State v. HugheyState v. Hughey
{1} This mаtter is before this Court on the State’s interlocutory appeal from the trial court’s exclusion of evidence. See
FACTS AND PROCEEDINGS BELOW
{2} On July 20, 2002, at approximately 11:30 p.m., Defendant was involved in an automobile accident when her vehicle collided with a motorcycle, killing the driver of the motorcycle. Defendant was transported to the hospital and treated for injuries. Defendant’s blood was drawn four hours after the accident, at 3:30 a.m. on July 21, 2002, and later subjected to a blood test. Defendant’s BAC measured. 10. Defendant was taken to the police department where she waived her Miranda rights and gаve a tape-recorded statement to police. In her taped statement, Defendant admitted that she drank about two beers at approximately 8:30 p.m. Defendant was charged with homicide by vehicle, contrary to
{3} Defendant filed a Motion in Limine requesting the trial court to exclude the results of her BAC test. As grounds for excluding her BAC test results, Defendant stated that the relevancy of the results was to establish her BAC at the time of driving. Defendant argued that to be relevant, the results would have to make it “more or less likely that the Defendant’s BAC four hours earlier, at 11:30 p.m., was .08 or above, the per se limit for [DUI],
{4} The trial court held a hearing on Defendant’s Motion in Limine. At the hearing, both Defendant and the State presented testimony of expert witnesses. Defendant presented testimony from Dr. Edward Reyes, whom the trial court accepted as an expert in pharmacokinetics. Dr. Reyes testified that based on Defendant’s statement tо police that she had two beers at 8:30 p.m. and her BAC of .10 at 3:30 a.m., her BAC at the time of the accident cannot be known. Dr. Reyes testified that he could not make an .educated
{5} In response, the State presented testimony by Curtis Caylor, who was qualified as an expert in the field of toxicology. Caylor testified that in order to determine Defendant’s BAC at 11:30 p.m. through the process of retrograde extrapolation, several assumptions would have to be made. The two major assumptions were that Defendant had been drinking over a period of time, and that she had no alcohol to drink after the accident. While Caylor could not testify as to Defendant’s rate of alcohol absorption, he stated that in most cases, alcohol is absorbed anywherе between fifteen minutes to an hour after it has been drunk. Caylor advanced that the generally accepted time to reach peak alcohol level is fifteen minutes to an hour after the alcohol is ingested. Additionally, Caylor testified that if Defendant suffered from shock due to the accident, the effect if any, would be to slow down her rate of alcohol absorption slightly, not stоp it. Caylor also disagreed with Dr. Reyes as to the effect of food in the stomach; he testified that the presence of food in the stomach would slow, not stop, the absorption of alcohol.
{6} After listening to both experts, the court made an oral ruling granting Defendant’s motion at the close of the hearing:
As to this motion, I don’t read State v. Baldwin as primarily dicta. It looks to me like the issues that were faced in Baldwin are precisely the issues that we must face here. And to quote several sections of Baldwin: “The State must prove a nexus between a blood alcohol content of .08 or more and the time Defendant operated a motor vehicle.” Timing is also an essential element for a conviction underSection 66-8-102(A) ____ The defendant in Baldwin argued “that the essential elemеnt of timing or relation back to the time of driving required direct proof, and that in the absence of such evidence the State left the element of timing to jury speculation,” and the Court of Appeals’ opinion seems to agree with that argument____In the Baldwin case, there was no articulable corroborating evidence, and Baldwin’s objections were sustained____Finally, in considering the testimony of Dr. Reyes and Mr. Curtis, I find Dr. Reyes’ testimony compelling, given the study that he has, studies he has been doing, and teaching for over twenty-five years. And the motion will be granted, relating to any testimony on that issue.
The court entered a written order excluding Defendant’s BAC test results and the State appealed pursuant to
{7} The Court of Appeals affirmed the trial court’s decision to exclude Defendant’s .10 BAC result. The Court reasoned that Baldwin and subsequent cases addressing the question of what constitutes sufficient evidence of BAC at the time of driving when there is a significant delay between driving and testing of BAC, “provide context for determining the admissibility of BAC evidence.” State v. Hughey,
{8} The State petitioned this Court for review, arguing that the trial court judge “erred as a matter of law and usurped the role of the jury in essentially granting a ‘pretrial directed verdict,’ based upon his believing Defendant’s expert that therе were too many unknown factual variables to make an accurate retrograde extrapolation in this particular case.” We granted certiorari in order to review the role of a trial court in excluding BAC evidence.
DISCUSSION
{9} The admission or exclusion of evidence is within the discretion of the trial court. On appeal, the trial court’s decision is reviewed for abuse of discretion. State v. Armendariz,
{10} The State asserts that the trial court improperly excluded Defendant’s BAC result when the State’s and Defendant’s experts differed — not on the validity of retrograde extrapolation under Alberico — but on whether sufficient faсts were known in this particular case to accurately apply retrograde extrapolation. Defendant responds that the trial court’s exclusion of Defendant’s BAC was an appropriate exercise of the court’s gatekeeping function and that the court had a two-fold basis for its decision: (1) the testimony of the State’s witness was not competent enough to satisfy
{11} A trial court’s authority to rule on pretrial motions in criminal matters is outlined in
{12} The relevant criminal statute in this case is
{13} In this case, the court based its decision to exclude Defendant’s BAC on Baldwin. However, the court’s application of Baldwin to the facts of this case was inappropriate. The issue in Baldwin was not whether the defendant’s BAC was admissible. Rather, the issue in Baldwin was whether the State presented sufficient evidence to establish an evidentiary nexus between the time of driving and BAC test results in order to support a conviction for per se DUI. Finding that no witness testified to such nexus, the Court of Appeals held that without evidentiary support “the jury was left to speculate about what the BAC might or might not have been at the time [the defendant] drove his vehicle.” Id. ¶ 15. We have decided that in criminal cases, unlike civil cases, trial courts are not ordinаrily authorized to rule on the sufficiency of the prosecution’s evidence of guilt before the State has had the chance to present its evidence at trial. See Gomez,
{14} Our rules of criminal procedure provide for dismissal based on the State’s failure to offer sufficient proof to carry its burden at two different points during trial: either after the State has presented its case or at the close of the presentation of all of the evidence. See Rule 5-607(E), (K) NMRA. In this casе, the court erred when it decided, pre-trial, a question of fact that should have been reserved until the State had an opportunity to present its evidence. The question before the trial court was whether the expert testimony presented was sufficient evidence to relate Defendant’s BAC test result of .10 back to the time when she was driving. While we agree with the Court of Appeals that the expert testimony presented by the State was somewhat vague, it is arguable that a proper inference that may be drawn from the testimony of the State’s expert is that Defendant’s BAC was higher than .08 at the time of the accident.
{15} The State’s expert testified that the generally accepted time to reach peak alcohol level is fifteen minutes to an hour after the alcohol is absorbed. Working from the assumption that Defendant stopped drinking at 8:30 p.m., as she told police, a reasonable inference arguably might be drawn that Defendant had reached her peak alcohol level by the time the accident occurred and that her BAC at the time of the accident was higher than .10. See Hughey,
{16} In addition to our conclusion that Defendant’s Motion in Limine raised a factual issue that ought to be resolved at trial, we are also troubled by the trial judge’s statement that he found “Dr. Reyes’ testimony compelling, given the ... studies he has been doing, and teaching for over twenty-five years.” It is the role of the factfinder to judge the credibility of witnesses and determine the weight of evidence. State v. Ryan,
{17} Turning to Defendant’s claim that Defendant’s BAC was properly excluded because the testimony of the State’s witness was not competent enough to satisfy Rule 11-702 and Alberico, we conclude that the requirements of Rule 11-702 and Alberico do not provide a basis for the court to exclude Defendant’s BAC. We do not agree with the Court of Aрpeals’ assessment that the “State’s expert was so vague and general as to provide no real assistance to the trier of fact.” Hughey,
{18} Finally, we address Defendant’s claim that the evidence of her BAC was properly excluded under Rule 11-403, which allows for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice. However, Rule 11^103 doеs not provide support for the trial court’s decision to exclude Defendant’s BAC. We hold the trial court should have withheld any decision based on Rule 11^03 until after the trial had commenced. The trial judge was not in a position to gauge the probative value of Defendant’s BAC test result because a question of fact remained as to whether there was sufficient evidence to relate Dеfendant’s BAC test result back to the time of driving. Without knowing the probative value of the evidence, it was impossible for the trial judge to conduct any weighing of probative value against unfair prejudice, as required by Rule 11-403.
CONCLUSION
{19} Because we identify no basis for excluding Defendant’s BAC under Rule 11-403 or Rule 11-702, and because we conclude that the exclusion of Defendant’s BAC was inconsistent with Rule 5-601, we reverse the trial court’s decision to exclude Defendant’s BAC. We remand this case to the trial court.
{20} IT IS SO ORDERED.