{1} Defendants Frank Julian and Travis Willie each waited for about an hour following
{2} Defendants argue that despite the officers’ observations of them under these conditions, the results of their BrATs were inadmissible because the arresting officers neither asked them if they had anything in their mouths nor inspected their mouths for any substances prior to taking their first breath samples. 1 They argue that the officers’ failure to “ask or check” violated Regulation 7.33.2.12(B)(1) NMAC, which provides that “[b]reath shall be collected only after the Operator or Key Operator [in this case, the arresting officers] has ascertained that the subject has not had anything to eat, drink or smoke for at least 20 minutes [the deprivation period] prior to collection of the first breath sample.” The State argues that this regulation does not require the officers to “ask or check,” and instead leaves the manner and means in which an officer determines that a person has not had anything to “eat, drink or smoke” during the deprivation period up to the individual officer on a case-by-case basis. We hold that Regulation 7.33.2.12(B)(1) NMAC (the regulation) does not require BrAT machine operators to “ask or check” prior to beginning the deprivation period, and therefore we affirm Willie’s conviction and remand Julian’s case to the Court of Appeals.
I. BACKGROUND
{3} For our purposes on review, these cases present identical relevant factual backgrounds. On separate occasions, Defendants were pulled over for driving erratically and, after showing signs of impairment, were arrested for drunk driving. At some point after their arrests, they each consented to submit to a breath alcohol test.
{4} Defendant Willie was arrested at 1:39 a.m., at which time he was placed in a patrol car with his hands cuffed behind his back. He gave his first breath sample nearly one hour later at approximately 2:35 a.m. In the time between Willie’s arrest and his first BrAT, Willie was either handcuffed in the back seat of the arresting officer’s patrol car or was “face to face” with the officer in the breath testing room. Prior to administering the BrAT, the arresting officer conversed with Willie. Based on his observations of Willie under these conditions, the arresting officer testified that Willie did not eat, drink, or smoke during the time between Willie’s arrest and his first BrAT. However, the arresting officer did not check Willie’s mouth for any substances prior to initiating the deprivation period, and the record does not indicate whether Willie was asked at any time prior to giving his first breath sample if he had anything in his mouth. Willie’s BrAT results were 0.12 at 2:35 a.m. and 0.13 at 2:38 a.m.
{5} Defendant Julian was arrested at approximately 3:30 a.m., and he was handcuffed and placed in the patrol car at that time. Julian gave his first breath sample at about 4:20 a.m., approximately fifty minutes later. In the time between Julian’s arrest and his first BrAT, Julian was either handcuffed in the back seat of the arresting deputy’s patrol car or in a holding cell at the police station, where he remained handcuffed. After placing Julian under arrest, the arresting deputy engaged Julian in conversation, although the extent of that conversation was not developed at trial. Based on his observations of Julian under these conditions, the deputy testified that Julian did not put anything in
{6} Defendants were both convicted of DWI at their de novo trials in the district court, and they appealed to the Court of Appeals, which reversed their convictions. The Court of Appeals concluded that by using the term “ascertain,” “the language of the regulation appears to require an affirmative step by the arresting officer to determine whether a suspect has something in his or her mouth at the beginning of the deprivation period.” State v. Willie,
[R]equires that the officer at the very least look in the subject’s mouth or ask the subject if there is anything in his or her mouth [prior to beginning the deprivation period]. Following that, it would be reasonable for an officer to conclude that a subject who is handcuffed with hands behind him or her, who is confined to the backseat of a police vehicle and then to the detention center, and who is in the officer’s presence during the entire time, has not put anything to eat, drink, or smoke in his or her mouth.
Id.; see also State v. Julian, No. 26,583, mem. op. at 2 (N.M.Ct.App. Apr. 14, 2008). We granted the State’s petitions for writs of certiorari, which asked us to review this holding of the Court of Appeals, and consolidated these cases. State v. Willie,
II. DISCUSSION
A. JULIAN’S ARGUMENT WAS NOT ABANDONED
{7} As a preliminary issue, the State argues that Julian abandoned his argument that a BrAT operator must “ask or check” because he did not adequately brief this argument in the Court of Appeals. See State v. Foster,
B. THE REGULATION DOES NOT REQUIRE THAT BrAT OPERATORS “ASK OR CHECK” WHETHER A SUBJECT HAS HAD ANYTHING TO EAT, DRINK, OR SMOKE PRIOR TO INITIATING THE DEPRIVATION PERIOD
{8} The parties do not dispute that under State v. Martinez and Rule 11-104(A) NMRA, the regulation must be complied with in order for BrAT results to be admissible.
{9} The interpretation of an administrative regulation is a question of law that we review de novo. Alliance Health of Santa Teresa, Inc. v. Nat’l Presto Indus., Inc.,
{10} The regulation requires that: Breath shall be collected only after the Operator ... 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.
Regulation 7.33.2.12(B)(1) (emphasis added). Our focus is on what the Scientific Laboratory Division of the Department of Health (SLD) intended with its use of the term “ascertain,” and in accordance with our rules of construction, we begin our analysis with the plain meaning of that term. See Ogden,
{11} Defendants encourage us to adopt the Court of Appeals’ construction of the regulation and require that an operator “ask or check” prior to initiating the deprivation period. In reaching its conclusion, the Court of Appeals applied the plain meaning rule and determined that to “ ‘ascertain’ ” is “ ‘to find out or learn for a certainty (as by examination or investigation): make sure of.’ ” Willie,
{12} The ordinary meaning of “ascertain,” while suggesting the necessity to make a determination to some degree of certainty, does not address the manner in which such a determination is made. In addition to the definitions referenced above, to “ascertain,” also means to “acquire information,” “arrive at a conclusion,” “determine,” “remove doubt,” and “verify.” Burton’s Legal Thesaurus 41 (3d ed.1998). We cannot conclude on the basis of the regulation’s language alone that asking or checking are the only ways to reach the requisite degree of certainty. Therefore, contrary to the Court of Appeals’ conclusion, the plain meaning of the term “ascertain” does not prevent a BrAT operator from using a variety of methods and means to determine that a DWI suspect has not had anything to eat, drink, or smoke during the deprivation period. Cf. State v. Snuggerud,
{13} Even if the term “ascertain” is subject to more than one meaning, we believe that our interpretation is most consistent with the regulation’s “obvious spirit or reason,” as evidenced by its historical amendments. Davis,
{14} The previous version of the regulation required that “ ‘the subject has been under continuous observation for at least 20 minutes prior to collection of the first breath sample.’” Collins,
{15} Our conclusion is supported by the only other jurisdiction we found construing a regulation similar to Regulation 7.33.2.12(B)(1). In Buchholz v. North Dakota Department of Transportation, the North Dakota Supreme Court resolved an issue identical to the one we address in this opinion: “whether the State Toxicologist’s approved method requires [breathalyzer] operators to ask subjects if they have anything in their mouths or to look in their mouths prior to administering the [BrAT].”
{16} In light of our construction of the regulation, we conclude that there was sufficient evidence admitted at Defendants’ trials to support the court’s finding by a preponderance of the evidence that the regulation had been complied with. The records show that Defendants were restrained for nearly an hour after their arrests in such a way that it would be unlikely that they could have eaten, drunk, or smoked anything. During this time, the arresting officers observed
{17} Finally, we note that throughout his brief to this Court, Julian argues that the arresting deputy’s failure to determine whether Julian belched or regurgitated during the deprivation period violated the regulation because “the biological reality is that regurgitation can introduce substances into the mouth[,]” and “[t]hese substances can be re-ingested [, i.e., “eaten” within the context of the regulation].” In Willie, despite its reversal of the district court, the Court of Appeals decided against Defendants and concluded that the regulation does not require that the BrAT operator ascertain whether a subject burped or regurgitated during the deprivation period because only a prior version of the regulation included this requirement.
III. CONCLUSION
{18} We hold that the provisions of Regulation 7.33.2.12(B)(1) do not require BrAT operators to either ask a person suspected of drunk driving whether he or she has anything in his or her mouth or to inspect a suspect’s mouth for food or other substances prior to initiating the required twenty-minute deprivation period. To the extent that Collins,
{19} IT IS SO ORDERED.
Notes
. Throughout this opinion we refer to Defendants' argument as the "ask or check” requirement.