Officer Sandoval testified that the machine he used to conduct the BAT was certified by the Scientific Laboratory Division of the Department of Health (SLD). Officer Sandoval's knowledge that the machine was certified and that its certification was current at the time of the test was gained by viewing a SLD certification sticker on the machine. When the State moved to admit the BAT card, the metropolitan court judge reserved ruling until argument could be held out of the presence of the jury. While the jury was in recess, defense counsel argued that Officer Sandoval's testimony regarding the machine's certification was insufficient to lay a proper foundation for admission of the BAT card. The main thrust of defense counsel's argument was that the BAT card could not be admitted because Officer Sandoval had no first-hand knowledge of the machine's certification. Defense counsel suggested that the person actually responsible for certification was required to testify. The State responded by claiming that Officer Sandoval's testimony that he saw a sticker on the machine showing that the machine's certification was current was sufficient for foundational purposes under Rule 11-104(A) NMRA and State v. Onsurez, 2002-NMCA-082, 132 N.M. 485, 51 P.3d 528. Defense counsel responded that this was "a matter of due process." The judge noted that State v. Smith, 1999-NMCA-154, ¶ 11, 128 N.M. 467, 994 P.2d 47, held that an officer could testify as to the contents of calibration logs without having first-hand knowledge of the actual calibrations. Finding Officer Sandoval's testimony concerning certification to be analogous, the judge allowed the BAT card to be admitted. Martinez was convicted of non-aggravated DUI1 and reckless driving.

{4} Among other issues, Martinez appealed the admission of the BAT card to the Second Judicial District Court. See NMSA 1978, § 34-8A-6(C) (1993). After the district

160 P.3d 897

court affirmed the metropolitan court, Martinez appealed 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 saw a certification sticker on the machine was not sufficient foundation for the admission of a BAT card. See id. ¶¶ 4-9. The Court of Appeals in Lizzol agreed, holding: "Upon proper challenge to certification, the State will be required to provide a reasonable quantum of direct admissible evidence going to the issue. Testimony that `a certificate was attached' and the `machine seemed to work properly' is not enough." Id. ¶ 39. We granted certiorari in Lizzol on October 12, 2006.2 2006-NMCERT-010, 140 N.M. 675, 146 P.3d 810. Shortly thereafter, a different panel of the Court of Appeals filed a memorandum opinion in this case. State v. Martinez, No. 26,137, slip op. (Ct.App. Oct. 30, 2006).

{5} In its memorandum opinion, the Court of Appeals held that Lizzol required it to reverse Martinez's DUI conviction. Id. at 8. However, two members of the three-judge panel discussed their disagreement with Lizzol. See id. at 12-15 (Pickard, J., joined by Wechsler, J., specially concurring). They believed that New Mexico's precedent, particularly Smith, allows foundational requirements to be met through an officer's testimony of what he or she saw in a document. Id. at 13-14. We granted certiorari in the instant case on December 13, 2006, but held the case in abeyance pending our opinion in Lizzol. 2006-NMCERT-012, 141 N.M. 105, 151 P.3d 66.

{6} Today, we file our opinion in Lizzol but do not reach the certification issue there because we hold that double jeopardy principles barred the State from appealing that case in the first place. State v. Lizzol, No. 30,019, 2007-NMSC-024, 2007 WL 1742190 (N.M. filed May 18, 2007). Thus, in this case we address the question of whether, for foundational purposes in admitting a BAT card into evidence, it is sufficient for an officer to testify that he or she saw a SLD certification sticker attached to the breathalyser and that the sticker revealed the certification to be current. We hold that it does. We also hold that Martinez did not preserve his argument that he was denied his Sixth Amendment right to confront his accusers and that no fundamental error occurred.


{7} We review an alleged error in the admission of evidence for an abuse of discretion. State v. Armendariz, 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526. The lower "court's ruling will be disturbed on appeal only when the facts and circumstances of the case do not support [its] logic and effect." State v. Harrison, 2000-NMSC-022, ¶ 40, 129 N.M. 328, 7 P.3d 478 (quoted authority omitted).

A. Certification of a Breathalyser Is a Foundational Requirement That Must Be Satisfied Before a BAT Card Is Admitted Into Evidence

{8} New Mexico's "per se" DUI statute provides that it is illegal for a person to drive a vehicle with "an alcohol concentration of eight one hundredths or more in his [or her] blood or breath." § 66-8-102(C)(1). The minimum breath-alcohol concentration level required for a violation of Section 66-8-102(C) is .08 grams of alcohol per 210 liters of breath. See NMSA 1978, § 66-8-111(D) (2005). In order to prove that a person was driving at or above this minimum threshold, the State will necessarily need to admit a BAT card.

{9} In New Mexico, "upon proper objection, there must be a threshold showing of the machine's validity as foundation for admission of the [test result]." Plummer v. Devore, 114 N.M. 243, 245, 836 P.2d 1264, 1266 (Ct.App.1992). Plummer initially established that before a court admits the result of a breath test into evidence, the State must make a threshold showing that, at the

160 P.3d 898

time of the test, the machine was properly calibrated and that it was functioning properly. See id. at 246, 836 P.2d at 1267. However, the list of foundational requirements that must be met by the State before a BAT card is admitted into evidence has grown over the years.

{10} In the year after Plummer, the Legislature amended the DUI statutes to provide that breath tests taken pursuant to the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2003), be approved by SLD. See NMSA 1978, § 66-8-107 (1993). The SLD regulations are codified at NMAC. In State v. Gardner, the Court of Appeals held that compliance with SLD regulations is "a condition precedent to admissibility" of the result of a breath test. 1998-NMCA-160, ¶ 11, 126 N.M. 125, 967 P.2d 465. Later, the Court of Appeals held in Onsurez that "in cases where the defendant properly preserves the objection, the State must show that the machine used for administering a breath test has been certified by SLD." 2002-NMCA-082, ¶ 13, 132 N.M. 485, 51 P.3d 528. However, because it had not been properly preserved in Onsurez, the court did not reach the issue of what the State is required to show to meet this foundational requirement. See id. ¶ 14. This case squarely presents that question.

{11} We recently clarified in State v. Dedman that, to meet foundational requirements, the State does not need to show compliance with all regulations, but only with those that are "accuracy-ensuring." 2004-NMSC-037, ¶ 13, 136 N.M. 561, 102 P.3d 628. Pursuant to Dedman, our first question is whether the regulations governing certification are accuracy-ensuring regulations. SLD regulations require that breath-alcohol testing equipment be certified by SLD for a period of up to one year. NMAC. Prior to and twice annually...

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