State v. Scussel

• Decision Date: 02 February 1994
• Docket Number: No. 13727,13727
• Citation: 1994 NMCA 18,871 P.2d 5,117 N.M. 241
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Robert SCUSSEL, Defendant-Appellant.

Page 5

871 P.2d 5

117 N.M. 241

STATE of New Mexico, Plaintiff-Appellee, v. Robert SCUSSEL, Defendant-Appellant.

No. 13727.

Court of Appeals of New Mexico.

Feb. 2, 1994.

Certiorari Denied March 11, 1994.

[117 N.M. 242] Tom Udall, Atty. Gen. and Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender and Christopher Bulman, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

CHAVEZ, Judge.

Defendant-Appellant's motion for rehearing is denied. The opinion filed December 22, 1993, is hereby withdrawn, and this opinion is substituted in its place. Defendant was arrested and charged with driving while intoxicated (DWI). Following a bench trial in Bernalillo County Metropolitan Court, Defendant was found guilty of DWI. Defendant appealed his conviction to district court and after a de novo bench trial was found guilty of DWI. Defendant appeals the district court's order. The issues on appeal are: (1) whether the trial court erred in failing to consider whether Defendant's blood alcohol content was .10% at the time of driving; (2) whether the evidence was sufficient to show that Defendant's blood alcohol content was .10% at the time of driving; and (3) whether Defendant was denied effective assistance of counsel. Unpersuaded by Defendant's arguments, we affirm the order of the district court.

FACTS

At approximately 1:30 a.m. on November 15, 1990, the arresting officer saw Defendant make an illegal U-turn. The officer stopped Defendant and asked for identification and vehicle information. At that time, the officer noticed a strong odor of alcohol on Defendant's breath. He also noticed that Defendant's speech was slurred and his eyes were watery and bloodshot. Defendant told the officer that he had been helping a friend move to Amarillo and after a long day of driving and moving he had stopped at a local bar and consumed two beers just prior to the bar's closing. Defendant had rapidly swallowed one-half to three-quarters of the last beer just minutes before he was stopped by the officer.

The officer administered three field sobriety tests for a determination of intoxication. Defendant displayed balance and coordination problems during the tests. Defendant testified that his lack of coordination was due to back surgery which caused him to suffer physical limitations. Thirty-nine minutes after the stop, Defendant was given a breath alcohol test (BAT) which registered a blood alcohol content (BAC) of .10%. According to Defendant's statement, after the first BAT was taken, the officer requested that he take a second BAT. Defendant refused to take a second test. The officer told Defendant that a second test would possibly give a lower reading for BAC. Defendant again refused to take a second test. Defendant claims that he requested a blood test be taken, but the officer recalled no such request.

At trial below, Defendant argued that he was not "impaired" under subsection A of the DWI statute, and that the State had not proved that his BAC was .10% "at the time of driving" as required by subsection C of the statute. See NMSA 1978, Sec. 66-8-102(A) & (C) (Cum.Supp.1993) (effective until January 1, 1994). The district court heard arguments pertaining to both subsections, but found Defendant guilty of DWI with no reference to a particular subsection of the statute. A later attempt to clarify the order failed because the district court no longer had jurisdiction over the case.

DISCUSSION

In this case, it is not apparent which subsection of the statute was the basis for Defendant's conviction. Although the district court judge discussed the subsections with trial counsel during the trial, the actual wording of the order is that Defendant was guilty of "driving while intoxicated". Even though the district court judge may have verbally indicated that the conviction would fall under subsection C, such verbal comments may not be used as the basis for reversal. See Ledbetter v. Webb, 103 N.M. 597, 604, 711 P.2d 874, 881 (1985) (remarks of trial court cannot be used as basis for error on appeal); State v. Page, 100 N.M. 788, 793, 676 P.2d 1353, 1358 (Ct.App.1984) (trial court's oral ruling not legally effective).

Therefore, we proceed under the assumption that Defendant's conviction was based on both subsections. See State v. Watkins, 104 N.M. 561, 563, 724 P.2d 769, 771 (Ct.App.), cert. denied, 104 N.M. 632, 725 P.2d 832 (1986) (state need not specify which subsections violated).

SUBSECTION A

Defendant argued below that there was insufficient evidence to show that he was driving his vehicle under the influence of intoxicating liquor as required by subsection A. See NMSA 1978, Sec. 66-8-102(A). "Under the influence" means that " 'to the slightest degree defendant was less able, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle an automobile with safety to himself and the public.' " State v. Myers, 88 N.M. 16, 19, 536 P.2d 280, 283 (Ct.App.1975) (quoting State v. Dutchover, 85 N.M. 72, 73, 509 P.2d 264, 265 (Ct.App.1973)). It is not necessary that the vehicle be in motion, but only that Defendant exercise control over the vehicle. See State v. Harrison, 115 N.M. 73, 846 P.2d 1082 (Ct.App.), cert. denied, 114 N.M. 720, 845 P.2d 814 (1993); Boone v. State, 105 N.M. 223, 226, 731 P.2d 366, 369 (1986).

The evidence showed: Defendant's breath smelled strongly of alcohol; his eyes were bloodshot and watery; and his speech was slurred; he admitted having recently consumed alcohol; he failed three field sobriety tests; he tested at .10% for BAC; and in the officer's opinion, Defendant was intoxicated. This evidence is sufficient to support Defendant's conviction under subsection A. Haas v. State, 567 So.2d 966 (Fla.Dist.Ct.App.1990). Defendant's argument that he failed the field sobriety tests due to impairment from back problems goes to the weight and effect placed on that evidence by the district court judge. See State v. Vialpando, 93 N.M. 289, 292, 599 P.2d 1086, 1089 (Ct.App.), cert. denied, 93 N.M. 172, 598 P.2d 215 (1979).

Moreover, the evidence of intoxication was obtained immediately or very soon after Defendant was stopped. "[A] material fact necessary to support a verdict may be proved by inferences." State v. Higgins, 107 N.M. 617, 621, 762 P.2d 904, 908 (Ct.App.1988). Because the evidence was obtained thirty-nine minutes after Defendant was stopped, a factfinder could infer that Defendant was under the influence of alcohol at the time he was in control of the vehicle.

SUBSECTION C

Defendant argues that the State failed to produce evidence by which a trier of fact could find that his BAC was .10% at the time that he was driving his vehicle. With respect to a conviction under subsection C, the evidence showed that Defendant waived this argument. Defendant's statement and the officer's testimony showed that when the officer proposed to test Defendant's BAC a second time, Defendant refused to take the test. A second BAT reading would have provided the sort of evidence necessary to show a "rising" or "falling" of Defendant's BAC. Because Defendant refused to take a second BAT, the State lost the opportunity to obtain crucial evidence relating to subsection C.

In addition, the State was prepared to call a chemist to testify on the results of the BAT. Although there is nothing in the record to indicate the nature of the chemist's proposed testimony, defense counsel agreed that the chemist's testimony was not necessary so long as the calibration log was produced. Defense counsel stipulated to the calibration log. Also, when asked by the district court whether there were any other objections to the BAT, defense counsel stated that she had no other objections to the BAT. We fail to see how Defendant can now be heard to complain that the State did not present evidence of "rising" or "falling" of the BAT or "relation back" evidence. See State v. Maples, 82 N.M. 36, 39, 474 P.2d 718, 721 (Ct.App.1970) ("Nothing in the record suggests a lack of knowledge or understanding on defendant's part of his rights" at the time that he waived his rights).

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that his trial counsel was ineffective for failing to challenge the accuracy of the BAT based on the fact that Defendant is a smoker. To prevail on such a claim, Defendant must show that his attorney's performance fell below that of a reasonably competent attorney and that he suffered prejudice as a result of such incompetence. See State v. Hernandez, 115 N.M. 6, 16, 846 P.2d 312, 322 (1993). Defendant, without any facts of record, asks this Court to make a presumption of prejudice to Defendant for failure to challenge the BAT on grounds that Defendant was a smoker. See id.; Duncan v. Kerby, 115 N.M. 344, 346, 851 P.2d 466, 468 (1993). We will not make such a presumption. Where the record on appeal is inadequate to address Defendant's claim properly, he may raise that issue in habeas corpus proceedings. See Duncan, 115 N.M. at 346, 851 P.2d at 468.

Based on the above discussion, we do not consider Defendant's arguments under subsection C. Because we hold that the evidence was sufficient to support a conviction under subsection A, we affirm Defendant's conviction.

ON MOTION FOR REHEARING

After our original opinion was filed on December 22, 1993, Defendant filed a motion for rehearing arguing several points. We have withdrawn that opinion to address the arguments made in Defendant's motion. We do so below. Defendant characterizes our opinion as holding that Defendant...