State v. Montoya

• Court: Court of Appeals of New Mexico
• Citation: 382 P.3d 948
• Docket Number: 34,319,34,298
• Parties: State of New Mexico, Plaintiff–Appellee, v. Andrea Montoya, Defendant–Appellant. and State of New Mexico, Plaintiff–Appellee, v. Michael Yap, Defendant–Appellant.
• Decision Date: 29 June 2016

382 P.3d 948

State of New Mexico, Plaintiff–Appellee,
v.
Andrea Montoya, Defendant–Appellant.
and
State of New Mexico, Plaintiff–Appellee,
v.
Michael Yap, Defendant–Appellant.

34,298
34,319

Court of Appeals of New Mexico.

Filing Date: June 29, 2016
Certiorari Denied, July 29, 2016, S-1-SC-35987

Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, N.M. for Appellee.

Bennett J. Baur, Chief Public Defender, Sergio J. Viscoli, Assistant Appellate Defender, Santa Fe, N.M., for Appellant Montoya (34,298).

Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, N.M., for Appellee.

Bennett J. Baur, Chief Public Defender, Santa Fe, N.M., Steven J. Forsberg, Assistant Appellate Defender, Albuquerque, N.M., for Appellant Yap (34,319).

OPINION

WECHSLER, Judge.

{1} In the interest of judicial economy, the Court is filing a consolidated opinion addressing two different appeals. Defendant Andrea Montoya and Defendant Michael Yap appeal their convictions for driving under the influence of intoxicating liquor or drugs (DWI), contrary to NMSA 1978, § 66–8–102 (2010). Both Defendants were represented by the same trial counsel and argue on appeal that, because no uncertainty computation was applied to their breath alcohol test (BAT) results, the results are unreliable such that admission into evidence at trial constituted an abuse of discretion. Because the substance of Defendants' admitted evidence does not affirmatively demonstrate a lack of reliability within our regulatory scheme for determining breath alcohol content (BAC), we conclude that the admission of Defendants' BAT results did not constitute an abuse of discretion. Montoya's additional argument related to improper admission is mooted by this conclusion. Yap additionally argues that (1) his BAT results were inadmissable under Rule 11–403 NMRA and (2) even if his BAT results were admissible, they provide insufficient evidence upon which to base a DWI conviction beyond a reasonable doubt. Yap has neither demonstrated that his BAT results are subject to exclusion under Rule 11–403, nor that his conviction was supported by insufficient evidence. Therefore, we affirm as to both Defendants.

BACKGROUND

Montoya

{2} On May 19, 2012, Montoya was pulled over by an Albuquerque Police Department traffic officer for speeding. After approaching the vehicle, the officer observed that Montoya showed signs of intoxication. A DWI unit was dispatched to the location of the traffic stop. Upon arrival, Officer Peter Romero observed that Montoya had bloodshot, watery eyes, slurred speech, and an odor of alcohol emanating from her person. Montoya's performance on field sobriety tests indicated impairment. She was placed under arrest and transported for breath alcohol testing.

{3} Officer Romero conducted Montoya's BAT using the Intoxilyzer 8000 (IR 8000), which he was trained on and certified to operate. Officer Romero followed all pre-test protocol, including observation of a twenty-minute deprivation period. Montoya's first

382 P.3d 950

attempt to produce a breath sample was unsuccessful. On her second attempt, Officer Romero confirmed that the IR 8000 passed diagnostic checks and performed air blanks before and after each subject test. The calibration check was within the required range. Certification of the IR 8000 by the Scientific Laboratory Division of the New Mexico Department of Health (SLD) was current on the date of Montoya's breath test. Two separate breath tests resulted in readings of 0.11 and 0.10.

{4} Montoya filed a motion to suppress her BAT results in Bernalillo County Metropolitan Court. The motion asserted that the absence of uncertainty computations within the SLD regulatory scheme rendered the BAT results generated invalid for evidentiary purposes. Following testimony and argument on the motion, the metropolitan court ruled that Montoya's BAT results were sufficiently reliable to be admitted into evidence.

{5} Montoya was convicted in a bench trial on August 23, 2013. In its ruling from the bench, the metropolitan court found that substantial evidence existed to convict Montoya of per se DWI under Section 66–8–102(C), but not of operating a motor vehicle while impaired to the slightest degree under Section 66–8–102(A). The district court affirmed Montoya's conviction.

Yap

{6} On March 17, 2013, Yap was pulled over by an Albuquerque Police Department traffic officer for speeding and a headlamp violation. After approaching the vehicle, the officer observed that Yap showed signs of intoxication. A DWI unit was dispatched to the location of the traffic stop. Upon arrival, Albuquerque Police Officer John Sandoval observed that Yap had bloodshot, watery eyes and an odor of alcohol emanating from his person. Yap's performance on field sobriety tests indicated impairment. He was placed under arrest and transported for breath alcohol testing.

{7} Officer Sandoval conducted Yap's BAT using the IR 8000, on which he was trained and certified to operate. Officer Sandoval followed all pre-test protocol, including observation of the twenty-minute deprivation period. Officer Sandoval confirmed that the IR 8000 passed diagnostic checks and performed air blanks before and after each subject test. The calibration check was within the required range. SLD's certification of the IR 8000 was current on the date of Yap's breath test. Two separate breath tests resulted in readings of 0.08.

{8} Yap filed a motion to suppress his BAT results in Bernalillo County Metropolitan Court. The motion asserted that the absence of uncertainty computations within the SLD regulatory scheme rendered the BAT results generated invalid for evidentiary purposes. Following testimony and argument on the motion, the metropolitan court ruled that Yap's BAT results were admissible and that challenges to the reliability of the evidence pertained to the weight, not the admissibility, of the evidence.

{9} Yap was convicted in a bench trial on December 16, 2013. In its ruling from the bench, the metropolitan court found that substantial evidence existed to convict Yap of either per se DWI, under Section 66–8–102(C), or of operating a motor vehicle while impaired to the slightest degree, under Section 66–8–102(A). The district court affirmed Yap's conviction.

STANDARD OF REVIEW

{10} We review a trial court's admission of evidence for an abuse of discretion. State v. Jaramillo , 2012–NMCA–029, ¶ 17, 272 P.3d 682. “A [trial] court abuses its discretion if its decision is obviously erroneous, arbitrary, or unwarranted[.]” State v. King , 2012–NMCA–119, ¶ 5, 291 P.3d 160 (internal quotation marks and citation omitted). To the extent that either Defendant's legal argument requires statutory interpretation, we apply de novo review. State v. Lucero , 2007–NMSC–041, ¶ 8, 142 N.M. 102, 163 P.3d 489.

ADMISSIBILITY OF BAT RESULTS

{11} In New Mexico, it is unlawful to operate a motor vehicle while under the influence of alcohol. Section 66–8–102. Section 66–8–102(C), commonly referred to as the “per se DWI statute,” provides that a person violates the statute if his or her breath or blood contains an alcohol concentration of 0.08 or more. No additional indicia

382 P.3d 951

of impairment is required for a per se DWI conviction. Bierner v. N.M. Taxation & Revenue Dep't , 1992–NMCA–036, ¶ 6, 113 N.M. 696, 831 P.2d 995. A person may also be convicted of DWI without a BAT result of 0.08 or higher upon a determination that he or she was driving a vehicle while impaired to the slightest degree. State v. Neal , 2008–NMCA–008, ¶¶ 25, 27, 143 N.M. 341, 176 P.3d 330. Under the Implied Consent Act, NMSA 1978, §§ 66–8–105 to –112 (1978, as amended through 2015), a person suspected of driving under the influence of alcohol is subject to SLD-approved chemical testing of his or her breath or blood. Section 66–8–107(A). Section 66–8–110(A) provides that “[t]he results of a test performed pursuant to the Implied Consent Act may be introduced into evidence” in criminal or civil cases.

{12} The provision of Section 66–8–110(A) permitting the introduction of BAT results into evidence is not without limitation. Generally speaking, the question of whether a defendant's BAT result is admissible “turns on each particular test and the officer's compliance with the SLD regulations [.]” State v. Anaya , 2012–NMCA–094, ¶ 20, 287 P.3d 956. SLD has promulgated breath alcohol testing regulations. See 7.33.2 NMAC (03/14/2001, as amended through 04/30/2010). Compliance with SLD regulations is a pre-condition for admissibility. See State v. Dedman , 2004–NMSC–037, ¶ 13, 136 N.M. 561, 102 P.3d 628 (“[I]f an accuracy-ensuring regulation is not satisfied, the result of the test in question may be deemed unreliable and excluded.”), overruled on other grounds by State v. Bullcoming , 2010–NMSC–007, ¶ 16, 147 N.M. 487, 226 P.3d 1 ; King , 2012–NMCA–119, ¶ 10, 291 P.3d 160 (“Compliance with the SLD regulations intended to ensure accuracy is a predicate to admission in evidence of test results.”).

{13} Unlike appeals arguing a lack of regulatory compliance, Defendants claim that...