State v. Notah-Hunter

• Citation: 137 N.M. 597,113 P.3d 867
• Decision Date: 01 April 2005
• Docket Number: No. 23,877.,23,877.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Clara NOTAH-HUNTER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

113 P.3d 867

137 N.M. 597

STATE of New Mexico, Plaintiff-Appellee, v. Clara NOTAH-HUNTER, Defendant-Appellant.

No. 23,877.

Court of Appeals of New Mexico.

April 1, 2005.

Certiorari Denied June 6, 2005.

Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, for Appellee.

John Bigelow, Chief Public Defender, Sue A. Herrmann, Appellate Defender, Santa Fe, for Appellant.

Certiorari Denied, Nos. 29,181,29,162, June 6, 2005.

OPINION

CASTILLO, J.

{1} Defendant appeals from the district court's order, upon appeal from magistrate court, determining that Defendant was guilty of the offense of aggravated driving while under the influence of intoxicating liquor and affirming the magistrate court judgment. Defendant raises three issues on appeal: (1) whether the district court erred in finding that reasonable suspicion justified the officer in stopping Defendant's vehicle, (2) whether the district court erred in admitting the breath alcohol test results, and (3) whether the district court erred in finding that the breath test taken nearly ninety minutes after the stop justified the aggravated DWI finding. We affirm in part and reverse and remand for entry of judgment convicting Defendant of DWI.

I. BACKGROUND

{2} Officer Whitman of the McKinley County Sheriff's Department stopped Defendant's vehicle in Thoreau, New Mexico, on the night of February 13, 2001. After administering two field sobriety tests, which Defendant was unable to perform, the Officer placed Defendant under arrest and took her to the McKinley County Detention Center for a breath test. Defendant's first sample indicated 0.17, and the last sample showed a concentration of 0.16. Defendant was charged and later convicted of per se aggravated DWI under NMSA 1978, § 66-8-102(D)(1) (1999). Additional pertinent facts are set out in our discussion of the issues.

II. DISCUSSION

A. Jurisdiction

{3} In its answer brief, the State asserts that this Court does not have jurisdiction to hear Defendant's appeal. Citing State v. Brinkley, 78 N.M. 39, 40, 428 P.2d 13, 14 (1967) (holding that where a notice of appeal is filed one day late, the Supreme Court is without jurisdiction to hear the appellant's appeal), the State first argues that Defendant's notice of appeal was filed one day late and that she has therefore "failed to perfect" her appeal. The New Mexico Supreme Court later modified this rule to "make it clear that timely filing of a notice of appeal is not an inflexible jurisdictional requirement in all cases." Aragon v. Westside Jeep/Eagle, 117 N.M. 720, 722, 876 P.2d 235, 237 (1994). In State v. Duran, 105 N.M. 231, 233, 731 P.2d 374, 376 (Ct.App.1986), this Court held that in criminal cases, "failure to file a timely notice of appeal ... constitutes ineffective assistance of counsel per se" and that such an appeal would be considered timely. We therefore consider Defendant's appeal to be timely, despite the late filling.

{4} Relying on State v. Ball, the State also contends that this Court lacks jurisdiction because Defendant entered a guilty plea in the magistrate court. 104 N.M. 176, 185, 718 P.2d 686, 695 (1986) (affirming a district court's dismissal of de novo appeals from the metropolitan court on the basis that no right to appeal exists under the New Mexico Constitution when a defendant enters a guilty plea). Defendant has demonstrated that the magistrate court filed the judgment and sentence on the wrong form, thus giving the impression that Defendant pled guilty. The magistrate court acknowledged the error and filed an amended judgment and sentence reflecting that the guilty verdict was the result of a bench trial. Defendant properly moved to supplement the record on appeal to clarify the judgment, and that motion was granted. The record no longer supports the State's argument.

B. Reasonable Suspicion to Stop Defendant

{5} Asserting that Officer Whitman lacked reasonable suspicion when he stopped her vehicle, Defendant appeals the district court's denial of her motion to suppress evidence. The district court's decision regarding a motion to suppress involves mixed questions of fact and law. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. We review the facts in the light most favorable to the prevailing party and defer to the district court's findings of fact that are supported by substantial evidence. Id. The district court's application of law to the facts is reviewed de novo. State v. Attaway, 117 N.M. 141, 145-46, 870 P.2d 103, 107-08 (1994).

{6} Defendant argues that the district court's decision was not supported by substantial evidence. She testified that she was not speeding and was not driving in the middle of the road, and she contends that the Officer had no reason to stop her vehicle when he simply had a hunch that she was speeding. The Officer testified that "[t]here was light snow falling and the road surfaces were wet." While he acknowledged that the centerline was difficult to see, he stated that Defendant's car was "going faster than the posted speed limit of twenty-five" and was "traveling down the center of the roadway." In his opinion, a safe speed, given the existing road conditions, would have been between fifteen and twenty miles per hour. The Officer could not get a radar reading and unsuccessfully attempted to pace Defendant's vehicle. When Defendant slowed down, the Officer engaged his emergency lights, and Defendant stopped her vehicle.

{7} The district court, as the sole judge of the credibility of the witnesses and the weight to be given the evidence, was entitled to believe the Officer and to find, as the court did, that his observations were sufficient to warrant a belief that an offense was occurring. See State v. Salas, 1999-NMCA-099, ¶ 10, 127 N.M. 686, 986 P.2d 482

. As we have previously held, a police officer may stop a vehicle if he has an objectively reasonable suspicion that the motorist has violated a traffic law. State v. Vargas, 120 N.M. 416, 418-19, 902 P.2d 571, 573-74 (Ct.App.1995). Viewing the evidence in the light most favorable to the prevailing party, we find that reasonable suspicion existed for the stop. See State v. Ingram, 1998-NMCA-177, ¶ 5, 126 N.M. 426, 970 P.2d 1151.

C. Substantial Evidence for Conviction of Per Se Aggravated DWI

1. Nexus

{8} Defendant next argues that the district court erred in convicting her of aggravated DWI based on breath alcohol tests that were performed "nearly ninety minutes after the stop" without evidence relating the test results to the amount of alcohol in her system at the time she was driving. We clarify the evidence regarding timing. The record indicates that the arrest was at 10:32 p.m. and that the BAC machine logged the first result at 11:54 p.m. Thus, in our analysis, we will use one hour and twenty-two minutes as the lag time.

{9} This issue was preserved by Defendant in her closing argument when she directed the district court's attention to State v. Baldwin, 2001-NMCA-063, ¶ 2, 130 N.M. 705, 30 P.3d 394 (holding that if BAC results are marginal and are obtained after a significant lag in time, additional evidentiary requirements are necessary to relate the results to the amount of alcohol in the defendant's body at the time of driving).

{10} Defendant asserts, and the State does not contest, that the evidentiary nexus requirement outlined in Baldwin for per se DWI cases should also apply to the crime of per se aggravated DWI. We agree. Both crimes require a minimum alcohol concentration at the time of driving; and additionally, the Uniform Jury Instructions for both offenses require that the minimum alcohol concentration relate to the time the "defendant operated a motor vehicle." See UJI 14-4503, -4506 NMRA.

{11} New Mexico law has primarily dealt with the evidentiary nexus in per se DWI cases. See State v. Martinez, 2002-NMCA-043, 132 N.M. 101, 45 P.3d 41

; State v. Christmas, 2002-NMCA-020, 131 N.M. 591, 40 P.3d 1035; Baldwin, 2001-NMCA-063,

130 N.M. 705,

30 P.3d 394; State v. Cavanaugh, 116 N.M. 826, 867 P.2d 1208 (Ct.App. 1993). But see State v. Burke, 1999-NMCA-031, ¶ 2, 126 N.M. 712, 974 P.2d 1169 (reversing an aggravated DWI conviction where the state conceded absence of relation-back evidence supporting BAC results), overruled on other grounds by State v. Torres, 1999-NMSC-010, ¶ 20, 127 N.M. 20, 976 P.2d 20. As we noted in Baldwin, "[t]iming is an essential element of the crime[,]" requiring the state to demonstrate a nexus between a borderline BAC and the time that the "`defendant operated a motor vehicle.'" 2001-NMCA-063, ¶ 8, 130 N.M. 705,

30 P.3d 394 (quoting UJI 14-4503). Establishing a nexus is important because the "longer the delay between the time of [the] incident and [the] sample collection, the more difficult it becomes, scientifically, to draw reasonable inferences from one `data point[ ]' back to the `driving' time." Id. ¶ 17 (internal quotation marks and citation omitted).

{12} We find this reasoning equally applicable to per se aggravated DWI. Therefore, when a defendant is charged with per se aggravated DWI on the basis of a BAC result of 0.16 or marginally higher that is obtained after a significant lag in time, the State must demonstrate a sufficient nexus between the BAC result and the driver's alcohol content at the time of driving. This can be accomplished by introducing additional corroborating evidence. As in Baldwin, we do not attempt to provide a comprehensive list of the forms such evidence may take. Id. ¶ 2. Certainly, properly admitted "expert testimony relating the test result back in time to the time of driving" would be included. Id. In Baldwin, we commented that "a police officer's observation of significant incriminating behavior on the part of the driver[]" would also provide evidence of nexus. Id. In cases of aggravated DWI, however, we have concerns about the type of behavior that would allow a reasonably logical inference that a...