State v. Smith, 34,139

Background

At ~2:30 a.m. on June 30, 2012, officers stopped Dominique D. Smith for driving without headlights; Smith produced an ID (not a license) and admitted drinking one 12‑oz beer 45–60 minutes earlier.
Officers observed bloodshot/watery eyes and a strong/alcohol odor; DWI unit officer Gomez administered HGN, walk‑and‑turn, and one‑leg stand tests that showed multiple impairment clues.
Smith was arrested and gave two breath tests registering .06 and .07. Two lapel videos exist: Gomez’s was produced at trial; McDonnell’s was not tagged into evidence and was not preserved for trial.
At trial Gomez, based on his experience, testified that the BAT results did not correlate with Smith’s claim of drinking only one beer; defense objected to that opinion testimony as lacking proper foundation.
Jury convicted Smith of DWI (impaired to slightest degree), open container, no headlights, and no valid license; district court reversed only the open container conviction but affirmed DWI; Smith appealed the DWI conviction to the Court of Appeals.
The Court of Appeals reversed the DWI conviction, holding Gomez’s opinion testimony about the inconsistency between the BATs/one beer lacked the scientific foundation required for expert opinion and was not harmless error; remanded for retrial on DWI.

Issues

Issue	State's Argument	Smith's Argument	Held
Admissibility of officer opinion that BATs (.06/.07) were inconsistent with drinking one beer	Officer’s training/experience permitted opinion that one beer did not match FST/BAT results; any error harmless	Officer lacked scientific foundation to opine linking number of drinks/BAT or FST performance; testimony was inadmissible and prejudicial	Admission was erroneous under Rule 11‑702; no adequate foundation shown; error not harmless — conviction reversed and remanded for retrial
Prosecutorial misconduct / cumulative error	Any alleged misconduct did not affect verdict; issues insufficient to overturn	Prosecutor elicited improper opinion and other misconduct amounted to cumulative error denying fair trial	Court found the opinion evidence to be reversible evidentiary error; did not reach other misconduct arguments (opinion error dispositive)
Sufficiency of evidence for DWI (impaired to slightest degree)	Evidence (driving without headlights, odor, red eyes, FST clues, BATs) sufficiently proved impairment	Evidence insufficient to prove impairment beyond reasonable doubt	Viewing evidence in light most favorable to verdict, evidence was sufficient to support DWI conviction (but reversal required on evidentiary error)
Denial of missing‑evidence jury instruction for McDonnell lapel video	McDonnell was not required to tag his video; loss inadvertent; defendant not prejudiced; instruction not warranted	Failure to preserve video was bad faith or at least material and prejudicial; jury should be permitted an adverse inference instruction	Trial court did not abuse discretion: no showing of bad faith, materiality speculative, defendant had opportunity to cross‑examine; denial proper

Key Cases Cited

State v. Armijo, 316 P.3d 902 (NM Ct. App. 2014) (admission of officer opinion that BATs inconsistent with one beer required proper foundation; similar error found reversible)
State v. Torres, 976 P.2d 20 (N.M. 1999) (expert scientific testimony must be shown reliable before admission)
State v. Martinez, 160 P.3d 894 (N.M. 2007) (abuse of discretion standard for evidentiary rulings)
State v. Chouinard, 634 P.2d 680 (N.M. 1981) (test for sanction/remedy when the State fails to preserve evidence)
State v. Silago, 119 P.3d 181 (N.M. Ct. App. 2005) (use and purpose of retrograde extrapolation in DWI cases)
State v. Montoya, 345 P.3d 1056 (N.M. 2015) (standard for sufficiency of evidence review)
State v. Rojo, 971 P.2d 829 (N.M. 1998) (disregard evidence supporting a different result on review)
State v. Vargas, 389 P.3d 1080 (N.M. Ct. App. 2017) (examples of sufficient evidence to support DWI impaired to slightest degree)
State v. Harper, 266 P.3d 25 (N.M. 2011) (sanctions for discovery violations assessed by culpability vs. prejudice)
State v. Branch, 387 P.3d 250 (N.M. Ct. App. 2016) (materiality requirement for lost evidence claims)