STATE OF NEW MEXICO, Plaintiff-Appellee, v. TARRAH HOBBS, Defendant-Appellant.
No. 33,715
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
December 22, 2015
2016-NMCA-022
Certiorari Denied, February 15, 2016, No. S-1-SC-35708
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District Judge
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM
for Appellee
Ben A. Ortega
Albuquerque, NM
for Appellant
New Mexico District Attorneys Association
Robert P. Tedrow
Kari E. Brandenburg, District Attorney
Michelle S. Garcia, Assistant District Attorney
Albuquerque, NM
for Amicus Curiae
OPINION
VANZI, Judge.
{1} The Legislature has delegated to the Scientific Laboratory Division of the Department of Health (SLD) administrative authority over blood and breath tests administered to persons suspected of driving while under the influence of intoxicants. See
BACKGROUND
{2} In the early morning hours of January 14, 2012, Officer Richard Locke of the Albuquerque Police Department (APD) pulled Defendant over for driving 51 miles per hour in a 40 mile-per-hour zone. Defendant appeared to be intoxicated and, pursuant to APD policy, Officer Locke requested a special unit to investigate her for driving under the influence (DUI).
{3} Officer Jared Frazier responded to the scene and administered field sobriety tests, which Defendant failed. Officer Frazier determined that Defendant was impaired and placed her under arrest for DUI. After Defendant agreed to submit to a BAT, Officer Frazier started the required twenty-minute deprivation period.
{4} Officer Frazier was certified by the SLD to administer BATs on the Intoxilyzer 8000 instrument (IR 8000), which he called the “machine,” and he administered Defendant‘s BAT on the IR 8000 located at the prisoner transport center. Officer Frazier testified that he used a clean mouthpiece, explained the procedure to Defendant, and ran a total of five air-blank checks. He testified that air-blank checks flush out the machine and check the ambient air for interference, and that all of the air-blank checks he ran resulted in readings of .00. He also explained the range of allowable results on calibration checks of the IR 8000 and testified that diagnostic and calibration checks were run and passed. Officer Frazier further testified that he saw a copy of the SLD certification affixed to the front of the IR 8000 and that the machine appeared to be functioning normally. The machine collected two breath samples from Defendant.
{5} The State moved to admit Defendant‘s BAT results. At defense counsel‘s request, the trial court deferred ruling on the admission of the BAT results until after cross-examination.
{6} When questioned specifically about the gas canisters used on the machine, Officer Frazier testified that he has nothing to do with their approval, selection, or purchase, and that he did not know the make, model, or serial number of the canister used on the day of Defendant‘s test. About eight months after Defendant‘s BAT, Officer Frazier went to SLD and the APD Crime Lab, where he learned that the gas canisters used on the machine were the same make and model as those listed in the SLD regulations.
{7} At the end of Officer Frazier‘s testimony, defense counsel moved to exclude Defendant‘s BAT results on the ground that they lacked a sufficient foundation to support their admission into evidence. Specifically, defense counsel argued that the gas canister is a piece of equipment separate from the IR 8000, and that Officer Frazier failed to “make the connection that this is a SLD approved piece of equipment” because he did not know the canister‘s serial number, the manufacturer, or its expiration date.
{8} The trial court admitted the BAT results over Defendant‘s objection. Officer Frazier was recalled to the stand and testified that Defendant‘s two BAT results were .11. The trial court found Defendant guilty of DUI under New Mexico‘s “per se” DUI statute, which provides that it is illegal for a person to drive a vehicle with “an alcohol concentration of eight one hundredths [.08] or more in [his or her] blood or breath.” See
DISCUSSION
Standard of Review
{9} “The interpretation of an administrative regulation is a question of law that we review de novo,” applying the same rules we use to interpret statutes. State v. Willie, 2009-NMSC-037, ¶ 9, 146 N.M. 481, 212 P.3d 369. “The principal command of statutory construction is that the court should determine and effectuate the intent of the [L]egislature, using the plain language of the statute as the primary indicator of legislative intent.” Id. (alteration, internal quotation marks, and citation omitted). If the plain meaning is “doubtful, ambiguous, or if an adherence to the literal use of the words would lead to injustice, absurdity or contradiction, we will construe the statute according to its obvious spirit or reason.” Id. (alteration, internal quotation marks, and citation omitted).
{10} “We review an alleged error in the admission of evidence for an abuse of discretion” and will overturn a trial court‘s evidentiary ruling “only when the facts and circumstances of the case do not support [its] logic and effect.” Martinez, 2007-NMSC-025, ¶ 7 (internal quotation marks and citation omitted).
Statutory Structure
{11} New Mexico‘s Implied Consent Act (ICA) requires that “[a] test of blood or breath or both, approved by the [SLD] pursuant to the provisions of Section 24-1-22 NMSA 1978, shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle within this state while under the influence of intoxicating liquor or drug.”
A. The [SLD] is authorized to promulgate and approve satisfactory techniques or methods to test persons believed to be operating a motor vehicle . . . under the influence of drugs or alcohol and to issue certification for test operators and their instructors. . . . The [SLD] is further authorized to establish or approve quality control measures for alcohol breath testing and to establish or approve standards of training necessary to ensure the qualifications of individuals conducting these analyses or collections.
B. The [SLD] shall establish criteria and specifications for equipment, training, quality control, testing methodology, blood-breath relationships and the certification of operators, instructors and collectors of breath samples.
The Regulations
{12} Under its statutory authority, the SLD has promulgated regulations in the form of a rule (Rule) governing “the certification of laboratories, breath alcohol instruments, operators, key operators, and operator instructors of the breath alcohol instruments as well as establish[ing] the methods of taking and analyzing samples of blood and breath testing for alcohol or other chemical substances under the [ICA].”
{13} The Rule defines “Breath alcohol instrument” as “[a]ny evidential breath testing device that is capable of analyzing breath to establish the concentration of alcohol contained in a breath sample” and requires that “[s]uch instruments must be approved and individually certified by SLD for use in testing pursuant to the [ICA] and this rule.”
{14} SLD selects the instruments used in New Mexico based on criteria that include performance in SLD‘s evaluation process, field history, manufacturer support capability, and evaluations by other users, including approval by the National Highway Traffic Safety Administration.
{15} As to equipment, the only other requirements stated in the Rule are that breath alcohol samples “shall be collected and analyzed pursuant to the procedures prescribed by SLD and employing only SLD approved equipment[,]”
{16} In contrast to equipment, instruments, once approved, must also be certified by SLD. See
{17} As noted, the Rule requires that breath samples must be collected and analyzed “pursuant to the procedures prescribed by SLD and employing only SLD approved equipment and certified instruments.”
Confirmation That SLD Has Approved the Equipment On a Breath Alcohol Instrument Is Not Required by SLD Regulations and Is Not a Foundational Prerequisite to Admission of BAT Results
{18} Our Supreme Court has held that, to meet foundational requirements under
{19} Defendant asserts that SLD approves tanks and gases because they are used in “self-calibration checks by an [IR 8000] during a breath test” and that “[i]t follows that both the process of approval and the purpose of the tanks and gases should ensure the accuracy of breath test results.” She concludes that “[t]he minimum foundation for showing approval of the simulator solution [sic] is the same as that for showing certification of a breath machine[,]” and therefore, “upon objection, the officer testifying for this foundation should be aware of SLD documentation asserting the approval of both the certification of the breath machine and approval of accessories.” The argument lacks merit.
{20} The certification requirements for the instrument relate to its “routine function . . . in order to [ensure] that it gives accurate readings.” Dedman, 2004-NMSC-037, ¶ 12 (internal quotation marks and citation omitted). Similarly, “[t]he purpose of calibration is to ensure that the machine is working properly so that a valid breathalyzer test result is obtained.” State v. Montoya, 1999-NMCA-001, ¶ 12, 126 N.M. 562, 972 P.2d 1153. The calibration check specified in the Rule checks the instrument to ensure that its analysis of one or more gas reference standards of known alcohol concentration produces a reading within a specified range.
{21} The Legislature has delegated full authority to SLD over the testing of persons believed to be DUI, including the establishment of criteria and specifications for equipment, quality control, testing methodology and standards, and the certification of breath alcohol instruments, operators, and instructors.
{22} Neither the plain language nor the “obvious spirit or reason” of the SLD Rule even suggests that the regulations requiring SLD approval of equipment are “accuracy ensuring” in the same manner as the regulations imposing numerous certification requirements on SLD-approved instruments on a per-instrument basis. And Defendant has provided no basis from which to conclude that confirmation by the certified instrument operator at the time of the BAT that the gas tank and the reference standard it contains are SLD-approved is necessary to ensure the accuracy of the BAT. We conclude that the State need not make a threshold showing that the certified operator of a certified breath alcohol instrument confirmed at the time of the test that equipment attached to the instrument is SLD-approved in order to lay a sufficient foundation under
CONCLUSION
{23} The trial court did not abuse its discretion in admitting Defendant‘s BAT results into evidence. We affirm.
{24} IT IS SO ORDERED.
LINDA M. VANZI, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
TIMOTHY L. GARCIA, Judge