State v. BaldwinState v. Baldwin
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- Before:
- Bosson
{1} The opinion heretofore filed in this case is withdrawn and the following substituted therefor.
{2} This appeal examines the evidence required to sustain a conviction under the so-called per se section of the driving while under the influence (DWI) statute,
BACKGROUND
{3} At about 12:30 a.m., New Mexico State Police Officer T.E. Christian observed Defendant driving his vehicle across the median on 1-40 near Moriarity onto the interstate heading in the opposite direction. The officer stopped Defendant’s car because, in his opinion, it was illegal to turn in a median.
{4} Other than the illegal turn, the officer did not observe Defendant driving erratically or in an unsafe manner. Defendant stopped his vehicle promptly upon seeing the officer’s signal. At that point, the officer did not suspect Defendant of DWI. Upon conversing with Defendant, the officer detected a moderate odor of beer on his breath. His speech was normal. According to the officer’s testimony, Defendant admitted that during the past hour he had drunk a “few” beers or a “couple” of beers at a nearby bar in Moriarity. The officer then required Defendant to perform three field sobriety tests: the finger counting test, the counting backward test, and the horizontal gaze nystagmus (HGN) test which, according to the officer, Defendant failed. The officer then administered a breath alcohol test to Defendant. Defendant was charged with two DWI counts, under
{5} At trial, the State first attempted to introduce the results of the breath alcohol test, but the State was unable to provide an adequate foundation for the accuracy of the test machine, and the court sustained Defendant’s objection. Those test results are not part of this record. Over Defendant’s objeetion, the State was then allowed to introduce the results of the blood alcohol test. At the conclusion of the State’s case, Defendant moved for a directed verdict based on the insufficiency of the evidence. The court granted Defendant’s motion for a directed verdict with respect to the DWI charge under
{6} Defendant raises three issues on appeal: (1) whether the trial court erred in denying Defendant’s motion for a directed verdict and post-trial motion directed to the DWI charge under
DISCUSSION
Defendant’s conviction underSection 66-8-102 (0 was not supported by substantial evidence.
{7} A conviction under
{8} Timing is an essential element of the crime. The State must prove a nexus between a BAC of 0.08 or more and the time “defendant operated a motor vehicle.” Id.; see also Biemer v. State ex rel. Taxation & Revenue Dep’t, 113 N.M. 696, 698, 831 P.2d 995, 997 (Ct.App.1992) (distinguishing a DWI chargе from a driver’s license revocation proceeding in which the state does not have to prove a nexus between an excessive BAC and the time of driving). Timing is also an essential element for a conviction under
{9} This is not our first occasion to address the “relation back” issue. In State v. Cavanaugh, 116 N.M. 826, 829-30, 867 P.2d 1208, 1211-12 (Ct.App.1993), we rejected a similar argument based on facts and circumstances specific to that case. There, we affirmed a DWI conviction under
{10} Significantly, the court in Cavanaugh noted that the BAC of 0.13 was “combined with the evidence of [defendant’s behavior before, at, and after the time of driving” to sustain the conviction. Id. After being detected with liquor on his breath, Cavanaugh fled the scene leading the police on a high speed chase. Id. at 829, 867 P.2d at 1211. Cavanaugh violently resisted arrest even afier his cаpture. Id. We held that those two kinds of evidence — a BAC sufficiently over the legal limit combined with egregious, incriminating behavior — met a threshold level of substantial evidence, and the jury was allowed to infer without direct evidence that Cavanaugh’s BAC was likely over the legal limit at the time of driving. Id. at 830, 867 P.2d at 1212.
{11} The specific facts on which we relied in Cavanaugh demonstrate just how different the case is before us. Here, in contrast to Cavanaugh, we have no BAC “sufficiently over the limit.” After the passage of over two hours, Defendant’s BAC was exactly at 0.08 and no more. Even the State’s expert acknowledged that a certain margin of error in the test results must be taken into account. 1 Based on the observations of the arresting officer, Defendant’s contemporaneous behavior appears unremarkable when compared to Cavanaugh. Cf. id. (noting Cavanaugh’s egregious behavior “before, at, and after” the time of driving).
{12} Like Cavanaugh, Defendant had trouble with field sobriety tests. When requested to count backward from ten to one, Defendant continued to zero instead of stopping at one. When he was asked to count his fingers, Defendant omitted his pinky finger; then after re-instruction he counted correctly and then incorrectly. When given the HGN test, Defendant was unable to keep his head still despite instructions tо do so. In regard to all three tests, the officer testified that Defendant’s inability to follow instructions meant that he had failed each test. The officer concluded that the results of these field sobriety tests, coupled with evidence of drinking, suggested that Defendant was under the influence of alcohol. The officer offered no testimony as to whether the field sobriety tests could be used to corroborate Defendant’s 0.08 BAC reading and relate it to the time of driving.
{14} We need not decide today whether, and under what circumstances, field sobriety tests results could be used to draw a nexus between a delayed BAC test result and the likely BAC at the time of driving. Today, we need only observe that no witness testified in this case as to any such nexus, and there was no other evidence on point. Therefore, we conclude under these facts that the field sobriety tests did not tend to make the alleged fact any more or less probable that Defendant had a BAC at or greater than 0.08 at the time he drove his car. See
{15} Without evidentiary support for a reasonable jury inference of the kind described in Cavanaugh, the jury was left to speculate about what the BAC might or might not have been at the time Defendant drove his vehicle. Without evidentiary guidance, no jury of lay persons can know, beyond a reasonable doubt, whether a 0.08 BAC test result would equate to a BAC reading at the time of driving of 0.08, 0.12, 0.04, or anything in between.
{16} Jurors share common human experience, and they are entitled to draw upon that experience to make reasonable inferences at trial. See State v. Mann, 2000-NMCA-088, ¶ 91, 129 N.M. 600, 11 P.3d 564 (stating that jurors are expected to rely upon them life experiences and background during deliberations); Duke City Lumber Co. v. N.M. Envtl. Imp. Bd., 95 N.M. 401, 405, 622 P.2d 709, 713 (Ct.App.1980) (stating that jurors may draw inferences from the trial evidence). Most jurors have some understanding of human behavior during a state of intoxication. For examplе, if an accused is observed falling down drunk, experience tells us that for most people such a condition likely arose over a period of time and not all of a sudden. Similarly, human experience guides us in deciding whether such an accused likely had the ability to drive an automobile in a prudent manner within a reasonable time before or after his behavior is observed in a state of intoxication. See Sanchez v. Wiley, 1997-NMCA-105, ¶ 19, 124 N.M. 47, 946 P.2d 650 (tеenager competent to offer lay opinion about whether defendant driving under the influence of alcohol).
{17} But a BAC reading from a laboratory test is just a sterile number; by itself it tells us nothing about a driver’s condition hours earlier. Extrapolating backward in time can be a difficult task even for experts. See People v. Victory, 166 Misc.2d 549, 631 N.Y.S.2d 805, 811 (Crim.Ct.1995) (“ ‘[T]he longer the delay between the time of [the] incident and [the] sample collection, the more diffiсult it becomes, scientifically, to draw reasonable inferences from one ‘data point,’ back to the ‘driving’ time.’” (Quoting E. Fitzgerald & D. Hume, Intoxication Test Evidence: Criminal and Civil § 2:30 [Lawyers Co-op 1987 & 1994 Supp.].)). For a lay jury, unassisted by corroborating evidence, the assignment becomes mere camouflage for guesswork.
{18} Basing a criminal verdict upon such conjecture ignores the standard of proof— beyond a reasonable doubt — and undеrmines the most basic principles of fairness. See State v. Garcia, 114 N.M. 269, 275, 837 P.2d 862, 868 (1992) (“[E]vidence equally consistent with two inferences does not, without more, provide a basis for adopting either one — especially beyond a reasonable doubt.”); see also State v. Gallow, 185 Ariz. 219, 914 P.2d 1311, 1313 (Ct.App.1995) (holding that when the state’s criminalist could not testify that the defendant’s BAC at the time of driving exceeded statutory limit beyond a reasonable doubt, the jury was not
{19} We offer one critical observation. As a matter оf sound public policy, our legislature could choose to create a statutory inference that a 0.08 BAC within a specified time, say two or three hours after driving, is prima facie evidence of a per se violation of
{20} State courts vary considerably in them approach to how per se violations of drinking and driving laws are proven. Only a few demand scientific relation-back evidence in all situations. Some courts uphold convictions based solely on subsequent BAC readings because, as previously mentioned, them statutes specifically authorize a relation-back inference if thе BAC reading is taken within two or three hours after driving. See, e.g., State v. Guerra, 191 Ariz. 511, 958 P.2d 452, 456 (Ct.App.1998) (holding that “relation-back evidence was not required in order for the jury to be instructed on the presumption that defendant was under the influence of intoxicating liquor”); State v. Wetzel, 7 Haw.App. 532, 782 P.2d 891, 895 (1989) (same); State v. Ulrich, 17 Ohio App.3d 182, 478 N.E.2d 812, 822 (1984) (same). In those states without a statutory relation-back period, some court opinions require scientific testimony to relate the BAC back to the time of driving, while others do not. Cоmpare Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261, 1267 (1989) (in banc) (“relating the BAC back to the time of arrest will most often require testimony by someone qualified as an expert”), supersession by statute recognized in Guerra, 958 P.2d at 455; State v. Rollins, 141 Vt. 105, 444 A.2d 884, 886-87 (1982) (requiring relation-back evidence) with Haas, 597 So.2d at 774 (not requiring relation-back evidence).
{21} In other jurisdictions, the BAC creates a rebuttable presumption of DWI, with the relation-back question left to the weight, not the admissibility of the evidence, as long as the test is taken within a reasonable period of time. See State v. Kubik, 235 Neb. 612, 456 N.W.2d 487, 501 (1990); State v. Taylor, 132 N.H. 314, 566 A.2d 172, 175-76 (1989). At least one state makes a-BAC, obtained within a reasonable time after the defendant was driving, a conclusive presumption of DWI and expressly prohibits the introduction of relation-back evidence by either the prosecution or defense. See State v. Tischio, 107 N.J. 504, 527 A.2d 388, 397 (1987).
{22} Other states, like New Mexico, allow convictions based on a subsequent BAC, and without scientific relation-back evidence, if the BAC is sufficiently corroborated by additional evidence of aberrant behavior on the part of the accused. See People v. Kappas, 120 Ill.App.3d 123, 76 Ill.Dec. 1, 458 N.E.2d 140, 144 (1983); State v. Ladwig 434 N.W.2d 594, 595 (S.D.1989) (“ ‘[I]t is not necessary for an expert witness to extrapolate for the jury. However, ... evidence necessary to enable the court and/or the jury to extrapolate is required____(Quoting State v. McDonald, 421 N.W.2d 492, 494 n. 2 (S.D. 1988).)).
{23} New Mexico jurisprudence has already started down the path сhosen in Cavanaugh, and we intend to stay the course. New Mexico has indicated that with sufficient, corroborative evidence a jury may reasonably infer that an excessive BAC reading relates back to the time of driving. That evidence is lacking in this ease.
{24} Accordingly, we conclude that the State’s evidence against Defendant was insufficient as a matter of law to sustain a guilty verdict for the per se DWI offense under
Defendant’s conviction for driving on divided highways,
{25}
Whenever any highway has been divided into two roadways by leaving an intervеning space or by a physical barrier or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway and no vehicle shall be driven over, across or within any such dividing space, barrier or section, except through an opening in such physical barrier or dividing section or space or at a crossover or intersection establishеd by public authority.
{26} The State’s evidence established that Officer Christian observed Defendant driving his vehicle across the median separating the easterly and westerly roadways on Interstate 40. The officer further testified that this occurred at a site that was not a duly authorized crossover or intersection. Defendant allegedly confessed to the officer that he “knew he wasn’t supposed to cross the median.”
{27} There was a рathway of some kind at or near where Defendant crossed. The testimony conflicted regarding whether Defendant actually used the pathway or just drove over the grass near the area of the pathway. Defendant argues on appeal that under the literal wording of the statute this pathway constituted an “opening” in the dividing space through which Defendant could legally cross, whether or not it was also a “crossover ... established by public authority.”
{28} We need not address Defendant’s reading of the statute. The jury was instructed, without objection, on the following elements of the offense:
1. The defendant was driving his vehicle on a highway divided into two roadways.
2. The defendant drove his vehicle over, across or within any dividing space, on section dividing the two roadways.
3. When so doing, the defendant did not use a crоssover established by public authority.
4. This happened in Torrance County, State of New Mexico, on or about the 12th day of November, 1997.
{29} The jury instruction becomes the law of the case, and Defendant does not challenge this instruction on appeal. See State v. Riddall, 112 N.M. 78, 84, 811 P.2d 576, 582 (Ct.App.1991). Under this instruction, the State had to prove only that Defendant drove across “any dividing space” and “did not use a crossover established by public authоrity.” Apparently, Defendant never argued for an instruction that would include his interpretation of the statute, and we are not referred to any such request below. Based on the officer’s testimony, there was substantial evidence before the jury to support a conviction for the offense as defined in the jury instruction.
Admission of the HGN test results.
{31} Citing State v. Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20, Defendant сhallenges the admission of evidence pertaining to the HGN test that Officer Christian administered to him at the scene. Defendant questions the foundation for the scientific evidence offered, as well as the officer’s lack of experience, training, and education to testify regarding the reliability of the test. See State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993).
{32} There is no need to discuss Defendant’s objections in this opinion. Insofar as the HGN test results were admittеd to prove DWI under
CONCLUSION
{33} We affirm Defendant’s conviction for violating Section 66-7_IS19, driving on divided highways. We reverse Defendant’s conviction for DWI in violation of
{34} IT IS SO ORDERED.
WE CONCUR: M. CHRISTINA ARMIJO and CYNTHIA A. FRY, Judges.
Notes
. The evidence of Defendant’s blood test administered over two hours after driving, revealing a marginal BAC level, is similar to Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), a case in which the lack of corroborating evidence made a delayed and marginal BAC reading not sufficiently probative to sustain a DWI conviction. In Cavanaugh, we chose not to follow Modaffare because there was so much corroborating evidence against Mr. Cavanaugh. Id. at 829, 867 P.2d at 1211.