State v. Willie, No. 26,116.

• Docket Nº: No. 26,116.
• Citation: 2008 NMCA 030, 179 P.3d 1223
• Case Date: December 17, 2007
• Court: Court of Appeals of New Mexico

179 P.3d 1223 2008 NMCA 030 STATE of New Mexico, Plaintiff-Appellee,
v.
Travis WILLIE, Defendant-Appellant. No. 26,116. Court of Appeals of New Mexico. December 17, 2007. Certiorari Granted, No. 30,909, February 28, 2008.

[179 P.3d 1224]

Gary K. King, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

FRY, Judge.

{1} Defendant Travis Willie appeals his conviction for driving while intoxicated (DWI). Defendant argues that the State failed to lay the requisite foundation for the district court's admission of the breath alcohol test (BAT) results. Defendant bases this argument on a regulation of the State Laboratory Division (SLD), which requires the officer administering the breath test to collect a subject's breath for testing only after "ascertain[ing] that the subject has not had anything to eat, drink or smoke for at least 20 minutes prior to collection of the first breath sample." 7 NMAC 33.2.12(B)(1) (2001). Defendant contends that this regulation requires the officer to affirmatively ascertain this information, presumably by looking in Defendant's mouth or by asking Defendant if he has anything in his mouth at the beginning of the twenty-minute deprivation period. We agree with Defendant and hold that the State failed to lay a sufficient foundation for the admission of the BAT results. We reverse Defendant's conviction.

BACKGROUND

{2} In the early morning of February 26, 2005, New Mexico State Police Officer Albert Franch observed that Defendant failed to stop at a stop sign and entered an intersection, where he almost collided with the officer. Based on this erratic driving, Officer Franch initiated a traffic stop of the vehicle Defendant was driving. Officer Franch noted indicia of intoxication, and when Defendant performed poorly on field sobriety tests, Officer Franch placed Defendant under arrest for DWI. Officer Franch arrested Defendant at 1:39 a.m., handcuffed Defendant's hands behind his back, and seated Defendant in the back of the officer's car. With Defendant handcuffed in the car, Officer Franch waited for someone to come and pick up Defendant's wife and vehicle. The officer then drove with Defendant handcuffed in the back of the car to the San Juan County Jail. Although the officer did not continuously observe Defendant while the officer was driving, there is no dispute that it took about twenty minutes for him to drive to the jail. After they arrived at the detention center, Officer Franch and Defendant were "pretty much face to face" in a small room where the BAT is taken. Officer Franch was confident that Defendant did not eat, drink, or smoke either while he was in the patrol car or at the detention center, but the officer did not look into Defendant's mouth at the time he handcuffed him. Defendant's first breath test occurred at 2:35 a.m.

{3} Defendant was originally convicted in magistrate court of DWI, failure to yield, and improper turning at an intersection. Defendant appealed de novo to the district court, which convicted Defendant of the same offenses and remanded the case to magistrate court to re-sentence Defendant. Defendant now appeals his convictions to this Court. In his brief, Defendant challenges only his conviction for DWI. See State v. Gee, 2004-NMCA-042, ¶ 25, 135 N.M. 408, 89 P.3d 80 (explaining that issues not briefed are deemed abandoned).

DISCUSSION

{4} In New Mexico, it is illegal for "a person who has an alcohol concentration of eight one hundredths or more in his blood or

179 P.3d 1225

breath to drive a vehicle." NMSA 1978, § 66-8-102(C)(1) (2005) (amended 2007). The State most often proves a violation of Section 66-8-102(C)(1) by admission of a test measuring breath alcohol concentration (BAC). Breath testing must be done in compliance with the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2007), and regulations promulgated by the SLD. See § 66-8-107. In this case, Defendant contends that the State failed to comply with 7 NMAC 33.2.12(B)(1) (2001), which provides that

[b]reath shall be collected only after the Operator or Key Operator [in this case, Officer Franch] has ascertained that the subject has not had anything to eat, drink or smoke for at least 20 minutes prior to collection of the first breath sample. If during this time the subject eats, drinks or smokes anything, another 20 minute[] deprivation period must be initiated.

Defendant appears to argue two bases for his contention that the State failed to establish compliance with this regulation: (1) because Officer Franch did not have his eyes on Defendant for the entire twenty-minute observation period, and (2) because Officer Franch did not "ascertain[] that the subject ha[d] not had anything to eat, drink or smoke" for the twenty-minute period.

{5} "We review an alleged error in the admission of evidence for an abuse of discretion." State v. Martinez, 2007-NMSC-025, ¶ 7, 141 N.M. 713, 160 P.3d 894. Upon objection, admission of evidence when foundational requirements have not been established constitutes an abuse of discretion. State v. Gardner, 1998-NMCA-160, ¶ 5, 126 N.M. 125, 967 P.2d 465. Interpretation of regulations is subject to de novo review. State v. Collins, 2005-NMCA-044, ¶ 23, 137 N.M. 353, 110 P.3d 1090 ("We review the provision [of the Administrative Code] de novo, as we would a statute."). We address each of Defendant's contentions in turn.

Continuous Observation

{6} Defendant's first contention — that Officer Franch should have continuously observed Defendant during the entire twenty-minute deprivation period—is answered by State v. Rivera, 1997-NMCA-102, ¶¶ 4-5, 124 N.M. 211, 947 P.2d 168. In that case, the defendant claimed there was insufficient evidence to support his DWI conviction because the State failed to establish that the arresting officer continuously observed the defendant for the twenty-minute period required by the regulation. Id. ¶ 4. We rejected this argument because there was testimony that the officer sat in the police car with the defendant while the officer transported the defendant to the detention center. Id. ¶ 5. This satisfied the purpose of the observation period, which is to ensure that the defendant did not do anything to compromise the breath test. Id.; see also Gardner, 1998-NMCA-160, ¶¶ 16-17, 126 N.M. 125, 967 P.2d 465 (discussing the holding in Rivera).

{7} There is similar testimony in the present case. Officer Franch testified that Defendant could not put anything in his mouth after he was handcuffed. Officer Franch was with Defendant for at least twenty minutes prior to the breath test because he was with Defendant in the police car for the twenty-minute ride to the jail and then at the detention center where the breath test was administered. Thus, as in Rivera, the officer ensured that, at least during the twenty minutes prior to the first breath test, Defendant did nothing to compromise the test. This constitutes compliance with the aspect of the regulation that appears to require observation of a subject for at least twenty minutes prior to the first breath test in order to establish that the subject is deprived of anything to eat, drink, or smoke during that time period. See Gardner, 1998-NMCA-160, ¶¶ 17-18, 126 N.M. 125, 967 P.2d 465 (discussing with approval the holding in Rivera that...