State v. Ruiz, 15832

Citation903 P.2d 845,1995 NMCA 98,120 N.M. 534
Decision Date18 August 1995
Docket NumberNo. 15832,15832
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Eric RUIZ, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

BLACK, Judge.

Defendant appeals his convictions for careless driving and driving while intoxicated. Defendant maintains that, in admitting the calibration log and printout of the Intoxilyzer 5000, the district court admitted impermissible hearsay, which in turn violated Defendant's constitutional right to confront his accusers. Based on our recent decision in State v. Christian, 119 N.M. 776, 895 P.2d 676 (Ct.App.), cert. denied, 119 N.M. 514, 892 P.2d 961 (1995), we disagree.

Defendant also argues that the district court erred in: (1) denying Defendant's motion to suppress evidence based on an illegal arrest, (2) failing to require the State to extrapolate the results of Defendant's breath test backward to the time of his arrest, (3) asking questions to establish the foundation for the breath tests, and (4) finding sufficient evidence to convict Defendant. Finding no error, we affirm.

I. FACTS

Officer Byers testified that he was stopped at a traffic light on Louisiana Boulevard in Albuquerque when he saw a car approaching from behind. The car was weaving into another lane and the median. Officer Byers testified that he was afraid the car would hit him because it was moving too fast to stop at the light. When the light changed, Officer Byers engaged his emergency equipment and attempted to pull the car over to the curb. He followed the car for approximately four blocks before it finally pulled over and stopped. During this pursuit, the car continued to weave. When Officer Byers approached the driver, he noticed that the driver had watery, bloodshot eyes, smelled of alcohol, and had slurred speech. When Officer Byers asked the driver if he had been drinking, the driver responded affirmatively. Officer Byers called a member of the Driving While Intoxicated (DWI) Unit to continue the investigation. In court, Officer Byers identified the driver of the car as Eric Ruiz, although he indicated that Ruiz had given him a false name at the scene.

The DWI Unit officer, Officer Martinez, testified that, when he arrived at the scene, he also smelled "the odor of alcohol on [Ruiz's] breath" and noticed that Ruiz had bloodshot, watery eyes. Officer Martinez administered field sobriety tests that produced mixed results. Officer Martinez then transported Defendant to the Breath Alcohol Testing Unit. Approximately fifty minutes after he was first stopped, Defendant was given a breath test on an Intoxilyzer 5000 machine.

At trial, Officer Martinez testified that he was certified to administer a blood-alcohol test using the Intoxilyzer 5000 and described the procedure used in administering the test. Officer Martinez further testified that, on the night in question, the Intoxilyzer 5000 appeared to be working properly and he followed the proper procedure in administering the test to Defendant.

After a defense objection that Officer Martinez was not qualified to testify that the machine was properly calibrated, the State called Mr. Walton, a forensic scientist employed by the Albuquerque Police Department (APD) Criminalistics Section. Mr. Walton testified that, in addition to holding a master's degree in biology, he had been tested and certified by the Scientific Laboratory Division of the New Mexico Department of Health (SLD) as both a key operator and an instructor on the Intoxilyzer 5000. One of his duties, along with the other APD scientists, was to check and calibrate the APD's Intoxilyzer 5000 machines on a weekly basis. Mr. Walton further testified that the calibration immediately prior to Defendant's arrest had been performed by another APD scientist, Mr. Atencio, whom Mr. Walton had trained. Based on the testimony of Officer Martinez and Mr. Walton, and over defense counsel's objections, the district court admitted the Intoxilyzer 5000 breath-alcohol printout and calibration log into evidence. The printout indicated that Defendant had a blood-alcohol content of 0.15% at the time of the test.

II. STANDARD OF REVIEW

The admissibility of an extrajudicial statement as an exception to the hearsay rule, SCRA 1986, 11-802 (Repl.1994), is reviewed for abuse of discretion. State v. Johnson, 99 N.M. 682, 687, 662 P.2d 1349, 1354 (1983). The hearsay rule is, however, not coextensive with the Confrontation Clauses of the New Mexico and United States Constitutions, U.S. Const. amend. VI; N.M. Const. art. II, § 14. Thus, this Court should review Confrontation Clause problems separate from the question of admissibility under hearsay rules. State v. Martinez, 99 N.M. 48, 51, 653 P.2d 879, 882 (Ct.App.), cert. denied, 99 N.M. 47, 653 P.2d 878 (1982). The question of whether out-of-court statements are admissible under the Confrontation Clause is a question of law, subject to de novo review. State v. Gallegos, 109 N.M. 55, 65-66, 781 P.2d 783, 793-94 (Ct.App.), cert. denied, 108 N.M. 771, 779 P.2d 549 (1989).

III. THE CALIBRATION LOGS WERE ADMISSIBLE AS BUSINESS RECORDS

Defendant argues that the calibration logs, and consequently the printout from the Intoxilyzer 5000, should have been excluded as inadmissible hearsay. The State maintains that such logs come within the business records exception to the hearsay rule, SCRA 1986, 11-803(F) (Repl.1994). We agree with the State.

Mr. Walton testified that the SLD had jurisdiction over APD's Criminalistics Laboratory (Laboratory), and that SLD therefore certified the Laboratory's instruments and personnel, and provided "proficiency samples" for the calibration of the machines. Every week, the APD scientists run the SLD samples through the Laboratory's instruments and return the samples for a determination of how the instruments are operating. Mr. Walton also testified that the Laboratory calibrates the Intoxilyzer 5000 machines "in accordance with SLD regulations." He testified that SLD requires the Laboratory to maintain a logbook of the weekly calibration check results and that the Laboratory maintains such a logbook in the ordinary course of business.

We recently confronted the identical argument under similar circumstances in State v. Christian, 119 N.M. 776, 895 P.2d 676 (Ct.App.), cert. denied, 119 N.M. 514, 892 P.2d 961 (1995). In Christian, we pointed out that the business records exception to the prohibition against hearsay is "premised upon routine, trusted patterns of record generation and the confidence engendered by showing that a particular record is created and maintained in conformity with that routine." Id. at 779, 895 P.2d at 679. We also noted that "these [blood-alcohol] reports share many of the characteristics noted in the federal Advisory Committee Note [for Federal Rule of Evidence 803] of systematic checking, regularity, continuity, habits of precision, actual experience of reliance, and a duty of accuracy." Id. at 780, 895 P.2d at 680. We concluded that the blood-alcohol reports in that case, which were also prepared by SLD-trained operators, were sufficiently reliable to fall within the criteria of the business records exception. Id. at 780-81, 895 P.2d at 680-81. Other appellate courts, consistent with Christian, have held that periodic breathalyzer calibration reports fall within the local version of the business or public records exceptions to the hearsay rule. See, e.g., Best v. State, 328 A.2d 141, 143 (Del.1974); People v. Black, 84 Ill.App.3d 1050, 40 Ill.Dec. 322, 324-25, 406 N.E.2d 23 24-25 (1980); Brouillette v. State, Dep't of Public Safety, 589 So.2d 529, 533 (La.Ct.App.1991); State v. Mendieta, 20 Ohio App.3d 18, 484 N.E.2d 180, 182-83 (1984); Brown v. State, 584 P.2d 231, 233 (Okla.Crim.App.1978).

Nevertheless, Defendant contends: "While Christian may establish that a 'scientific report' is not always inadmissible in a criminal trial, Mr. Ruiz respectfully submits that Christian should not be read to suggest that such reports are always admissible." We agree that Christian should not be construed so broadly. Nor do we necessarily disagree with Defendant's assertion that a "very real risk of unreliability arises when 'public' records are prepared in an adversary setting in preparation for litigation." Whatever the general validity of this assertion, however, we are not persuaded that it is relevant in the present context.

Initially, we note that the SLD has a wide variety of scientific devices that are routinely checked and maintained, and that the scientists calibrating these devices do not report on the results with an eye toward litigation. Moreover, proper calibration of a breath-alcohol machine is as likely to result in a suspect being exonerated as incriminated. Suspects who test below a standard level on a properly calibrated machine are not routinely charged with driving while intoxicated. Thus, a calibration log cannot be said to be "prepared in an adversary setting in preparation for litigation." In State v. Huggins, 659 P.2d 613 (Alaska Ct.App.1982), the Alaska Court of Appeals enunciated a similar rationale in upholding the admission of certification and calibration records of a breathalyzer:

The factual findings included in the records that comprise the breathalyzer packet are compiled in the regular course of business by government officials in advance of any specific case in which the breathalyzer tested will be used. An official would have no motive to misrepresent those facts because the nexus between his findings and a particular result on a particular prosecution is too attenuated. Since the person certifying the machine has no knowledge of a specific case, he has...

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