State v. Pickett

• Decision Date: 11 May 2009
• Docket Number: No. 27,938.,27,938.
• Citation: 213 P.3d 805,2009 NMCA 077
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Lamont PICKETT, Jr., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

213 P.3d 805

2009 NMCA 077

STATE of New Mexico, Plaintiff-Appellee, v. Lamont PICKETT, Jr., Defendant-Appellant.

No. 27,938.

Court of Appeals of New Mexico.

May 11, 2009.

Certiorari Denied, No. 31,748, June 26, 2009.

Gary K. King, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Santa Fe, NM, Josephine H. Ford, Assistant Appellate Defender, Albuquerque, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} NMSA 1978, Section 66-8-102(A) (2005) (amended 2008) provides that "[i]t is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state."

A person is under the influence of intoxicating liquor if "as a result of drinking liquor [the driver] was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to [the driver] and the public."

State v. Sanchez, 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d 446 (alterations in original) (quoting UJI 14-4501 NMRA). "The foregoing standard has the shorthand nomenclature of `impaired to the slightest degree.'" State v. Neal, 2008-NMCA-008, ¶ 21, 143 N.M. 341, 176 P.3d 330, cert. denied, 2008-NMCERT-001, 143 N.M. 397, 176 P.3d 1129.

{2} Defendant Lamont Pickett, Jr. appeals the judgment of the district court affirming his conviction in the metropolitan court of driving under the influence of intoxicating liquor (DWI) in violation of Section 66-8-102(A). He contends that the metropolitan court improperly admitted evidence of his blood alcohol content (BAC) results in violation of Rule 11-401 NMRA and Rule 11-403 NMRA because they were not relevant and because they were more prejudicial than probative as there was no evidence relating the BAC results back to the time of driving. He further contends that there was insufficient evidence to prove impairment beyond a reasonable doubt. We hold that the BAC results were relevant to demonstrate that Defendant had alcohol in his system and that their consideration by the metropolitan court judge was not improper. We further hold that substantial evidence supports Defendant's conviction. We affirm.

BACKGROUND

{3} At Defendant's bench trial in metropolitan court, the evidence showed that Defendant was stopped after Albuquerque Police Officer Richard Locke observed him weaving out of his lane, coming within a foot of colliding with another vehicle. Defendant pulled over in a lawful manner and provided his driver's license, registration, and proof of insurance without difficulty. Officer Locke noticed an odor of alcohol and that Defendant had bloodshot, watery eyes. Defendant admitted that he had consumed alcohol. Officer Locke called Officer Bret White to continue the investigation because Officer Locke was going off duty. Defendant told Officer White that he had "two beers, maybe one," and he agreed to take field sobriety tests.

{4} Officer White testified that the first test he administered was the horizontal gaze nystagmus (HGN) test, during which Defendant continued to emit an odor of alcohol. Officer White did not testify as to the results of the HGN test or give an opinion as to whether Defendant had passed the test. During the one-leg-stand test, Defendant held his foot up for the required thirty seconds and did not hop, but he swayed and lifted his arms from his sides. These two factors were considered "clues" to Officer White in his evaluation of Defendant's driving performance, with two "clues" being a significant number. During the instruction phase of the walk-and-turn test, Officer White had to explain the turn four times before Defendant said he understood. Defendant missed touching heel and toe on three of the first nine steps. After the first nine steps, Defendant again asked for an explanation of the turn. Upon being told to do it as it had been previously described by Officer White, however, Defendant performed the turn correctly. Defendant held his arms away from his body during the entire test. Officer White recorded five of eight possible "clues" during the walk-and-turn test.

{5} Officer White placed Defendant under arrest and transported him to a police substation. After the required twenty-minute observation period, Officer White administered two breath tests on an Intoxilyzer 5000 machine. The first test indicated a BAC of .07. The second test, three minutes later, indicated a BAC of .08.

{6} Defendant was charged under Section 66-8-102. The complaint did not distinguish between Section 66-8-102(A), the "impaired to the slightest degree" part of the statute, and Section 66-8-102(C), the "per se" part of the statute. The latter subsection makes it unlawful to drive with a BAC of .08 or more, whether or not impaired driving has been shown. The metropolitan court judge convicted Defendant under Section 66-8-102(A), stating, "I believe that given the State's evidence, ... Defendant was impaired to the slightest degree, given the driving, the field sobriety test, and the breath score combined together." The district court affirmed Defendant's conviction on appeal.

ADMISSION OF BAC RESULTS

{7} Defendant challenges the admission of the BAC results under Rule 11-401 and Rule 11-403. We review a trial court's evidentiary ruling under an abuse of discretion standard. State v. Martinez, 2007-NMSC-025, ¶ 7, 141 N.M. 713, 160 P.3d 894.

{8} At trial in the metropolitan court, Defendant moved to exclude the breath card from the Intoxilyzer 5000 machine that showed Defendant's BAC results of .07 and .08, arguing that no evidence had been presented extrapolating the BAC results back to the time of driving, as required by this Court's then-recent decision in State v. Day, 2006-NMCA-124, 140 N.M. 544, 144 P.3d 103, rev'd, 2008-NMSC-007, 143 N.M. 359, 176 P.3d 1091. Defendant's BAC was tested approximately forty-seven minutes after the stop. Defendant argued that in the absence of extrapolation evidence, the breath card was not relevant and was more prejudicial than probative.

{9} In Day, the defendant was convicted of per se DWI under Section 66-8-102(C). Approximately one hour and six minutes after the defendant's arrest, his BAC was .08, thus raising the question of whether it had been .08 at the time of driving. Day, 2006-NMCA-124, ¶ 2, 140 N.M. 544, 144 P.3d 103. We held, and our Supreme Court agreed (although reversing the result, 2008-NMSC-007, ¶ 26, 143 N.M. 359, 176 P.3d 1091), that in a per se DWI case, the state must prove the BAC at the time of driving through scientific retrograde extrapolation evidence. Day, 2006-NMCA-124, ¶¶ 26-28, 140 N.M. 544, 144 P.3d 103. We note that subsequent statutory amendment provides that it is unlawful to drive with a BAC of .08 or higher as measured "within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle." Section 66-8-102(C)(1).

{10} Rule 11-402 NMRA declares relevant evidence to be admissible. Rule 11-401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable." Rule 11-403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Defendant argues in this appeal that his BAC results were not a relevant consideration to his impairment under Section 66-8-102(A). He further argues that the admission of the evidence was highly prejudicial because the metropolitan court judge relied on the results in her guilty verdict. We do not agree.

{11} We first note the limited applicability of Day to this case. Day was a per se case under Section 66-8-102(C). The BAC results were essential to the case. See Day, 2006-NMCA-124, ¶¶ 28-29, 140 N.M. 544, 144 P.3d 103. Although the time of driving is also relevant under the language of Section 66-8-102(A), only impairment, not any particular BAC, need be shown. In this case, the metropolitan court found that the State did not prove a per se case apparently because of the absence of relation back evidence.

{12} However, to prove a Section 66-8-102(A) violation, the State needed to prove that Defendant "was less able to the slightest degree" to drive "as a result of drinking liquor." Sanchez, 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d 446 (internal quotation marks and citation omitted). The BAC results are evidence that Defendant had alcohol in his system and, regardless of the numerical BAC, tended to show that Defendant's poor driving, as stated in the testimony, was "a result of drinking liquor." Cf. State v. Montoya, 2005-NMCA-078, ¶ 21, 137 N.M. 713, 114 P.3d 393 (stating that evidence of alcohol in the defendant's system four hours after an accident was relevant evidence in a vehicular homicide case). The BAC results were relevant evidence.

{13} Defendant argues that the BAC results were so prejudicial as to require the metropolitan court to exclude them under the balancing test of Rule 11-403 and that the judge improperly used the BAC results in her conclusion that Defendant was impaired to the slightest degree. We disagree. The balancing test of Rule 11-403 is designed to enable a trial judge to act as a gatekeeper to insulate the jury from prejudice and confusion. There was no jury in this case. Moreover, when admissibility of evidence is challenged at a bench trial, we generally "presume that a judge is able to properly weigh the evidence, and thus the erroneous admission of evidence in a bench trial is harmless unless it appears that the judge must have relied upon the improper evidence in rendering a decision." State v. Hernandez, 1999-NMCA-105, ¶ 22, 127 N.M. 769, 987 P.2d 1156.

{14} The metropolitan court judge considered all of the evidence combined together, including the BAC...