Case Law AnatomyWork Product - Property of the Second Judicial District Attorney’s Office

Jurisdiction (ABQ, Bernalillo County, NM) 3

Off-Duty Officer/Unmarked Units 5

Tip 7

Community Caretaker 10

Pretextual Stop 12

Roadblock 13

Reasonable Suspicion 16

Mistaken Belief 26

Police Team Concept 28

Consensual Stop 29

Miranda Warnings 31

Custody (When is Defendant in Custody) 35

De Facto Arrest 37

Exceptions to Misdemeanor Arrest Rule 39

Field Sobriety Tests 41

Probable Cause 44

Implied Consent 46

Consciousness of Guilt (Refusal) 53

Breath Testing 54

Blood Testing 65

Blood Warrants 71

Confrontation 74

Impaired to the Slightest Degree 80

“Motor Vehicle” 84

Control 85

Involuntary Intoxication 88

Duress 89

Suspended/Revoked Driver’s License 90

Lost/Uncollected Evidence 97

Corpus Delicti 100

Proof of Priors 101

Child Abuse by Endangerment 105

Homicide by Vehicle 108

Great Bodily Harm by Vehicle 113

Speedy Trial 116

Miscellaneous 122

Updated and Shepardized on September 26, 2016

Jurisdiction (City of ABQ, County of Bernalillo, State of NM)

State v. Apodaca, 1991-NMCA-048, 112 N.M. 302, abrogated on other grounds by State v. Gomez, 1997-NMSC-006, 122 N.M. 777. “The state bore the burden of proving beyond a reasonable doubt that the allegedoffense occurred within New Mexico…Circumstantial evidence sufficed to establish the location of thecrime.” Apodaca, 1991-NMCA-048, 306.

FACTS: Officer testified that he was a New Mexico State Police officer stationed in Socorro,that he was on regular patrol, and that the drugs were seized in Socorro County. Court ruled that the jury in Socorro County did not need to be told that Socorro wasin New Mexico.

State v. Harrison, 2010-NMSC-038. “We conclude that state officers have the authority to enter Indiancountry to investigate off-reservation crimes committed by Indians, so long as their investigation does notinfringe on tribal sovereignty by circumventing or contravening a governing tribal procedure.” Harrison,2010-NMSC-038, ¶1. “‘As a general principle, a state does not have jurisdiction over crimes committed byan Indian in Indian country.’ However, a state generally has jurisdiction over crimes committed by an Indianoff the reservation. When a crime occurs both inside and outside of Indian country, state courts acquireconcurrent jurisdiction with tribal and federal courts.” Harrison, 2010-NMSC-038, ¶13. (Internal citationsomitted). “Although a state lacks jurisdiction over crimes committed by Indians in Indian country, a statehas limited jurisdiction over crimes committed by non-Indians in Indian country. Specifically, a state hasjurisdiction over ‘crimes by non-Indians against non-Indians...and victimless crimes by non-Indians.’ Because most traffic offenses are victimless crimes, ‘in which neither an Indian nor Indian property isinvolved,’ the states have subject matter jurisdiction to adjudicate these offenses in state court.” Harrison,2010-NMSC-038, ¶14. (Internal citations omitted). “...[A] state officer has the authority to stop an offendingvehicle in Indian country to determine whether the officer has jurisdiction to investigate and enforceviolations of the traffic code.” Harrison, 2010-NMSC-038, ¶18 (citing from United States v. Patch, 114 F.3d131, 134 (9th Cir. 1997)). “The scope of a state officer’s investigative authority in Indian country necessarilyis dependent on the scope of the state’s criminal jurisdiction, which, in turn, is dependent on two factors: (1)whether the defendant is Indian or non-Indian, and (2) whether the traffic violation occurred inside or outsideof Indian country. If the defendant is non-Indian and the traffic offense was victimless in nature, then thestate officer has full authority to conduct a complete criminal investigation, regardless of whether theviolation occurred inside or outside of Indian country. This is because the state has criminal jurisdiction overcrimes committed by non-Indians outside of Indian country and victimless crimes committed by non-Indiansinside of Indian country. However, if the defendant is Indian and the traffic offense occurred inside of Indiancountry...then the state officer’s investigative authority is limited to ascertaining the defendant’s identity anddetaining the defendant pending the arrival of proper authorities.” Harrison, 2010-NMSC-038, ¶19. (Internal citations omitted).

3

State v. Sanchez, 2014-NMCA-095. “We hold that (1) the tribal officer was properly cross-commissionedand could properly arrest Defendant while wearing the uniform of and receiving his salary from the TesuquePueblo Police Department...” Sanchez, 2014-NMCA-095, ¶1. “It is well-settled that the state has jurisdictionover victimless crimes committed by non-Indians in Indian County, including DWI offenses.” Sanchez,2014-NMCA-095, ¶6.

FACTS: Defendant was arrested for DWI by a Tesuque Pueblo police officer on TesuquePueblo property and charged in Santa Fe County Magistrate Court. Officer was aproperly commissioned, full-time tribal officer and was cross-commissioned as aSanta Fe County special deputy sheriff. Officer had a written appointment from theSanta Fe County Sheriff. Officer signed an oath of office and carried a card issuedby the Santa Fe County Sheriff’s Office showing cross-commissioned status. Sheriff testified that he gave Officer the authority to enforce criminal and trafficlaws, including DWI, within Santa Fe County. Court held that since there was noconflicting evidence, Officer was authorized to investigate and arrest Defendant forany violations of DWI law occurring in Santa Fe County.

4

Off-Duty Officers/Unmarked Units

NMSA 1978, §66-8-124(A). “No person shall be arrested for violating the Motor Vehicle Code [66-1-1NMSA 1978] or other law relating to motor vehicles punishable as a misdemeanor except by acommissioned, salaried peace officer who, at the time of arrest, is wearing a uniform clearly indicating thepeace officer’s official status.”

NMSA 1978, §66-8-125(C). “Members of the New Mexico state police, sheriffs, and their salaried deputiesand members of any municipal police force may not make arrest for traffic violations if not in uniform;however, nothing in this section shall be construed to prohibit the arrest, without warrant, by a peace officerof any person when probable cause exists to believe that a felony crime has been committed or in nontrafficcases.”

State v. Archuleta, 1994-NMCA-072, 118 N.M.160. “It seems clear enough that the intention of thelegislature in requiring the officer to wear a uniform plainly indicating his official status was to enable themotorist to be certain that the officer who stops him is, in fact, a police officer.” Archuleta, 1994-NMCA-072, 162. “We believe that the deletion of [a second sentence to the pre-1968 amendment of what is nowNMSA 1978, §66-8-124 that set forth the definition of ‘uniform’ to mean an official badge prominentlydisplayed, accompanied by a commission of office] suggested that the legislature intended the definition of‘uniform’ to be less restrictive, no doubt recognizing that modern day police officers may have more thanone uniform or may on occasion wear combinations thereof. Given the statutory definition, we now adopttwo alternative tests for determining if an officer is in ‘uniform’ within the intent of the statute; one, whetherthere are sufficient indicia that would permit a reasonable person to believe the person purporting to be apeace officer is, in fact, who he claims to be; or, two, whether the person stopped and cited either personallyknows the officer or has information that should cause him to believe the person making the stop is an officerwith official status. The objective test best suits more populated areas or persons traveling through the state. The subjective test may be appropriate in small towns where everyone knows the constable and recognizeshis official status.” Archuleta, 1994-NMCA-072, 163. “Not every technical violation of the requirementthat a peace officer display his authority will invalidate an arrest.” Archuleta, 1994-NMCA-072, 164.

FACTS: Officer was off-duty and wearing civilian clothes, but was driving a marked unit. Saw Defendant speeding 70 mph in a 45 mph zone. Officer engaged emergencyequipment and Defendant pulled over. Prior to getting out of his unit, Officergrabbed an APD windbreaker from the back seat. The windbreaker had a clothshield on the front that said “Albuquerque Police” and a patch on the shoulder thathas the State of New Mexico emblem on it. The emblem had the words“Albuquerque Police” on it. Officer approached Defendant and asked for license, registration, and proof of insurance. He also called for a unit to assist before issuinga citation. Two uniformed officers arrived and witnessed Officer issue the citation. Court found that both tests for determining if Officer was in uniform had beensatisfied. Officer was in a marked unit and wearing a windbreaker that had“Albuquerque Police” on it in two places. Defendant knew Officer was acting inhis official capacity and was a peace officer because when he saw Officer waswearing civilian clothes, he accelerated. When Officer stopped Defendant, heimmediately confronted Officer about his lack of uniform.

5

State v. Maes, 2011-NMCA-064, 149 N.M. 736. Officers in an unmarked vehicle wearing basic duty uniformstopped Defendant for traffic infractions. A basic duty uniform (BDU) consisting of black pants, blackboots, vest with communication device, shirt with STATE POLICE on it and State Police patch, belt, holster,firearm, and badge constitutes a “uniform” under NMSA 1978, §66-8-124 and §66-8-125. The court foundthat both Archuleta tests were met. “Additionally, whether the vehicle was marked or unmarked does notaffect our conclusion that the BDU is a uniform.” Maes, 2011-NMCA-064, ¶12.

State v. Slayton, 2009-NMSC-054, 147 N.M. 340. “...The common law right to citizen’s arrest for suspectedviolations of the Motor Vehicle Code and other misdemeanor motor vehicle laws has been abrogated by theLegislature...DWI is a violation of the Motor Vehicle Code. Therefore, citizens’ arrests for DWI are notlegal.” Slayton, 2009-NMSC-054, ¶26.

FACTS: Defendant rear-ended a vehicle and left the scene. A PSA found Defendant andhandcuffed him to await the arrival of officers. Court found that the PSA waswithout statutory authority under NMSA 1978, §66-8-124(A) to detain or arrestDefendant.

6

Tip

State v. Jones, 1981-NMSC-013, 96 N.M. 14. “A warrantless arrest may be based upon information fromother persons where the information is corroborated or verified to an extent sufficient to establish theinformant’s credibility.” Jones,1981-NMSC-013, 15.

FACTS: Officers received a call from an anonymous informant that he had been inDefendant’s apartment within the last 12 hours and Defendant had shown himnarcotics. Defendant also bragged that he had gotten them by burglarizingpharmacies. Defendant said that he got into the pharmacies by the roof andwindow. Informant described Defendant and his car. Officers verified the modusoperandi, which hadn’t been revealed to the public. Defendant observed emergingfrom the apartment described by informant, and the car matched informant’sdescription. Defendant was arrested, and narcotics were found on him. Courtfound that the credibility of informant was established by the verification of thecircumstances of the crimes as related by the informant, and the accuracy of thedescriptions supplied by the informant.

State v. Contreras, 2003-NMCA-129, 134 N.M. 503. “An anonymous tip, seldom reliable on its own, mustbe suitably corroborated or exhibit sufficient indicia of reliability to provide the police with reasonablesuspicion to make an investigatory stop. Because the facts surrounding the anonymous tip and investigatorystop are viewed in light of the totality of the circumstances, a deficiency in one consideration can becompensated for by the strength in another consideration or by some indicia of reliability.” Contreras, 2003-NMCA-129, ¶5. “In New Mexico, a citizen-informant is regarded as more reliable than a police informantor a crime-stoppers informant.” Contreras, 2003-NMCA-129, ¶10.

FACTS: Deputy stopped Defendant pursuant to an anonymous tip from a concerned motoristwho observed erratic driving. Motorist said there was a possible drunk driverdriving a grey van, towing a red Geo, and driving erratically. Deputies didn’tobserve erratic driving, but noted signs of intoxication upon contact. Court foundthat based on the facts in that case and considering the totality of circumstances, thedeputy had RS sufficient to make a brief, investigatory stop. The caller was reliableand an eyewitness to the erratic driving. The info was detailed enough for the carto be found.

State ex rel. Taxation & Revenue Dep’t. v. Van Ruiten, 1988-NMCA-059, 107 N.M. 536. The court lookedat “whether the information relayed in the dispatch, coupled with the officer locating and identifying thevehicle would warrant a person of reasonable caution in believing that defendant was violating the lawjustifying an investigatory stop...Citizen-informants are subject to much less stringent credibility verificationrequirements than ordinary police informants’ statements***. A person who purports to be a witness or avictim of a crime may be presumed reliable, although police and other governmental officials must remainalert to the existence of particular circumstances that would indicate unreliability.” Van Ruiten, 1988-NMCA-059, 540.

FACTS: Officers received an anonymous tip of a possible drunk driver in a blue and whiteFord pickup truck bearing license plate HK-3518. Caller had seen a man who wasvery intoxicated leaving store in the truck heading south on State Road 18. 15 mins.later, Officer found truck matching that description driving south on State Road 18. Court found that Officer had sufficient information to form RS that Defendant wasDWI and had a reasonable basis to stop Defendant to investigate.

7

State v. Hernandez, 1997-NMCA-006, 122 N.M. 809. Court found that the tip that Defendant might be inEl Paso and would be transporting cocaine provided the necessary facts to allow officer to make aninvestigatory stop. When the vehicles matching the description and traveling in the direction provided passedthrough the checkpoint, the Border Patrol agent had RS to conduct an investigatory stop of the Defendanton the highway.

FACTS: Defendant Terri Hernandez and her daughter were returning from Juarez, Mexicoand were stopped at Border Patrol station for a routine citizenship check. Defendant’s car allowed to pass. A blue truck driven by Jose Ibarra appeared a fewvehicles behind Defendant. At the same time as the pass-through, FBI agentnotified Border Patrol that a confidential informant had advised him that a personnamed Terri Hernandez might be traveling with an unspecified amount of cocaineon her person or in her vehicle. Informant provided the make, color, and licenseplate of Defendant’s vehicle and indicated that it would be followed by a blue truck. Informant said Defendant was coming from El Paso, so Border Patrol agentassumed that she would be coming through that checkpoint. He didn’t investigatean alternate route. Agents stopped the blue truck and pursued Defendant’s car onthe highway. Defendant was escorted back to checkpoint. Narcotics dog didn’tdetect drugs in Defendant’s car or in Ibarra’s. No drugs found on Defendant’sperson. Drugs found in Defendant’s daughter’s bra. Defendant denied knowinganything about the drugs, and Defendant’s daughter said she didn’t tell Defendant.

State v. Flores, 1996-NMCA-059, 122 N.M. 84. “An anonymous tip may justify an investigatory stop if theinformation is sufficiently corroborated by subsequent investigation to establish reliability...The lack ofsufficient corroboration of predictive detail [invalidates] a stop based on an anonymous tip.” Flores, 1996-NMCA-059, ¶8.

FACTS: Sheriff’s office in Van Horn, TX called Artesia police with a tip from a local VanHorn informant. According to the tip, within the past hour to hour and a half, threevehicles left Van Horn together on their way to Artesia carrying 200 to 250 poundsof marijuana. Informant described the vehicles as a white car with vinyl blue top,a purple or blue pickup truck with a camper shell, and a brown or maroon pickuptruck with chrome wheels. Officers drove to most direct route between Artesia andVan Horn and spotted two vehicles fitting description in the tip, a white car andmaroon pickup truck. Vehicles were stopped and about ten minutes later,Defendant drove by in a blue pickup truck matching the description of the thirdvehicle in the tip. Defendant was stopped. Police searched all three vehicle andfound no drugs. Narcotics dogs failed to alert to the presence of any drugs. Afterabout an hour at the roadside search, police then took the three vehicles and theirdrivers to a city warehouse to do a more comprehensive search of the vehicles. Nodrugs were found during the comprehensive search. Court held that details in thetip were sufficiently self-corroborating to establish the overall reliability of the tipeven though the information did not, taken alone, necessarily indicate criminalconduct. Although the informant was unknown to Artesia police, the informationgiven by the Van Horn sheriff’s office, once confirmed, provided RS for aninvestigatory stop to confirm or deny the basis of the suspicion.

8

State v. Robbs, 2006-NMCA-061, 139 N.M. 569. “In our case, reasonable suspicion for the investigatorystop of Defendant rested on a tip provided by a named source who wanted his identity kept confidential. Thereliability of a tip from a named source can be gauged more readily than a tip from an anonymous sourcebecause the veracity of the anonymous person is ‘unknown and unknowable...’ We conclude that the tipregarding Defendant was more reliable than an anonymous tip. Moreover, an informant’s ability to predicta person’s future behavior demonstrates a ‘special familiarity’ with that individual’s affairs. This familiarityis an indication that the informant has access to reliable information about a person’s illegal activities. Whensignificant aspects of the information are verified, an officer can reasonably believe in both the reliabilityof the information and the informant’s veracity. Thus, the defendant’s movement through time is the mostimportant factor in assessing whether an officer’s suspicion based on an informant’s tip is reasonable. If thetipster can be said to be in on an action that is taken by the suspect in the future, from the point of view ofthe time the tip is given, then as a matter of law, the asserted illegality can be associated with the predictionso as to increase the reliability of the tip.” Robbs, 2006-NMCA-061, ¶¶13-14. (Internal citations omitted).

FACTS: Detective received a tip from someone who provided identification but requestedthat his identification be kept confidential. Informant said that Defendant and herhusband would be delivering meth to an address on a particular street in Clovis. Informant also described their vehicle as a silver and white pickup with apersonalized license plate “GLR.” Detectives located the truck on a different street,but saw it turn its lights on and drive towards the street provided by informant. Detectives followed the truck until it was a couple blocks from the destinationprovided by informant. They stopped the truck before it turned onto a narrow,poorly lit, two-lane road without a shoulder for officer safety. Truck was stoppedto investigate for possession of meth, not for a traffic violation. A drug dog wasrequested and alerted to the truck. Drugs and paraphernalia were found in the truck. Court concluded that the tip was sufficiently reliable to provide RS because theinformant was identified, the tip predicted future movement of Defendant, and othersignificant facts provided in the tip were corroborated by officers.

9

Community Caretaker

State v. Walters, 1997-NMCA-013, 123 N.M. 88. “In community caretaker cases, the reasonableness of thepolice action is determined by balancing the public interest furthered by the police conduct against the degreeof intrusion upon the privacy of a citizen.” Walters, 1997-NMCA-013, ¶22. “We are loathe to discouragecommunity caretaker stops or to make them hazardous for motorists or the police.” Walters, 1997-NMCA-013, ¶22. “A caretaking encounter...does not prevent an officer from making observations that lead toreasonable suspicion.” Walters, 1997-NMCA-013, ¶26.

FACTS: Just before midnight, Officer saw Defendant turn onto an unlit, rural road. Officerdecided to follow Defendant basing his decision on the lateness of the hour and hisknowledge that drunk drivers frequently take rural roads to avoid police. Whilefollowing Defendant, Officer observed nothing about Defendant’s driving thatindicated he was intoxicated or violating the law. Defendant pulled over quicklyand came to a stop on the side of road. Because there were no homes or drivewaysnearby, Officer pulled over to inquire about whether there was something wrongwith the driver or his car. Officer then noticed signs of intoxication. Defendantperformed poorly on SFSTs and was arrested. Court found that the initial contactbetween the officer and Defendant was in the caretaker capacity.

State v. Reynolds, 1995-NMSC-008, 119 N.M. 383. “If a driver invites the attention of a police officer byengaging in unsafe driving conduct, or whenever an officer is reasonably called upon to make contact witha driver (such as at border checkpoints and community caretaker functions), the officer has the right to knowwith whom he is talking and may check to see that the driver is both licensed and driving a car that isregistered and insured.” Reynolds, 1995-NMSC-008, 388.

FACTS: Defendant was passenger in a small truck traveling at night with its emergencylights flashing along the interstate. Three men were riding on tailgate of truck withtheir feet hanging close to the road. Officer concerned about their safety andstopped truck. After making the stop, Officer asked for ID from the tailgatepassengers and license, registration, and proof of insurance from the driver. Courtfound that the initial stop was lawful and that the government has a legitimateinterest in making sure that all drivers are licensed and driving vehicles that areregistered and insured.

State v. Joe, 2003-NMCA-071, 133 N.M. 741. “A police officer may lawfully stop a vehicle for a specific,articulable safety concern.” Joe, 2003-NMCA-071, ¶8.

FACTS: Deputy saw Defendant’s vehicle driving at sunset without its headlights on. It wasvery dark, overcast, very cloudy, and black, and all other cars on the road hadheadlights on. Deputy turned his car around, drove up behind Defendant, andpulled Defendant over to tell him to turn his lights on. As Deputy approached, hesaw a 40-oz can of beer on the rear floor and noticed that Defendant exhibited signsof intoxication. Defendant did poorly on SFSTs and submitted to a blood test thatshowed a BAC of 0.17. Court found that the trial court’s finding that the stop ofDefendant’s vehicle was illegal was supported by sufficient evidence.

State v. Munoz, 1998-NMCA-140, 125 N.M. 765. In the exercise of their community caretaking functionsto enhance public safety, officers may stop vehicles for a specific, articulable safety concern. Munoz, 1998-NMCA-140, ¶8.

10

Apodaca v. State ex rel. Taxation & Revenue Dep’t., 1994-NMCA-120, 118 N.M. 624. “...A police officermay stop a vehicle for a specific, articulable safety concern, even in the absence of reasonable suspicion thata violation of law has occurred or is occurring. Such a stop is justified by the officer’s role as a communitycaretaker...The scope of any intrusion following the stop must be limited to those actions necessary to carryout the purposes of the stop, unless...reasonable suspicion or probable cause arises.” Apodaca, 1994-NMCA-120, 626.FACTS: Officer observed Defendant weaving from the right side of traffic lane to left side in a

continuous pendulum-type movement. Defendant’s motorcycle was also leaning from sideto side. Officer stopped Defendant to check on his welfare. After stop, Officer detectedstrong odor of alcohol, bloodshot eyes, and slurred speech. Defendant took and failed allbut one SFST. His blood-alcohol content was above legal limit. Court held that the factfinder could properly determine that the officer had a reasonable basis to stop Defendant todetermine if he needed assistance.

State v. Reynolds, 1993-NMCA-162, 117 N.M. 23, rev’d on other grounds by State v. Reynolds, 1995-NMSC-008, 119 N.M. 383. “Part of the function of police officers is to carry out community caretakingfunctions to enhance public safety. It is appropriate, then, for police officers to stop vehicles for specific,articulable safety concern.” Reynolds, 1993-NMCA-162, 25. (Internal citations omitted).

State v. Sheehan, 2015-NMCA-021, cert. denied, (No. 35,100, Feb. 16, 2015). “‘An officer who is actingas a community caretaker does not violate the Fourth Amendment.’ ‘When determining whether awarrantless search or seizure is reasonable on the basis of the community caretaker exception, we mustmeasure the public need and interest furthered by the police conduct against the degree of and nature of theintrusion upon the privacy of the citizen.’” Sheehan, 2015-NMCA-021, ¶9. (Internal citations omitted). “Under the public servant doctrine, ‘a police officer may stop a vehicle for a specific, articulable safetyconcern, even in the absence of reasonable suspicion that a violation of law has occurred or is occurring.’ This is an ‘objective test to determine whether a vehicle stop is based on a reasonable concern for public

safety.’” Sheehan, 2015-NMCA-0213, ¶12. (Internal citations omitted). “Once ‘the officer is assured thatthe citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then anyactions beyond that constitute a seizure implicating...the protections provided by the Fourth Amendment. Sheehan, 2015-NMCA-021, ¶14. (Internal citations omitted).

FACTS: Officer noticed car parked on shoulder of road just after midnight. Driver’s sidedoor was open, and interior lights were on. Defendant was in driver’s seat, andwoman was in passenger seat crouched to side with head tilted back completely. Defendant was leaning over woman. Officer believed something was wrong, andhe stopped beside car to check on them. Defendant said they were okay and begananxiously attempting to leave. Officer then backed up, activated his lights, andpulled in behind car. Officer stated that he intended to detain the car to insurewoman’s safety. Officer approached car on passenger side. Woman came to, andOfficer said his concerns were alleviated. Officer then noticed an odor of alcoholcoming from car and asked Defendant to exit. Officer then smelled alcohol onDefendant’s breath. Officer had Defendant perform SFSTs and arrested Defendantfor DWI. Court held that Officer sufficiently articulated a specific concern for thesafety of the female passenger to permit him to detain the vehicle to alleviate thatconcern. When the female passenger roused herself, his safety concerns werealleviated. At that point, Officer was no longer acting in a community caretakerrole, and the situation transitioned into a seizure under the Fourth Amendment.

11

Pretextual Stop

State v. Ochoa, 2009-NMCA-002, 146 N.M. 32. (“Ochoa III”) “To determine whether a stop is a pretextualsubterfuge, courts should consider the totality of the circumstances, judge the credibility of witnesses, weighthe evidence, make a decision, and exclude the evidence if the stop was unreasonable at its inception. Thetotality of the circumstances includes considerations of the objective reasonableness of an officer’s actionsand the subjective intent of the officer–the real reason for the stop.” Ochoa, 2009-NMCA-002, ¶39. Toidentify a pretextual stop: “First, the trial court must determine whether there was reasonable suspicion forthe stop.” The State has the burden of proof to justify the stop. Ochoa, 2009-NMCA-002, ¶40. Then thecourt must decide “whether the officer’s ‘motive for [the stop] was unrelated to the objective existence ofreasonable suspicion or probable cause.’ The defendant has the burden of proof to show pretext based onthe totality of the circumstances...If the defendant shows sufficient facts indicating the officer has anunrelated motive that was not supported by reasonable suspicion or probable cause, then there is a rebuttablepresumption that the stop was pretextual.” Ochoa, 2009-NMCA-002, ¶40. The burden then shifts to theState to show that even without the unrelated motive, the officer would have stopped the defendant.

FACTS: Agent was doing surveillance on a residence for drug trafficking. Saw anunfamiliar vehicle and wanted to investigate it. Agent saw Defendant driving thevehicle without a seatbelt on. Agent called a uniformed patrol officer and told himto stop Defendant’s vehicle for seatbelt violation. Officer located and followed thevehicle for 13 blocks and stopped it. While following, Officer couldn’t see whetherDefendant was wearing seatbelt due to tinted windows. When contacted, Officerrecognized Defendant as someone with an outstanding warrant. Officer couldn’trecall if Defendant had his seatbelt on. Search found drugs and paraphernalia. Court found Defendant established a rebuttable presumption that the stop waspretextual and that the State did not establish that without Agent’s unrelated motive,Officer would have stopped Defendant.

State v. Gonzales, 2011-NMSC-012, 150 N.M. 74. “We interpret Ochoa III to require a determinationwhether the real reason for the stop is supported by objective evidence of reasonable suspicion. If the answeris yes, the stop is constitutional.” Gonzales, 2011-NMSC-012, ¶3. “In analyzing whether an officer hasreasonable suspicion, the trial court must look at the totality of the circumstances, and in doing so it mayconsider the officer’s experience and specialized training to make inferences and deductions from thecumulative information available to the officer. However, an officer’s subjective belief about whether theofficer had reasonable suspicion is not conclusive.” Gonzales, 2011-NMSC-012, ¶16.

FACTS: Narcotics detective was given information from a confidential informant thatsomeone named Victor Gonzales would be transporting a large amount of meth andtold the detective which street Victor Gonzales lived on. Detective conductedsurveillance at that location. Tahoe pulled out of the driveway. Victor Gonzalespreviously seen driving the Tahoe. Detective asked another officer to stop theTahoe if he agreed that the window tint violated the law. Detective also asked theofficer to conduct the stop as he normally would while other officers conducted anarcotics investigation. Detective arranged for another K-9 detective to be presentfor the stop. Narcotics dog found meth in the car. Court found that there wassufficient evidence to support a finding that the stop would not have occurredexcept for the unrelated motive to conduct a narcotics investigation. Case remandedto determine whether there was RS for the unrelated motive–the narcoticsinvestigation.

12

Roadblock

City of Las Cruces v. Betancourt, 1987-NMCA-039, 105 N.M. 655. “In determining whether a roadblockis reasonable within the meaning of the fourth amendment, we must balance the gravity of the governmentalinterest or public concern served by the roadblock, the degree to which it advances these concerns and theseverity of the interference with individual liberty, security, and privacy resulting from the roadblock.” Betancourt, 1987-NMCA-039, 658. “...We hold that a roadblock set up and operated for the purpose ofdetecting and apprehending drunk drivers is constitutionally permissible so long as it is reasonable withinthe meaning of the fourth amendment as measured by its substantial compliance with the guidelines outlinedpreviously.” Betancourt, 1987-NMCA-039, 660. “We would emphasize that we do not forecloseconsideration of other relevant factors where appropriate and we hold that no one guideline is necessarilydispositive of the issue, so long as there is evidence to ensure that an individual’s reasonable expectation ofprivacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” Betancourt, 1987-NMCA-039, 658.

Eight guidelines that will be considered in determining the reasonableness of a roadblock:1. Role of supervisory personnel

“...The decision to set up a sobriety roadblock, the selection of the site and procedures forconducting it must be made and established by supervisory law enforcement personnelrather than officers in the field.” Betancourt, 1987-NMCA-039, 658. “This is essential toreduce the possibility of improper, unbridled discretion of the officers who meet and dealwith the motoring public.” Betancourt, 1987-NMCA-039, 658.

2. Restrictions on discretion of field officers“For a valid roadblock, it is important that the discretion of field officers be restricted. Automobiles should not be stopped randomly. It would be proper to stop everyautomobile...It is also wise to instruct officers orally or in writing on uniform procedures tobe utilized when stopping motorists. As nearly as possible, each motorist should be dealtwith in precisely the same manner.” Betancourt, 1987-NMCA-039, 658-659.

3. Safety“The safety of the motoring public and the field officer should also be given properconsideration. Here, we look to safety measures aimed at warning approaching traffic, thedegree to which the roadblock causes traffic congestion and whether the roadblock is set upin such a way so as to put the motoring public and officers in unnecessary peril.” Betancourt, 1987-NMCA-039, 659.

4. Reasonable location“The location of the roadblock is significant in determining the degree of intrusiveness andsafety of the public and police...Obviously, a location chosen with the actual intent ofstopping and searching only a particular group of people, i.e., hispanics, blacks, etc., wouldnot be tolerated.” Betancourt, 1987-NMCA-039, 659.

5. Time and duration“This factor also bears on the intrusiveness and effectiveness of the roadblock. Reasonableness is the standard.” Betancourt, 1987-NMCA-039, 659.

6. Indicia of official nature of the roadblock“The official nature of the roadblock should be immediately apparent. Officers in the fieldshould be uniformed; police cars should be marked; and warning or stop signs, flares andpylons are advisable. The roadblock scene should strike an appropriate balance to providefor high visibility at the roadblock, yet minimize the potential fear and apprehension to thepublic.” Betancourt, 1987-NMCA-039, 659.

13

7. Length and nature of detention“The average length of time that a motorist is detained at the roadblock and the degree ofintrusiveness should be minimized...Initially, motorists should be detained only long enoughto be informed of the purpose of the stop and to look into the vehicle for signs ofintoxication. Where facts within the observation of the officer warrant further investigation,the suspected motorist should be asked to pull into a separate testing area so as not tounreasonably inhibit the flow of traffic.” Betancourt, 1987-NMCA-039, 659.

8. Advance publicity“The deference value of any roadblock and its reasonableness for sobriety checks will beenhanced if given widespread advance publicity.” Betancourt, 1987-NMCA-039, 659.

State v. Bates, 1995-NMCA-080, 120 N.M. 457. “Although there is no question that a roadblock is a seizure,a roadblock does not require reasonable suspicion or probable cause with respect to a particular motorist. Rather, a roadblock must be reasonable. ‘The reasonableness of a roadblock provides a constitutionallyadequate substitute for the reasonable suspicion that would otherwise be required to justify the detention ofvehicles and the questioning of their occupants.” Bates, 1995-NMCA-080, 460. “We do not believe that thedecision to set up a DWI checkpoint should require a warrant. The evils that a warrant is designed to preventare addressed by the restrictions on the field officer’s discretion in setting up and conducting a roadblock.” Bates, 1995-NMCA-080, 461. “We do not agree that specific empirical data are required to support thereasonableness of the roadblock.” Bates, 1995-NMCA-080, 462. “In determining the reasonableness of aroadblock, all the factors must be considered, and none is dispositive but the role of supervisory personneland the restrictions on discretion of field officers.” Bates, 1995-NMCA-080, 463.

State v. Madalena, 1995-NMCA-122, 121 N.M. 63. “...We believe that the Betancourt guidelines constitutesufficient objective criteria by which to measure the reasonableness of roadblocks under the New MexicoConstitution.” Madalena, 1995-NMCA-122, 69. “...A sobriety checkpoint conducted in substantialcompliance with the eight Betancourt factors is constitutional under the New Mexico Constitution.” Madalena, 1995-NMCA-122, 69.

State v. Villas, 2002-NMCA-104, 132 N.M. 741. “...If the police fail to establish uniform procedures fordealing with motorists who come through a roadblock, the roadblock will not pass constitutional muster andthe stops will be invalid.” Villas, 2002-NMCA-104, ¶7. “...The Betancourt analysis determines theconstitutionality of a roadblock stop, and not later police actions.” Villas, 2002-NMCA-104, ¶8. “Under theNew Mexico Constitution, after the checkpoint stop, a police officer cannot further detain a motorist withoutreasonable suspicion of criminal activity.” Villas, 2002-NMCA-104, ¶10. “If a roadblock is unreasonable,then each stop made at that roadblock will be unconstitutional. On the other hand, most infirmities in post-stop procedures will only affect the charges against the individual driver involved. At that point, theconstitutionality of the roadblock will no longer be at issue.” Villas, 2002-NMCA-104, ¶13.

State v. Duarte, 2007-NMCA-012, 140 N.M. 930. “While officers in the field should not deviate fromuniform law enforcement roadblock procedure and take a substantial risk of branding of unconstitutionalityif they deviate, we do not think that a bright-line test or blanket rule must be established that says that anydeviation from pre-planned procedure will violate the Fourth Amendment. We will examine the totality ofcircumstances in each case.” Duarte, 2007-NMCA-012, ¶39.

14

State v. Anaya, 2009-NMSC-043, 147 N.M. 100. “Evading a marked DWI checkpoint is a specific andarticulable fact that is sufficient to predicate reasonable suspicion for an investigatory stop.” Anaya, 2009-NMSC-043, ¶15. “If a driver is on notice that the checkpoint is ahead, then, where the driver turns awayfrom the checkpoint and the circumstances lead the officer reasonably to believe that the driver is attemptingto evade the checkpoint, the officer may form a reasonable suspicion that the driver is driving whileintoxicated.” Anaya, 2009-NMSC-043, ¶16. “The conclusion that a driver is attempting to avoid acheckpoint may be unreasonable in light of the circumstances of the stop–the time of day, the proximity ofthe turn to the checkpoint, or whether the driver’s actions were typical considering the layout of the area andthe normal flow of traffic.” Anaya, 2009-NMSC-043, ¶17.

FACTS: Roadblock at the top of a hill. Defendant traveling towards it at 2:00 a.m. As sheapproached it, she made a U-turn and drove opposite way. Sign indicatingroadblock was at intersection where Defendant made U-turn. Court found RS.

State v. Swain, 2016-NMCA-024. “Based on our longstanding case law, a lack of advance publicity, withoutmore, is simply not sufficient to find that a DWI checkpoint constitutes an illegal seizure. We take thisopportunity to reaffirm Bates and Olaya inasmuch as each case stands for the proposition that advancepublicity, while beneficial from a deterrence perspective, is not dispositive with respect to the illegal searchand seizure analysis under the Fourth Amendment and Article II, Section 10 of the New Mexico Constitution. While Betancourt stated that the reasonableness for a sobriety checkpoint would be enhanced if givenwidespread advance publicity, we do not take this to mean that the last factor is a mere disposable accessoryto the other seven factors resulting in either its wholesale disregard, or is it an invitation for potential abusethat would effectively remove it from the Betancourt analysis entirely. Swain, 2016-NMCA-024, ¶13. (Internal citations omitted). “The advance notice factor is merely one of eight factors to be considered indetermining the reasonableness of a checkpoint.” Swain, 2016-NMCA-024, ¶14.

State v. Hall, 2016-NMCA-_______, (No. 33,875, Jul. 7, 2016). “We conclude that Sergeant Lecompte’stestimony was sufficient to establish that the checkpoint location was selected on the basis of prior arreststatistics and on the successful deterrent effect of past checkpoints at the same location, and thereforesupported the trial court’s determination that the checkpoint was reasonable.” Hall, 2016-NMCA-_______,¶14. “In the present case, Sergeant Perea had reasonable suspicion that Defendant was driving whileintoxicated before any purported deviation from the tact plan...Consequently, we conclude that the presenceof reasonable suspicion following the initial contact justified further detention for additional investigation,notwithstanding Sergeant Perea’s subsequent deviation from the tact plan guidelines.” Hall, 2016-NMCA-_______, ¶19.

FACTS: Defendant stopped at DWI checkpoint. Approved tact plan laid out parameters,including placement of safety equipment and guidelines for officers conductingstops. Initial contact limited to 15-30 seconds with officer introducing himself,announcing purpose of checkpoint, and asking driver if he had consumed alcoholor drugs. If additional investigation required, officer was to remove driver from carto conduct SFSTs. Sgt. Perea made contact with Defendant and detected odor ofalcoholic beverage from inside truck. Sgt. Perea asked if Defendant had consumedalcohol, and he said a beer. Sgt. Perea performed a seated HGN and removedDefendant to do SFSTs. Defendant performed poorly on SFSTs. At Metro trial,constitutionality of checkpoint challenged based on safety, location not beingreasonable, whether there was advanced publicity, and discretion of officers notproperly restrained. Court found no error in Metro’s determination that safetyfactor complied with and that testimony established that location was reasonable. Court didn’t resolve the advanced publicity argument and found that there was RSbefore Sgt. Perea deviated from the script. Court held that there was sufficientevidence that the checkpoint substantially complied with Betancourt.

15

Reasonable Suspicion

State v. Sedillo, 1969-NMCA-107, 81 N.M. 47. (Burglary case) “In appropriate circumstances and in anappropriate manner, a police officer may approach a person to investigate possible criminal behavior eventhough the officer may not have probable cause for an arrest. To justify such an invasion of a citizen’spersonal security, the police officer must be able to specify facts which, together with rational inferencestherefrom, reasonably warrant the intrusion. These facts are to be judged by an objective standard–wouldthe facts available to the officer warrant a person of reasonable caution to believe the action taken wasappropriate?” Sedillo, 1969-NMCA-107, 49.

State v. Candelaria, 2011-NMCA-001, 149 N.M. 125. “In order to validly stop an automobile, policeofficers must possess, at a minimum, reasonable suspicion that a law has been violated. Such suspicionarises only when officers can detect ‘specific articulable facts...that, when judged objectively, would leada reasonable person to believe criminal activity occurred or was occurring.’ It is not enough for police torely upon ‘[u]nsupported intuition [or] inarticulate hunches.’ Any questions asked by police officers duringthe course of a stop must be either reasonably related to the reason for the stop or supported by reasonablesuspicion.” Candelaria, 2011-NMCA-001, ¶10. (Internal citations omitted). “As the situation develops,officers may expand an investigation to answer any new reasonable and articulable suspicions that ariseduring the course of their lawful activity.” Candelaria, 2011-NMCA-001, ¶9. “When police officers observea vehicle registered to an owner whose license has been suspended, it is reasonable to conclude that thedriver is the registrant–that is, until officers become aware of facts to contradict their assumption.” Candelaria, 2011-NMCA-001, ¶15. “As long as the vehicle has been validly stopped, for whatever reason,police may always ask the driver to produce [their driver’s license, registration, or insurance documents]. In fact, as long as the original stop is supported by reasonable suspicion, police may legally request suchdocuments even after the original suspicion evaporates.” Candelaria, 2011-NMCA-001, ¶18.

FACTS: Officers noticed two vehicles in a parking lot: a Monte Carlo driven by Defendantand a truck. One officer recognized the Monte Carlo from previous investigationand followed it. License plate search showed the owner was Michael Martinez andthat his license was suspended. Concluding that Martinez was the driver, Officerpulled the car over. He then realized that Defendant, not the owner, was the driver. Officer asked Defendant for license, registration, and proof of insurance. Courtfound that, because the officers had no facts to contradict that Martinez was thedriver, they had RS to affect traffic stop.

Apodaca v. State ex rel. Taxation & Revenue Dep’t., 1994-NMCA-120, 118 N.M. 624. “...A police officermay stop a vehicle for a specific, articulable safety concern, even in the absence of reasonable suspicion thata violation of law has occurred or is occurring. Such a stop is justified by the officer’s role as a communitycaretaker. The scope of any intrusion following the stop must be limited to those actions necessary to carryout the purposes of the stop, unless, as here, reasonable suspicion or probable cause arises.” Apodaca, 1994-NMCA-120, 626.FACTS: Officer observed Defendant weaving from the right side of traffic lane to left side in

continuous pendulum-type movement. Defendant’s motorcycle was also leaning from sideto side. Officer stopped Defendant to check on his welfare. After stop, Officer detectedstrong odor of alcohol, bloodshot eyes, and slurred speech. Defendant took and failed allbut one SFST. His blood-alcohol content was above legal limit. Court held that the factfinder could properly determine that the officer had a reasonable basis to stop Defendant todetermine if he needed assistance.

16

State v. Urioste, 2002-NMSC-023, 132 N.M. 592. “A police officer cannot forcibly stop an individual forpurposes of investigation merely on the basis of an ‘inchoate and unparticularized suspicion or ‘hunch’’ thatcriminal activity may be afoot. Rather, the officer must look at the ‘totality of the circumstances-the wholepicture.’ The officer must be able to form a ‘reasonable suspicion, based on objective facts’ that theindividual in question ‘is, or is about to be, engaged in criminal activity.’ The level of suspicion requiredfor an investigatory stop ‘is considerably less than proof of wrongdoing by a preponderance of the evidence.’ A reasonable suspicion of criminal activity can arise for ‘wholly lawful conduct.’” Urioste, 2002-NMSC-023, ¶10. (Internal citations omitted).

State v. Galvan, 1977-NMCA-013, 90 N.M. 129. (Burglary/larceny case) Officers must have specificarticulable facts together with rational inferences from those facts that form the basis of reasonable suspicionin order to approach someone to investigate possible criminal behavior. “Unsupported intuition isinsufficient. An inarticulate hunch is insufficient.” Galvan, 1977-NMCA-013, 131.

State v. Williamson, 2000-NMCA-068, 129 N.M. 387. (Drug possession/paraphernalia case) “Under FourthAmendment standards, when a law enforcement officer makes a lawful stop, the officer may conduct aninvestigation reasonably related to the circumstances that gave rise to the officer’s reasons for thestop...Hence, when an officer investigating a traffic violation has a reasonable and articulable suspicion thatthe driver is impaired, the officer may detain the driver to investigate the officer’s suspicions. The officer’sinvestigation, of course, is limited to a reasonable inquiry that is designed to satisfy the officer’s reasonablesuspicions. Moreover, the officer’s investigation of any reasonable suspicion must proceed diligently.” Williamson, 2000-NMCA-068, ¶8. (Internal citations omitted).

State v. Munoz, 1998-NMCA-140, 125 N.M. 765. (Drug case) An officer may stop vehicles for specific,articulable safety concerns. “The subjective belief of the officer does not in itself affect the validity of thestop; it is the evidence known to the officer that counts, not the officer’s view of the governing law...If hisobservations provided reasonable grounds to believe that another statute was being violated, or that thevehicle constituted a safety hazard, the stop was valid, regardless of his incorrect understanding of the law.” Munoz, 1998-NMCA-140, ¶9.

FACTS: Officer pulled a vehicle over for a cracked windshield which he believed was asafety violation. Court determined that a cracked windshield could render a vehicleunsafe to drive. However, no determination was made by the trial court as towhether the officer’s observation of the cracked windshield provided reasonablegrounds to believe that the crack rendered the vehicle unsafe to drive. Caseremanded to trial court to make that determination.

State v. Brennan, 1998-NMCA-176, 126 N.M. 389. “A lawful investigatory stop may be made on reasonablesuspicion of an offense even though the defendant cannot ultimately be convicted of that offense.” Brennan,1998-NMCA-176, ¶12.For a conviction for careless driving, “the State must prove that the driving occurred on a highway as anelement of the offense...A parking lot, whether private or public, does not fall within [the definition of“highway” under NMSA 1978, §66-1-4.8(B)] because it is not generally open to the use of the public as amatter of right for the purpose of travel.” Brennan, 1998-NMCA-176, ¶¶6-7.FACTS: Defendant stopped for careless driving because he was spinning his wheels, kicking up dust,

and speeding through a parking lot. After Officer made contact, he observed a strong odorof alcohol, bloodshot watery eyes, and slurred speech. Defendant took and failed SFSTs. BAC showed 0.09. Court found RS that Defendant was violating traffic laws.

17

State v. Anaya, 2008-NMCA-020, 143 N.M. 431, abrogated in part by State v. Dopslaf, 2015-NMCA-098,cert. denied, (No. 35, 450, Aug. 25, 2015). Court evaluates “two factors to determine whether a stop wasreasonable: (1) whether the stop was justified at its inception and (2) whether continued detention wasreasonably related in scope to the original circumstances justifying the stop.” Anaya, 2008-NMCA-020, ¶6. When an officer is mistaken about the law, the stop will not be upheld unless, based on facts known to theofficer, he could have stopped the defendant for violation of some other law. Anaya, 2008-NMCA-020, ¶15. Different from Munoz and Brennan because here, there were no other facts or testimony to support aviolation of another law or to support reasonable suspicion on other grounds.NOTE: This holding regarding mistake of law only applies when doing an analysis under the NMConstitution. For a Fourth Amendment analysis, Dopslaf is the binding precedent.FACTS: Officer stopped Defendant for failure to signal under NMSA 1978, §66-7-325 (2008), which

requires “other traffic may be affected.” No other traffic on roadway. After making contact,Defendant showed signs of intoxication and was arrested for DWI. Court found no RS.

State v. Hubble, 2009-NMSC-014, 146 N.M. 70. It is not fatal to reasonable suspicion if an officer makesa mistake of law when he makes a traffic stop. Courts will still look objectively to the totality of thecircumstances surrounding the officer’s decision to make the traffic stop in order to determine if the officerhad reasonable suspicion. Hubble, 2009-NMSC-014, ¶28. Court held that this was not a mistake of law casein that the Defendant did violate the turn signal statute.FACTS: Officer was driving in opposite direction of Defendant. After Officer had already passed

Defendant, Defendant did not use turn signal. Upon contact, Officer noticed odor ofalcohol, bloodshot watery eyes, and slurred speech. Defendant was acting in slow,impaired, disoriented manner. Defendant swayed upon exit from vehicle and losing balance. Defendant took and failed SFSTs. BAC showed 0.12/0.10. Court held there was RS.

State v. Apodaca, 1991-NMCA-048, 112 N.M. 302, abrogated on other grounds by State v. Gomez, 1997-NMSC-006, 122 N.M. 777. “A reasonable suspicion may be a mistaken one.” Apodaca, 1991-NMCA-048,303.

FACTS: Officer stopped Defendant for seat belt violation because the shoulder harnesses ofthe driver and front seat passenger were dangling from the ceiling. Court held that,regardless of whether Officer knew that the lap belt could be detached from theshoulder harness, it was reasonable for him to believe that someone who permittedthe shoulder harness to dangle free was not wearing his lap belt either. Court foundRS to justify the initial stop.

State v. Harrison, 2008-NMCA-107, 144 N.M. 651. “We therefore hold that [the officer] had authority tostop Defendant on the Navajo Reservation to investigate the traffic offense he observed off the NavajoReservation and to determine if Defendant was a member of the Navajo Nation.” Harrison, 2008-NMCA-107, ¶11. “‘Consent is an exception to the Fourth Amendment probable cause and reasonable suspicionrequirements that police often rely on to investigate suspected criminal activity.’” Harrison, 2008-NMCA-107, ¶13. (Internal citations omitted).

FACTS: Officer observed Defendant speeding and attempted to stop him. Defendant didn’tstop and proceeded onto the Navajo Reservation, where he eventually stopped. Until Defendant stopped, Officer didn’t know whether Defendant was a member ofthe Navajo Nation.

State v. Herrera, 2010-NMCA-006, 147 N.M. 441. “An individual has no reasonable expectation of privacyin his license plate number or vehicle identification number.” Herrera, 2010-NMCA-006, ¶1. An officer’scheck of a license plate is not a search under the Fourth Amendment, and therefore, no reasonable suspicionof criminal activity is required. Herrera, 2010-NMCA-006, ¶1.

18

State v. Harbison, 2007-NMSC-016, 141 N.M. 392. (Drug case) “...Under the Fourth Amendment, thereis no seizure and, thus, no requirement for reasonable suspicion until the individual actually submits to ashow of authority...An individual’s flight may be properly considered in determining the existence ofreasonable suspicion unless that flight can be considered unlawfully provoked.” Harbison, 2007-NMSC-016,¶2.

State v. Lyon, 1985-NMCA-082, 103 N.M. 305. “Where there are reasonable grounds supporting awarrantless arrest for the commission of a misdemeanor, the arrest is not invalidated because the officer gavethe wrong reasons for the arrest; the proper misdemeanor charge must, however, be known to the officer atthe time of the arrest.” Lyon, 1985-NMCA-082, 307.

FACTS: Defendant drove his vehicle in the mall parking lot just before midnight. APD hadparked the Batmobile there for convenience. At that hour, only police units andDefendant were in the parking lot. Defendant drove close to the Bat twice, and eachtime, Officer saw an open beer bottle between Defendant’s legs. Officer stoppedDefendant and observed slurred speech and bloodshot watery eyes and smelled amoderate odor of alcohol coming from his person. Court found that the evidencewas sufficient to induce a reasonably cautious person to believe that aninvestigatory stop of Defendant’s vehicle was appropriate.

State v. Jacquez, 2009-NMCA-124, 147 N.M. 313. Court held that officer’s observation of an obstructedregistration sticker, in violation of state statute, provided reasonable suspicion for traffic stop.FACTS: Officer passed Defendant’s vehicle while driving in opposite direction and noticed a cracked

windshield. Officer made a U-turn and followed Defendant. While driving behindDefendant, Officer saw registration stick was blocked by license plate frame.

State v. Aguilar, 2007- NMCA-040, 141 N.M. 364. Officer was on patrol at 2 a.m. and noticed Defendant’smoving vehicle because it didn’t appear to have a license plate. When he got closer, he noticed a temporarydealer tag in the right rear window. The tag was a paper dealer tag and not a driveout tag for a newlypurchased vehicle. Officer couldn’t read the tag, but it appeared to be valid on its face. In Officer’sexperience, temporary dealer tags are frequently stolen or misused, and he suspected Defendant was misusingthe tag. Officer stopped Defendant’s vehicle, asked Defendant to produce a driver’s license, and asked himwhy he was driving the vehicle. Prior to making the stop, Officer didn’t notice anything else unusual andhad no reason for the stop. “These facts are not sufficient to support the type of particularized reasonablesuspicion, regarding the specific individual detained, that is required to justify a traffic stop.” Aguilar, 2007-NMCA-040, ¶10. “When the officer testified, he admitted that the temporary plate was valid on its face andthat he had no specific knowledge regarding Defendant’s use of the vehicle. The officer agreed that the onlything Defendant ‘did wrong’ was to drive a vehicle with a temporary demonstration plate at 2 a.m. Thesefacts alone do not support an inference that Defendant was engaged in misuse of the temporarydemonstration plate...Thus, the officer’s suspicion that Defendant had committed or was committing aviolation of law was not reasonable.” Aguilar, 2007- NMCA-040, ¶10.

State v. Candace S., 2012-NMCA-030. “...[W]e hold that an officer may administer FSTs if the officer hasdeveloped independent reasonable suspicion that would support the extension of the traffic stop to conductthe FSTs. There is a ‘compelling public interest in eradicating DWI occurrences and the potentially deadlyconsequences’ of that crime...[W]e must weigh this compelling interest against the intrusion of FSTs thatassess the physical performance of a suspected drunk driver. In our estimation, such an intrusion iswarranted if the investigating officer has reasonable, articulable facts upon which to base a suspicion thatthe driver in question may be impaired.” Candace S., 2012-NMCA-030, ¶18.

19

State v. Hicks, 2013-NMCA-056. “This case presents the question of whether an officer’s knowledge thatthe registered owner of a vehicle has a revoked license provides reasonable suspicion to stop the vehiclewhen the officer makes no effort to determine, prior to the stop, whether the driver of the vehicle is theregistered owner...In State v. Candelaria, which was decided after the district court’s decision in this case,we held that a stop effected on the basis of similar information did not violate the United States Constitutionbecause it was supported by reasonable suspicion. We now hold that the same result is warranted under theNew Mexico Constitution.” Hicks, 2013-NMCA-056, ¶1. (Internal citations omitted). “In this case, theofficer stopped Defendant’s vehicle after learning that the license of the registered owner of the vehicle hadbeen revoked. The officer did not have a subjective hunch that Defendant was breaking the law; rather, hehad a particularized suspicion that Defendant was breaking the law by driving with a revoked license. Theofficer could have been incorrect; he could have discovered that Defendant was not the registered owner andwas not otherwise breaking the law. But, as we noted in Candelaria, and we believe equally applicable undera state constitutional analysis, ‘[t]he concept of reasonable suspicion has always embraced a certain degreeof uncertainty.’” Hicks, 2013-NMCA-056, ¶16. “In this case, we believe that it would potentially jeopardizelegitimate law enforcement interests to require police officers to determine, prior to effecting a traffic stop,whether the driver of a vehicle matches the basic description of the registered owner.” Hicks, 2013-NMCA-056, ¶17. “We agree with the State that the best and least intrusive way for the officer to confirm or dispelhis suspicion that the driver of the vehicle he observed had a revoked license was through an investigatorytraffic stop.” Hicks, 2013-NMCA-056, ¶18. “We conclude that, in this circumstance, the result under theNew Mexico Constitution is the same as under the United States Constitution. Like the officers inCandelaria, the officers here ‘possessed reasonable suspicion to believe that [Defendant’s] vehicle, as wellas its occupant...were subject to seizure.’ Accordingly, the stop of Defendant’s vehicle did not violate theNew Mexico Constitution.” Hicks, 2013-NMCA-056, ¶19. (Internal citations omitted).

State v. Yazzie, 2016-NMSC-______, (No. 34, 866, Jun. 30, 2016). “In this case, where the evidentiaryrecord demonstrates that close to ninety percent of vehicles reflecting an ‘unknown’ compliance status inMVD records are in fact uninsured in violation of the law, we hold that an officer who learns that the MVDrecords for a particular vehicle indicate an ‘unknown’ compliance status has constitutionally reasonablesuspicion to stop the vehicle and investigated further.” Yazzie, 2016-NMSC-______, ¶2. “‘Reasonablesuspicion depends on the reliability and content of the information possessed by officers.’ Information anofficer accesses from a government database is objective in that it is not subject to the officer’s bias, but itmust also be reliable” Yazzie, 2016-NMSC-______, ¶24. (Internal citations omitted). “In the absence ofany evidence in a particular case that the records cannot be reasonably relied on, we conclude that NewMexico’s comprehensive statutory and regulatory scheme to maintain and make available to law enforcementup-to-date records of financial responsibility compliance justifies an officer’s investigatory stop on the basisof a determination that MVD records reflect an ‘unknown’ compliance status. We therefore agree with theapproach taken by the Tenth Circuit in Cortez-Galaviz and would not place the burden on the State to callwitnesses in each case to establish the significance of the ‘unknown’ compliance status.” Yazzie, 2016-NMSC-______, ¶29. “It was objectively reasonable for [the officer] to suspect Defendant was operating anuninsured vehicle in violation of the law when the database indicated the compliance status was unknownto the MVD. If [the officer’s] suspicion was particularized, the stop for further investigation ‘to verify orquell that suspicion’ was constitutionally justified.” Yazzie, 2016-NMSC-______, ¶30 (citing from State v.Sewell, 2009-NMSC-033, ¶13).

FACTS: Officer ran Defendant’s license plate in computer. Officer learned that Defendant’sinsurance status was “unknown,” and Officer stopped Defendant. Court found thatthe stop was justified under the U.S. and N.M. Constitutions. The MVD statusreport showed an “unknown” compliance status provided reasonable suspicion that for the particular vehicle Defendant was driving was uninsured in violation of thelaw.

20

State v. Tarin, 2014-NMCA-080. “No evidence, other than evidence of a posted speed limit, is required toestablish the validity of a speed limit. Nothing in Section 66-7-301 requires the State to provide any evidenceaddressing how a posted speed limit was established or adopted. The statutory scheme strongly indicatesthat the Legislature did not intend that evidence of the underlying engineering survey and traffic investigationbe a required element in nearly every case involving a speed limit violation below seventy-five miles perhour. Nothing in the statute directly imposes Defendant’s additional element for a posted speed limitviolation.” Tarin, 2014-NMCA-080, ¶7. “..[W]e interpret the Legislature’s intent underlying Section 66-7-301 to establish a prima facie case for a speeding violation where the State presents evidence that the speedlimit was posted on a visible sign along the roadway, giving drivers proper notice of the designated speedlimit, and a driver exceeds the posted speed limit.” Tarin, 2014-NMCA-080, ¶8.

State v. Scharff, 2012-NMCA-087. Deputy initiated a traffic stop of Defendant’s vehicle after observing herexit from a parking lot and stop on, not before, a sidewalk area adjacent to the parking lot prior to enteringthe roadway. Deputy determined that Defendant’s conduct was a violation of §66-7-346. On that basis,Deputy made a u-turn, activated his emergency lights, and initiated a traffic stop. Upon contact withDefendant, Deputy observed a strong odor of alcohol coming from the vehicle. Deputy administered fieldsobriety tests and arrested Defendant for DWI and failure to stop before emerging from an alley or privatedriveway. Court concluded that “the location where Defendant was observed stopping her vehicle was nolonger merely a parking lot but a driveway, as that term is defined in Section 66-1-4.14(K), that containeda sidewalk area.” Scharff, 2012-NMCA-087, ¶15. “It makes little sense that the Legislature intended Section66-7-346 to protect pedestrians crossing on sidewalks near ‘alleys, driveways, and buildings’ but not toprotect pedestrians using sidewalks in the path of vehicle leaving parking lots...To conform with theLegislature’s intent, we conclude that Section 66-7-346 was intended to encompass the circumstances in thiscase. Deputy Roberts did not commit a mistake of law in determining that Defendant violated Section 66-7-346.” Scharff, 2012-NMCA-087, ¶16.

State v. Simpson, 2016-NMCA-_______, (No. 34,488, May 19, 2016). “As in all cases in the search andseizure context, the ultimate question is whether [the officer’s] conduct was objectively reasonable underthe totality of the circumstances confronting him.” Simpson, 2016-NMCA-_______, ¶10. “A police officermay approach and detain a person to investigate possible criminal behavior, even if there is no probablecause to make an arrest, ‘if the officer is aware of specific articulable facts, together with rational inferencesfrom those facts, that, when judged objectively, would lead a reasonable person to believe criminal activityoccurred or was occurring...’Whether an investigatory detention is justified by reasonable suspicion dependson the totality of the circumstances, including ‘the content of information possessed by the police and itsdegree of reliability.’” Simpson, 2016-NMCA-_______, ¶11. (Internal citations omitted). “An investigatorydetention is a seizure subject to the Fourth Amendment’s reasonableness requirement. ‘‘Reasonableness...depends on a balance between the public interest and the individual’s right to personalsecurity free from arbitrary interference by law officers.’’ The reasonableness of an investigatory detentionis determined under an objective standard: ‘Would the facts available to the officer warrant the officer, asa person of reasonable caution, to believe the action taken was appropriate[?]’ In determiningreasonableness, we ‘avoid bright-line, per se rules’ and ‘consider the facts of each case.’” Simpson, 2016-NMCA-_______, ¶13. (Internal citations omitted).

FACTS: Officer dispatched to restaurant after caller reported a “parked DWI in the parkinglot,” described the subject vehicle as a “dark blue Plymouth” with partial licenseplate of “Y820.” Caller also reported that male subject had entered restaurant, waspassed out in bathroom, and smelled of alcoholic beverage. Male got up, leftrestaurant, got into dark blue Plymouth, and moved car from one space to another,almost striking several other vehicles in parking lot. Officer arrived within minutesof dispatch and saw dark blue Plymouth with very dark tinted windows and licenseplate of LKY820. Court found officer’s conduct reasonable and justified.

21

Failure to Maintain Traffic Lane - NMSA 1978, §66-7-317

U.S. v. Harmon, 742 F.3d 451 (10th Cir. 2014). “...[W]e conclude that under the facts of the instant case,Officer Lucero could have had a reasonable suspicion of impairment...We take it as factual that the officerobserved the vehicle weaving and, in one instance, crossing the fog line with the front and rear passengerwheels. We also note that there is no evidence in the record indicating difficult driving conditions or adverseweather that could have explained Mr. Harmon’s driving errors. The combination of these facts justifies astop based on concern of impairment under New Mexico law.” Harmon, 742 F.3d 451, 458.

FACTS: Officer observed Defendant’s vehicle weaving within his lane, and at one point, histires crossed over outer white line before coming back into lane. Officer said hedidn’t regard the movement as unsafe, but thought touching the fog line was aviolation of 66-7-317. He also wondered if Defendant might be intoxicated orfatigued. Court noted that district court had found two justifications for the stop:RS of violation of lane statute and RS of DWI or fatigue. Court said that while itcouldn’t forecast how the NMSC would apply the lane statute, it agreed that Officerhad RS to stop Defendant’s vehicle on suspicion of impairment under NM law.

U.S. v. Bassols, 775 F.Supp.2d 1293 (D.N.M. 2011) (non-precedential). “...[T]he Court concludes that theword ‘lane’ as used in [66-7-317] does not include the line or stripe that divides a lane of traffic from anotherlane or the line or stripe that separates a lane from the shoulder of the road. That is, the Court will apply a‘bright line’ standard that a driver who drives on the line or stripe dividing a lane of traffic from another laneor on the line or stripe the separates a lane from the shoulder has failed to drive ‘as nearly as practicableentirely within a single lane.’” Id. at 1296. “Under the plain language of [66-7-317], a driver who does notdrive ‘entirely within a single lane’ has failed to comply with the statute. Because Section 66-7-317 alsorequires that a driver ascertain that it is safe to move from a lane prior to moving from the lane, it is clear thatthe purpose of the statute is to promote roadway safety.” Id. at 1300. “Thus, the only way to construeSection 66-7-317 without reaching a result that permits two vehicles to occupy the same physical space isto conclude that the ‘single lane’ contemplated by the New Mexico legislature encompasses only that portionof the roadway that is between the lines or stripes that demarcate the ‘single lane.’ Because the lane endsat the point that the lane marker begins, a driver who drives on a lane marker has necessarily failed to driveentirely within a single lane. While Bassols was stopped for driving on the solid stripe that separated his laneof traffic from the shoulder of the road, not on the line between two traveling lanes, this distinction does notalter the Court’s conclusion. If a lane does not include the center lane marker of a two lane [sic] highwayor the lane marker dividing two traveling lanes going in the same direction, then it cannot include the lanemarker between the lane and the shoulder. And, just as a vehicle driving on the line between two lanes couldcollide with another vehicle driving on that same line, a vehicle driving on the stripe between the lane andthe shoulder could collide with a vehicle parked on the shoulder. The Court therefore concludes that NewMexico courts would interpret Section 66-7-317 to prohibit a driver from driving on the lane markers thatdivide a lane from the shoulder or from another lane.” Id. at 1301.

FACTS: Officer noticed Defendant’s vehicle veer toward outer edge of right lane, almoststriking solid stripe dividing right lane from shoulder, and then veer back to lefttowards and very close to dashed line dividing left and right lanes. Officer then sawDefendant’s vehicle veer back to right and drive for a few seconds onto and on solidstripe dividing right lane from shoulder. Officer certain that tires of Defendant’svehicle went onto solid stripe, Officer unsure of whether tires crossed over stripeonto shoulder. He could see vehicle go onto stripe, but could not see how far acrossstripe Defendant’s vehicle went.

22

State v. Jamon, 2012 WL 2890685 (N.M. Ct. App. 2012) (non-precedential). “The district court was correctin vacating Defendant’s conviction for failing to maintain his lane under the case law construing Section 66-7-317(A)...Nevertheless, the fact that Defendant’s vehicle was weaving back and forth created reasonablesuspicion that Defendant was in violation of Section 66-7-317(A) and/or NMSA 1978, Section 66-8-102(A)(2010) (stating that ‘[i]t is unlawful for a person who is under the influence of intoxicating liquor to drivea vehicle within in state.’).” Jamon, 2012 WL 2890685, *2. “Defendant’s otherwise erratic driving behaviorimplicated Section 66-7-317(A) even where Defendant could not be convicted of violating it because therewere no other vehicles around.” Jamon, 2012 WL 2890685, *2. “Defendant’s erratic driving also implicatedSection 66-8-102(A). ‘Thus,...there were facts available to [the o]fficer...that would warrant a person ofreasonable caution to believe the stop was appropriate.’” Jamon, 2012 WL 2890685, *2 (citing from Statev. Brennan, 1998-NMCA-176, ¶10, 126 N.M. 389).

FACTS: Officer observed Defendant’s vehicle cross over centerline to the left. Defendant’svehicle then turned back to right and hit shoulder line. It then turned back to left,touched center line, and then turned back to right and “did the same thing.” WhenOfficer observed Defendant’s vehicle, there were not other vehicles around. Defendant cited for failure to maintain traffic lane.

U.S. v. Herrell, 41 Fed.Appx. 224 (10th Cir. 2002) (non-precedential). “We find no error in the districtcourt’s determination that the initial stop of the van in which Defendant was a passenger was reasonable.” Id. at 228. “Finding that Deputy Menefee was also ‘concerned about the condition of the driver as evidencedby the driver’s violation’ of N.M. Stat. Ann. §66-7-317, the district court concluded that considering thetotality of the circumstances, Deputy Menefee had reasonable articulable suspicion that a traffic violationhad occurred or was occurring. We agree.” Id. at 228. “At issue is not whether the van violated N.M. Stat.Ann. §66-7-317 but whether Deputy Menefee had a reasonable, articulable suspicion that a traffic violationhad occurred or was occurring. Not only did Officer Menefee observe the van move onto or cross the centerline twice within a short distance, but there was no apparent reason for the movement, suggesting that themovement was not intentional, following the driver’s ascertainment that the movement could be made withsafety, but was unintentional, suggesting that the driver might be impaired by alcohol or drugs or was sleepy. The time was sometime around 1:30 a.m., suggesting that the latter was a reasonable possibility. Indeed, asthe district court found, ‘the officer articulated on the witness stand that he was concerned about whether thedriver was impaired by alcohol or drugs or was sleepy, in which case he posed a danger not only to othertraffic that might be on the highway but also to the occupants of the vehicle. There being no other apparentexplanation of why the van twice crossed into or over the center lane and into the lane for oncoming trafficand given the time of day, it was reasonable, considering the totality of the circumstances, for DeputyMenefee to conclude that a violation of N.M. Stat. Ann. §667-317 and/or a statute prohibiting the operationof a motor vehicle while impaired had occurred or was occurring.” Id. at 229-230.

FACTS: Officer saw co-Defendant’s vehicle cross over double yellow line dividing highwayand then return to its lane of travel two times. Highway was straight and no othertraffic in view. Weather clear and no apparent road condition that would havecaused co-Defendant to swerve. Officer concluded that co-Defendant might beimpaired or sleepy, which led vehicle to drift or move over center lane and intowestbound lane. Officer stopped co-Defendant to investigate. Officer later citedco-Defendant for violation of 66-7-317.

23

State v. Lucero, 2013 WL 4516412 (N.M. Ct. App. 2013) (non-precedential). “In this case, the officerspecifically testified that there were no other vehicles around when Defendant’s vehicle’s tires were observedcrossing and touching the outside lane line. Although the officer might have had a reasonable suspicion thatDefendant was not checking in order to ascertain whether it was safe to drift onto the shoulder three times,Archibeque indicates that Section 66-7-317(A) is not intended to cover situations where the person drivinga vehicle unintentionally lets the vehicle stray from its lane when there is no other traffic that it might eithersideswipe or collide with. Accordingly, where the officer saw no other traffic near Defendant’s vehicle, hedid not have an objectively reasonable basis to suspect that Defendant had violated Section 66-7-317(A) byhis manner of driving.” Lucero, 2013 WL 4516412, *3. “In this case, however, the officer testified that hepulled Defendant over due to concerns about possible impairment, not just a suspicion that Defendant hadviolated Section 66-7-317(A)...The officer’s testimony could support the reasonableness of the stop and thedetention might be proper if the facts known to the officer provided an objectively reasonable suspicion thatDefendant was violating some other statute. But the State was required to actually present and preserve thisargument in the district court in order to have it reviewed by this Court on appeal. In this case, the Statefailed to make this argument to the district court.” Lucero, 2013 WL 4516412, *3. (Internal citationsomitted).

FACTS: Officer observed Defendant’s vehicle’s tires cross over outer lane line that separateslane from shoulder three separate times. Officer also saw Defendant move to edgeof lane so that his vehicle’s tires touched lane line twice. Officer’s observationsoccurred over 2.5-mile span. Officer testified that he pulled Defendant overbecause, if a driver crosses the outside lane once, it might just be due to momentaryinattention, but once a driver has crossed the outside lane line two or three times ina short period of time, then there is a reason to be concerned about impairment.

City of Farmington v. Fordyce, 2011 WL 6016937 (N.M. Ct. App. 2011) (non-precedential). “We concludethat the plain language of [66-7-317] does not make touching or crossing the center line a per se violationof the statute. Rather, the statute only imposes liability on a driver who fails to maintain a single lane whenit is practicable to maintain that lane and unsafe to move from the lane.” Fordyce, 2011 WL 6016937, *3. “Because Defendant in this case did not violate [66-7-317], the determinative question is whether theofficer’s observation of Defendant’s driving provided reasonable grounds to believe that Defendant shouldstill be stopped for investigative purposes. Therefore, the officer had reasonable suspicion for the stop onlyif the turn was unsafe and maintaining the line was practicable, or Defendant was otherwise engaged inerratic driving that needed further investigation.” Fordyce, 2011 WL 6016937, *4. (Internal citationsomitted). “Even viewing the facts in the light most favorable to the City, nothing in the record indicates thatDefendant was otherwise driving erratically or the circumstances required an investigatory stop. The officerdid not observe any traffic violations or erratic driving for the one-half mile that he followedDefendant...Additionally, the officer explained the his observation of the right turn was the sole reason hestopped Defendant, and he admitted that he would have been less likely to stop Defendant if he had seen thevehicle turning at 10:30 a.m., as opposed to 1:17 a.m.” Fordyce, 2011 WL 6016937, *4. “In the instant case,the arresting officer made a mistake of law, and no other factual basis was presented by the officer that wouldjustify the need for an investigatory stop of Defendant’s vehicle.” Fordyce, 2011 WL 6016937, *4. “Wehold that the officer did not have a reasonable suspicion to stop and detain Defendant or to conduct aninvestigatory stop of his vehicle.” Fordyce, 2011 WL 6016937, *5.

FACTS: Officer followed Defendant’s truck for one-half mile and didn’t observe any trafficviolations until he saw Defendant’s vehicle veer to left prior to making wide rightturn. During right turn, Officer believed Defendant’s truck crossed into other laneof traffic in violation of 66-7-317. As a result, Officer stopped Defendant’s truck.

24

Archibeque v. Homrich, 1975-NMSC-066, 88 N.M. 527. “Sections 64-18-8 and -16 [renumbered in 1978and now embodied in 66-7-317] supra require all motorists drive on the right hand side of the road exceptin certain instances. This the defendant, at least for part of the final 347 feet, failed to do. Whom thelegislature sought to protect is not explicitly stated; however, it is reasonable to assume that it is the motoringpublic in general, including passengers such as the plaintiff. The harm sought to be prevented by the statutesapparently is head-on collisions or sideswiping the opposite moving traffic. It is doubtful that the statutecould have been intended by the legislature to apply to a situation such as this.” Archibeque, 1975-NMSC-066, 532.

FACTS: Driver’s vehicle ran off west side of highway. Traveled on the shoulder, returnedto highway, crossed over northbound traffic lane and onto east shoulder, andplunged into arroyo. Then it returned to highway and left east side, went airborne, and traveled along the east edge of pavement before plunging into arroyo androlling.

Aragon v. Speelman, 1971-NMCA-161, 83 N.M. 285. “We fail to find anywhere in the record any evidenceor any inference which would lead to a conclusion that defendant was proceeding in violation of [64-18-16 which was renumbered in 1978 and is now embodied in 66-7-317] at the time of the change of lane. At thetime of the change of lane by defendant-driver the record shows that the defendant-driver was approximatelytwo to three hundred yards from the decedent and that decedent was in the outside lane and that the insidelane was unobstructed. Further, the record reveals there was no other vehicular traffic in the general areaat the time of the accident.” Aragon, 1971-NMCA-161, 287. “There is no evidence that defendant-drivercould not safely change lanes when she did.” Aragon, 1971-NMCA-161, 288.

FACTS: Defendant changed lanes 200-300 yds. before point of impact. Plaintiff wanted juryto be instructed that if it found that Defendant had violated 64-18-16 (renumberedin 1978 and now embodied in 66-7-317), then such conduct was negligence per se. Court refused to give that instruction.

State v. Salas, 2014-NMCA-043, cert. denied, (No. 34, 569, Mar. 28, 2014).“We hold that under the totalityof the circumstances, after observing his erratic driving, the officers lawfully stopped Defendant based onthe traffic offenses they observed and to investigate whether he was impaired and a danger on the road.” Salas, 2014-NMCA-043, ¶15. “Nothing in the record indicates that Defendant ascertained that hismovements could be made with safety, that he was conscious of or focused on safety or risk, or that hiscondition was such that he would not continue to drive erratically...The officers had legitimate andreasonable suspicion that lane and illegal turn-related traffic offenses occurred. Officer Gonzales hadlegitimate and reasonable suspicion of impairment due to Defendant’s erratic driving. And nothing in therecord indicates that the officers had any reason to believe that Defendant’s behavior could be justified byany existing circumstance...We are persuaded that, in the balance, and under the totality of circumstances,the stop advanced the public interest well over the minimal intrusion into Defendant’s liberty interest. Salas,2014-NMCA-043, ¶15.

FACTS: Defendant’s vehicle crossed over dashed lines on road. Then he made sudden leftturn from far left lane into driveway without turn signal. While making turn,Defendant’s vehicle crossed over other southbound lane, median, and bothnorthbound lanes. Defendant’s vehicle then failed to maintain traffic lane and madeleft turn from far right lane. Officer testified that there was no apparent reason forDefendant’s driving behavior. Defendant given warning for violation of 66-7-317. Defendant argued no RS because he caused no danger by his actions. Court heldofficers had reasonable suspicion that one or more traffic offenses had occurred.

25

Mistaken Belief

State v. Eden, 1989-NMCA-038, 108 N.M. 737. The basis for reasonable suspicion may be a mistaken one. The reasonable but mistaken belief of the officer that the snowmobile was a motor vehicle is not a sufficientbasis for invalidating an otherwise valid arrest. Eden, 1989-NMCA-038, 743.

State v. Munoz, 1998-NMCA-140, 125 N.M. 765. A stop may be valid if the officer’s observations providereasonable grounds to believe a statute is being violated or that the vehicle constitutes a safety hazard, evenif the officer has an incorrect understanding of the law. Eden, 1989-NMCA-038, 108 N.M. 737, ¶9. BUTsee State v Anaya, (in Reasonable Suspicion section), which was distinguished from this case.

FACTS: Officer pulled a vehicle over for a cracked windshield, which he believed was asafety violation. Court determined that a cracked windshield could render a vehicleunsafe to drive. However, no determination was made as to whether Officer’sobservation provided reasonable grounds to believe that the crack rendered thevehicle unsafe to drive. Case remanded to trial court to make that determination.

State v. Candelaria, 2011-NMCA-001, 149 N.M. 125. “The standard of reasonable suspicion does notrequire that an officer exclude all possible innocent explanations of the facts and circumstances.” Candelaria, 2011-NMCA-001, ¶14. “As the situation develops, officers may expand an investigation toanswer any new reasonable and articulable suspicions that arise during the course of their lawful activity.” Candelaria, 2011-NMCA-001, ¶9. “When police officers observe a vehicle registered to an owner whoselicense has been suspended, it is reasonable to conclude that the driver is the registrant–that is, until officersbecome aware of facts to contradict their assumption.” Candelaria, 2011-NMCA-001, ¶15. “As long as thevehicle has been validly stopped, for whatever reason, police may always ask the driver to produce [ theirdriver’s license, registration, or insurance documents]. In fact, as long as the original stop is supported byreasonable suspicion, police may legally request such documents even after the original suspicionevaporates.” Candelaria, 2011-NMCA-001, ¶18.

FACTS: Officers notice two vehicles in a parking lot: a Monte Carlo driven by Defendantand a truck. One officer recognizes the Monte Carlo from previous investigationand follows it. License plate search shows the owner is Michael Martinez and thathis license is suspended. Concluding that Martinez was the driver, Officer pulls thecar over. He then realizes that Defendant, not the owner, is the driver. Officer asksDefendant for license, registration, and proof of insurance. Court found that,because the officers had no facts to contradict that Martinez was the driver, they hadRS to make traffic stop.

State v. Anaya, 2008-NMCA-020, 143 N.M. 431, abrogated in part by State v. Dopslaf, 2015-NMCA-098,cert. denied, (No. 35, 450, Aug. 25, 2015). When an officer is mistaken about the law, the stop will not beupheld unless, based on facts known to the officer, he could have stopped the defendant for violation of someother law. Anaya, 2008-NMCA-020, ¶15.NOTE: This holding regarding mistake of law only applies when doing an analysis under the NMConstitution. For a Fourth Amendment analysis, Dopslaf is the binding precedent.FACTS: Officer stopped Defendant for failure to signal under NMSA 1978, §66-7-325 (2008), which

requires “other traffic may be affected.” No other traffic on roadway. Court found thatOfficer’s vehicle did not constitute other traffic and found that the stop wasn’t justifiedbecause there were no facts to support an actual violation of law.

26

State v. Dopslaf, 2015-NMCA-098, cert. denied, (No. 35, 450, Aug. 25, 2015). “In Heien, the Supreme Courtheld that an officer’s reasonable mistake of law could support a finding of reasonable suspicion to conducta lawful traffic stop under the Fourth Amendment. The Court cautioned that ‘[t]he Fourth Amendmenttolerates only reasonable mistakes, and those mistakes–whether of fact or of law–must be objectivelyreasonable.’ Thus, the officer’s subjective understanding of the law is immaterial, and ‘an officer can gainno Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.’” Dopslaf,2015-NMCA-098, ¶10 (citing from Heien v. North Carolina, ____ U.S. _____, 135 S. Ct. 530 (2014)). NOTE: The court’s review was limited to analysis under the Fourth Amendment ONLY.

FACTS: Officer saw Defendant make U-turn across painted center median and stoppedhim for violating §66-7-319. Court found that, assuming it was a mistake of law,the facts were sufficient to make the stop reasonable and that Officer had RS.

27

Police Team Concept

State v. Lyon, 1985-NMCA-082, 103 N.M. 305. “Under [the police team] qualification, a member of thepolice-team may arrest for a misdemeanor committed in the presence of another member of the police-teamwhen their collective perceptions are combined to satisfy the presence requirement.” Lyon, 1985-NMCA-082, 308. “...[We] think it a proper extension of the rationale of the misdemeanor arrest rule first adoptedin Cave v. Cooley, that when a misdemeanor is committed in the presence of a police officer and informationof such is promptly placed on the police radio or otherwise communicated and a description of themisdemeanant given, the arrest of the misdemeanant by another police officer within a reasonable time ofreceipt of the information is valid.” Lyon, 1985-NMCA-082, 309.

FACTS: Defendant drove through parking lot just before midnight. Officer #1 saw a beerbottle between Defendant’s legs. Officer #1 stopped Defendant and observed signsof intoxication. Because Officer #1 couldn’t transport Defendant, he radioed forhelp. Officer #2 responded. Officer #1 explained the situation to Officer #2. Officer #2 conducted DWI investigation and arrested Defendant.

State v. Warren, 1985-NMCA-095, 103 N.M. 472. “Generally, ‘police-team’ cases fall into one of twocategories: first, situations in which the police officer must call in assistance for such reasons as inherentdanger or criminal flight and, second, situations involving cooperative police efforts.” Warren, 1985-NMCA-095, 477. “In both of these instances, the ‘team qualification’ should satisfy the presencerequirement of warrantless misdemeanor arrests.” Warren, 1985-NMCA-095, 477. “‘It is a general rule thatonce an officer has the right to arrest without a warrant for a misdemeanor or breach of the peace committedin his presence he must do so as soon as he reasonably can, and if he delays for purposes disassociated withthe arrest or for such a length of time as to necessarily indicate the interposition of other purposes, he cannotarrest without a warrant...’ Legitimate justifications for delaying the arrest are such exigencies as timeelapsed in the pursuit of the offender or time spent summoning assistance.” Warren, 1985-NMCA-095, 478.

FACTS: APD received a tip that a man was selling drugs at a park. Park placed undersurveillance. Officer #1 observed Defendant and saw no criminal activity. Investigation ceased. Days later, Officer #1 called Officer #2 to tell himDefendant’s name and placed Officer #2 on surveillance of the park. Officer #2saw Defendant arrive at the park and then drink beer. Officer #2 called Officer #1. Officer #1 drove to the park and saw Defendant drinking. Officer #1 went to thecounty road department. Defendant left the park followed by Officer #2. He droveto an apartment and stayed for 30 mins. Defendant left and went to the countyyards. Officer #1 arrested Defendant there. Officer #2 wasn’t directly involved inthe arrest. Court held that the police team qualification could not be applied andthat in the absence of some exigency or cooperative police effort, the exceptionshouldn’t be invoked. The delay to arrest Defendant was unreasonable, and therewere no exigencies that would justify Officer #1's failure to obtain a warrant.

State v. Ochoa, 2008-NMSC-023, 143 N.M. 749. “We find that generally, an officer may reasonably relyon information from another officer that a crime has been or is being committed.” Ochoa, 2008-NMSC-023,¶21.

State v. Mitchell, 2010-NMCA-059, 148 N.M. 842. “Our cases do not say that the police-team concept willapply only if there is a need for cooperative work. Rather, the concept will apply if there has beencooperative work.” Mitchell, 2010-NMCA-059, ¶8.

28

Consensual Stop

State v. Figueroa, 2010-NMCA-048, 148 N.M. 811. “‘A consensual encounter has been defined as simplythe voluntary cooperation of a private citizen in response to a non-coercive questioning by a law enforcementofficial.’ During a consensual encounter, a reasonable person feels that he or she is free to leave. If theencounter became consensual, then the Fourth Amendment is not implicated.” Figueroa, 2010-NMCA-048,¶28. “We consider ‘all of the circumstances surrounding the incident’ to determine whether ‘a reasonableperson would have believed that he [or she] was not free to leave.’ In making this determination, we consider‘(1) the conduct of the police, (2) the person of the individual citizen, and (3) the physical surrounding ofthe encounter.’” Figueroa, 2010-NMCA-048, ¶29. “In deciding whether an initial, valid detention hasevolved into a consensual encounter, we observe that ‘[t]he transition between detention and a consensualexchange can be so seamless that the untrained eye may not notice that it has occurred.’ While an officer’sstatement that a suspect is free to go is a relevant consideration, it does not automatically make the encounterconsensual thereafter.” Figueroa, 2010-NMCA-048, ¶30. “When faced with the question whether an initialseizure has changed into a consensual encounter, we require a showing that the nature of the encounter hastruly changed.” Figueroa, 2010-NMCA-048, ¶32.

FACTS: Officer went to the house to investigate call. A truck pulled up, and Defendant wentinside the house. Defendant came out. Officer asked Defendant why he was thereand asked for ID. Officer returned ID. Officer then asked if Defendant had anyweapons on him. Defendant said no. Officer asked to pat down Defendant. Defendant agreed. Officer told Defendant that he was free to leave, but that hewanted to do a weapons check. Officer found drugs on Defendant. Court foundthat the seizure hadn’t changed to a consensual encounter because Officer toldDefendant he was free to leave and then continued his questioning. There was noshowing that the encounter had changed to a consensual one given that there wasno break in time or location, no request for permission to continue with questioning,and nothing indicating that the encounter had changed to anything remotelyconsensual.

State v. Walters, 1997-NMCA-013, 123 N.M. 88. “The test for determining if a police-citizen encounter isconsensual depends on whether, under the totality of the circumstances surrounding the encounter, ‘thepolice conduct would have communicated to a reasonable person that the person was not free to decline theofficers’ requests or otherwise terminate the encounter.’ The test is an objective one based upon a reasonableperson standard, not the subjective perceptions of the particular individual...In making this determination,the court should consider the sequence of the officer’s actions and how a reasonable person would perceivethose actions. ‘Only when the officer, by means of physical force or show of authority, has in some wayrestrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.’” Walters, 1997-NMCA-013, ¶12.

FACTS: Officer saw Defendant turn onto an unlit, rural road and followed him. Officerengaged his emergency equipment, and Defendant pulled over. Court held thatthere was no show of authority to bring about the stop, and Officer didn’t usephysical force to restrain Defendant’s liberty. There was evidence in the record thatDefendant was free to continue driving. Court found that the trial court could havereasonably decided that Officer wasn’t conducting an investigation at the pointwhen he activated his lights and approached Defendant. Court held that no seizureoccurred before Officer spoke to Defendant.

29

State v. Affsprung, 2004-NMCA-038. “We hold that an ordinary vehicle stop for a traffic violation with aconcomitant investigation in which the officer requests both the driver’s and the passenger’s identificationin connection with the violation and nothing more than a generalized concern about officer safety is a seizurewithin the Fourth Amendment as to the passenger whose identification is obtained.” Affsprung, 2004-NMCA-038, ¶18. “With respect to a driver, a traffic stop is a seizure under the Fourth Amendment...‘Apolice officer may stop a vehicle if he has an objectively reasonable suspicion that the motorist has violateda traffic law.’” Affsprung, 2004-NMCA-038, ¶9. (Internal citations omitted). “Following a valid stop, fora traffic violation, an officer may lawfully continue with a de minimis detention for inquiry into mattersreasonably related to the circumstances that initially justified the stop and to check out license, registration,and insurance...[A]n officer may identify the person with whom he is dealing ‘to protect himself...fromdanger, to accurately prepare any required reports concerning his contact with the motorist, and to allow theofficer to adequately respond to allegations of illegal conduct or improper behavior.’ Further, the officer isalso authorized to run a wants and warrants check in relation to the driver to ensure the continued validityof the documents provided.” Affsprung, 2004-NMCA-038, ¶10. (Internal citations omitted). “Continueddetention of a driver, or detention of passengers, for other investigative purposes, including investigatoryquestioning, requires reasonable suspicion, proven through specific articulable facts, that the driver orpassenger has been or is engaged in a criminal activity other than the initial traffic violation. A driver orpassenger may also be detained under certain circumstances out of an officer’s concern about weapons.” Affsprung, 2004-NMCA-038, ¶11. (Internal citations omitted). “Whether a police-citizen encounterinvolving an officer’s inquiry or request is consensual usually centers on an analysis of whether the citizenis free to refuse to respond and free to leave.” “A driver should not, and, we believe, does not feel free torefuse to respond to an officer’s inquiry about license, registration, and insurance. A driver whoseidentification information is taken by an officer to the patrol car should not, and, we believe, does not feelfree to leave. Even though the officer may be pleasant, the encounter is not consensual.” Affsprung, 2004-NMCA-038, ¶14. (Internal citations omitted). “An officer’s request for, and obtaining of, a passenger’sidentifying information in the context of an ordinary traffic stop, where the officer has requested andobtained the driver’s identification and documentation, can only reasonably be viewed as an integral part ofthe officer’s ongoing investigatory detention...A passenger in a vehicle stopped because of a traffic-relatedviolation is situated in a vehicle that is not free to be driven away and is not free to drive the vehicle away. Because of this and because of the fact that the driver is not free to refuse an officer’s request foridentification and documentation, we do not believe that a reasonable passenger would feel free to leave thearea and refuse the officer’s request for identification.” Affsprung, 2004-NMCA-038, ¶15.

30

Miranda Warnings

State v. Wilson, 2007-NMCA-111, 142 N.M. 737. “We hold that the test for determining that a defendantis in Miranda custody is not one employed by using a Fourth Amendment analysis of investigatory detentionversus de facto arrest. The test is whether the defendant’s freedom of movement is restrained by formalarrest or of the degree associated with a formal arrest.” Wilson, 2007-NMCA-111, ¶1. “Miranda warningsare required when a person is (1) interrogated while (2) ‘in custody.’” Wilson, 2007-NMCA-111, ¶1. “Indetermining whether a person is in Miranda custody while being interrogated, ‘the court must apply anobjective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movementof the degree associated with a formal arrest. Because the test is objective, the actual subjective beliefs ofthe defendant and the officer as to whether the defendant is in custody are irrelevant. Rather, the ‘inquiryis how a reasonable man in the suspect’s position would have understood his situation.’” Wilson, 2007-NMCA-111, ¶14. “...Generally, routine traffic stops do not usually require that the detainee be givenMiranda warnings before interrogation. However...‘[i]f a motorist who has been detained pursuant to atraffic stop thereafter is subjected to treatment that renders him ‘in custody’ for practical purposes, he willbe entitled to the full panoply of protections prescribed by Miranda.’” Wilson, 2007-NMCA-111, ¶20.

FACTS: Officer received dispatch of possible drunk driver. He saw a vehicle matchingdescription and pulled behind it at a residence. Officer approached vehicle andheard engine turn off. Defendant sitting in driver’s seat. Upon contact, Officer sawsigns of intoxication. Officer instructed Defendant to get out. Defendant stayed inthe vehicle for several minutes, and when he got out, he staggered towards thehouse. He did not stop when Officer asked. Officer followed Defendant. Defendant turned and faced Officer in a defensive posture with clenched fists. Officer began to handcuff Defendant. Officer got one cuff on and then Defendantpulled away. Officer put the other cuff on forcibly and put Defendant in the backof his unit. Court held that a reasonable person in Defendant’s position wouldbelieve that he was restrained to a degree associated with a formal arrest and wastherefore in Miranda custody.

State v. Greyeyes, 1987-NMCA-022, 105 N.M. 549. “The constitutional right of an accused person to beinformed of his right to remain silent attaches once an investigation has reached an accusatory stage and hasfocused on the accused. The accusatory stage has been equated with being in custody, under indictment orbeing interrogated. However, the right to the administration of Miranda warnings does not attach until anaccused is in custody or deprived of freedom in a significant way. General on-the-scene questioning or othergeneral questioning of citizens in the fact-finding process is not considered custodial, and a person in thesecircumstances need not be informed of his rights before being questioned. The mere fact that police mayhave focused their investigation on a defendant at the time of the interview does not raise questioning to alevel required to warrant Miranda warnings.” Greyeyes, 1987-NMCA-022, 551.

FACTS: Officer came on scene and observed Defendant and another man standing to the leftof a truck high-centered on a rail post. Defendant admitted that he was the ownerof the truck and driver. Defendant stated that he had left the store, gotten into hisvehicle, and driven straight into the railing. Court held that nothing in the recordwould suggest that Officer’s questioning was anything more than purelyinvestigatory and was not in a custodial situation. Thus, Miranda did not attach. Officer approached the only two people present to ask general investigatoryquestions. Defendant answered the questions voluntarily.

31

Armijo v. State Transp. Dep’t., 1987-NMCA-052, 105 N.M. 771. “The roadside questioning of a motoristpursuant to a routine traffic stop does not constitute custodial interrogation. Miranda warnings are requiredafter a traffic stop only if defendant can ‘demonstrate that, at any time between the initial stop and the arrest,he was subjected to restraints comparable to those associated with a formal arrest.’ The fact that the motoristmay temporarily feel that he is not free to leave does not render him ‘in custody’ for purposes of Miranda.” Armijo, 1987-NMCA-052, 773. “The privilege against self-incrimination is not necessarily implicatedwhenever a person is compelled in some way to cooperate in developing evidence which may be used againsthim. As a general rule, questions by officers during their investigations are not subject to Miranda warningsif the defendant is not in custody. On the scene questioning does not require advisement of Miranda rights. A field sobriety test, in and of itself, does not violate this privilege.” Armijo, 1987-NMCA-052, 773-774.

FACTS: Defendant stopped by an off-duty motorcycle officer when Officer observed himrun a red light. Officer observed a strong odor of alcohol on Defendant’s breath andsaw Defendant had to hold onto the truck for balance. Defendant admitted todrinking two beers. Officer conducted FSTs and Defendant failed them. Officersuspected Defendant was DWI and asked Defendant to get back in the truck so hecould get someone to transport Defendant. Second officer arrived, approachedDefendant, and asked him about his drinking. Defendant admitted to five beers. Second officer asked Defendant to perform FSTs, which he again failed. Defendantwas placed under arrest. Defendant’s breath test showed 0.15. Court held thatDefendant not in custody and did not need to be given Miranda.

Berkemer v. McCarty, 468 U.S. 420 (1984). “Two features of an ordinary traffic stop mitigate the dangerthat a person questioned will be induced ‘to speak where he would not otherwise do so freely.’ First,detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority ofroadside detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s lightflashing behind him, are that he will be obliged to spend a short period of time answering questions andwaiting while the officer checks his license and registration, that he may then be given a citation, but that inthe end he most likely will be allowed to continue on his way. In this respect, questioning incident to anordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, andin which the detainee often is aware that questioning will continue until he provides his interrogators theanswers they seek. Second, circumstances associated with the typical traffic stop are not such that themotorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed,uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue acitation, in combination, exert some pressure on the detainee to respond to questions. But other aspects ofthe situation substantially offset these forces. Perhaps, most importantly, the typical traffic stop is public,at least to some degree. Passersby, on foot or in other cars, witness the interaction of officer and motorist.” Id. at 437-438. “The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that personstemporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” Id. at 440.

FACTS: Officer saw Defendant’s car weaving. Officer stopped Defendant and askedDefendant to get out. When Defendant got out, he had difficulty standing. Officertold him that he was going to be given a citation and that his freedom to leave thescene was terminated. Defendant performed SFSTs, admitted to drinking andsmoking marijuana, and was placed under arrest. Court found Defendant not incustody, and no Miranda warnings should have been at any point prior to whenDefendant was placed under arrest.

32

State v. Snell, 2007-NMCA-113. “...Miranda warnings are only necessary if a defendant is in police custodyat the time of the interrogation; they are not required for non-custodial interrogations.” Snell, 2007-NMCA-113, ¶10. “...[O]ur Supreme Court has held that the bare fact that a defendant is questioned while in a policevehicle is in itself insufficient to constitute a custodial interrogation.” Snell, 2007-NMCA-113, ¶17.

FACTS: Defendant was involved in a head-on collision with another car. When Officer #1arrived on-scene, he spoke to the witnesses. Defendant was physically escortedaway by Officer #2 and told he would be arrested for obstruction if he kept talkingto the witness. Officer #2 brought Defendant to Officer #1's unit, placed him in theback seat with the doors closed and locked, and left him there. After Officer #1 wasdone talking to the witness, he went to his unit and began questioning Defendant. Court found under these circumstances, such questioning triggered Defendant’sright to receive Miranda warnings.

Pennsylvania v. Muniz, 496 U.S. 582 (1990). “Custodial interrogation for purposes of Miranda includes bothexpress questioning and words or actions that, given the officer’s knowledge of any special susceptibilitiesof the suspect, the officer knows or reasonably should know are likely to ‘have...the force of a question onthe accused’ and therefore be reasonably likely to elicit an incriminating response.” Id. at 601. “[Theofficer’s] dialogue with [the Defendant] concerning the physical sobriety tests consisted primarily ofcarefully scripted instructions as to how the tests were to be performed. These instructions were not likelyto be perceived as calling for any verbal response and therefore were not ‘words or actions’ constitutingcustodial interrogation...The dialogue also contained limited and carefully worded inquiries as to whether[the Defendant] understood those instructions, but these focused inquiries were necessarily ‘attendant to’ thepolice procedure held by the court to be legitimate. Hence, [the Defendant’s] incriminating utterances duringthis phase of the videotaped proceedings were ‘voluntary’ in the sense that they were not elicited in responseto custodial interrogation.” Id. at 603-604. “We conclude that Miranda does not require suppression ofstatements [the Defendant] made when asked to submit to a breathalyzer examination. [The officer] read[the Defendant] a prepared script explaining how the test worked, the nature of Pennsylvania’s ImpliedConsent Law, and the legal consequences that would ensue should he refuse. [The officer] then asked [theDefendant] whether he understood the nature of the test and the law and whether he would like to submit tothe test. [The Defendant] asked [the officer] several questions concerning the legal consequences of refusal,which [the officer] answered directly, and [the Defendant] then commented upon his state of inebriation.” Id. at 604.

State v. Bullcoming, 2008-NMCA-097, 144 N.M. 546. “The prosecution may use a defendant’s pre-arrestsilence for impeachment purpose without infringing upon his or her Fifth Amendment rights.” Bullcoming,2008-NMCA-097, ¶7.

FACTS: Defendant arrested after he ran into another truck. Driver of other truck noticedsigns of intoxication. Defendant left the scene and police brought him back about10 minutes later. Defendant testified that he hadn’t been drinking for 10 hours and

that he left the scene because he had an outstanding warrant. According toDefendant, he walked to a creek and encountered some men drinking vodka. Hedrank vodka with them for about 30 minutes and was then picked up by police. During closing, prosecutor commented that Defendant never told the officers aboutdrinking vodka with the others. He argued that if Defendant had, they would havebeen able to investigate and ask the others if Defendant had been drinking withthem. Court concluded that the prosecutor was commenting on Defendant’s pre-arrest silence.

33

State v. Wright, 1993-NMCA-153, 116 N.M. 832. “[A] defendant’s statements refusing to submit toreasonable physical evidence tests are admissible because they are not the product of impermissible coercion,not because statutes authorize their admission.” Wright, 1993-NMCA-153, 835. “...[We] hold thatDefendant’s right to be free from self-incrimination was not violated by admission of the evidence that sherefused to take a field sobriety test.” Wright, 1993-NMCA-153, 835-836. “We hold that the admission ofevidence relating to Defendant’s refusal to take a field sobriety test did not violate the Fifth Amendment orArticle II, Section 15, of the New Mexico Constitution.” Wright, 1993-NMCA-153, 836.

City of Rio Rancho v. Mazzei, 2010-NMCA-054. “‘Miranda warnings are designed to protect an accused’s[F]ifth [A]mendment right against self-incrimination.’ New Mexico courts have, however, consistently heldthat physical evidence, such as breath, blood, fingerprints, etc., is excluded from the scope of thatprotection.” Mazzei, 2010-NMCA-054, ¶25. (Internal citations omitted).

34

Custody (When is Defendant in Custody)

State v. Greyeyes, 1987-NMCA-022, 105 N.M. 549. “General on-the-scene questioning or other generalquestioning of citizens in the fact-finding process is not considered custodial, and a person in thesecircumstances need not be informed of his rights before being questioned.” Greyeyes, 1987-NMCA-022,551.

FACTS: Officer came on scene and observed Defendant and another man standing to the leftof a truck high-centered on a rail post. Officer questioned them. Court held thatnothing in the record would suggest that Officer’s questioning was anything morethan purely investigatory and was not in a custodial situation. Officer approachedthe only two people present to ask general investigatory questions. Defendantanswered the questions voluntarily.

Armijo v. State Transp. Dep’t., 1987-NMCA-052, 105 N.M. 771. “The roadside questioning of a motoristpursuant to a routine traffic stop does not constitute custodial interrogation...The fact that the motorist maytemporarily feel that he is not free to leave does not render him ‘in custody’ for purposes of Miranda.” Armijo, 1987-NMCA-052, 773.

FACTS: Defendant stopped by an off-duty motorcycle officer after running a red light. Officer observed signs of intoxication and conducted FSTs. Officer suspectedDefendant was DWI and asked Defendant to get back in the truck so he could getsomeone to transport Defendant. Second officer arrived and had Defendant performFSTs. Defendant arrested. Court held that Defendant was not in custody.

State v. Wilson, 2007-NMCA-111, 142 N.M. 737. “In determining whether a person is in Miranda custodywhile being interrogated, ‘the court must apply an objective test to resolve the ultimate inquiry: was therea formal or restraint on freedom of movement of the degree associated with a formal arrest. Because the testis objective, the actual subjective beliefs of the defendant and the officer as to whether the defendant is incustody are irrelevant. Rather, the ‘inquiry is how a reasonable man in the suspect’s position would haveunderstood his situation.’” Wilson, 2007-NMCA-111, ¶14. “...Generally, routine traffic stops do not usuallyrequire that the detainee be given Miranda warnings before interrogation. However,...‘[i]f a motorist whohas been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him ‘in custody’for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda.’” Wilson,2007-NMCA-111, ¶20.

FACTS: Officer received dispatch of possible drunk driver. He saw a vehicle matchingdescription and pulled behind it at a residence. Officer approached vehicle andheard engine turn off. Defendant was sitting in driver’s seat. Upon contact, Officersmelled an odor of alcohol and noticed that Defendant had bloodshot, watery eyesand slurred speech. Officer instructed Defendant to get out. Defendant stayed inthe vehicle for several minutes, and when he got out, he held onto the vehicle forbalance, swayed back and forth, and staggered towards the house. He did not stopwhen Officer asked. Officer followed Defendant. Defendant turned and facedOfficer in a defensive posture with clenched fists. Officer began to handcuffDefendant. Officer got one cuff on and then Defendant pulled away. Officer putthe other cuff on forcibly, at which time Defendant dropped to his knees. Officerput Defendant in the back of his unit. Court held that a reasonable person inDefendant’s position would believe that he was restrained to a degree associatedwith a formal arrest and was therefore in Miranda custody.

35

Berkemer v. McCarty, 468 U.S. 420 (1984). “Two features of an ordinary traffic stop mitigate the dangerthat a person questioned will be induced ‘to speak where he would not otherwise do so freely.’ First,detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority ofroadside detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s lightflashing behind him, are that he will be obliged to spend a short period of time answering questions andwaiting while the officer checks his license and registration, that he may then be given a citation, but that inthe end he most likely will be allowed to continue on his way...Second, circumstances associated with thetypical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, theaura of authority surrounding an armed, uniformed officer and the knowledge that the officer has somediscretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee torespond to questions. But other aspects of the situation substantially offset these forces. Perhaps, mostimportantly, the typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars,witness the interaction of officer and motorist. This exposure to public view both reduces the ability of anunscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes themotorist's fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detainedmotorist typically is confronted by only one or at most two policemen further mutes his sense ofvulnerability. In short, the atmosphere surrounding an ordinary traffic stop is substantially less ‘policedominated’ than that surrounding the kinds of interrogation at issue in Miranda...” Id. at 437-439. “Thesimilarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detainedpursuant to such stops are not ‘in custody’ for the purposes of Miranda.” Id. at 440.

FACTS: Officer saw Defendant’s car weaving. Officer stopped Defendant and askedDefendant to get out. When Defendant got out, he had difficulty standing. Officertold him that he was going to be given a citation and that his freedom to leave thescene was terminated. Defendant performed SFSTs, admitted to drinking andsmoking marijuana, and was placed under arrest. Court found Defendant not incustody, and no Miranda warnings should have been at any point prior to whenDefendant was placed under arrest.

State v. Harbison, 2007-NMSC-016, 141 N.M. 392. “...[W]e conclude that under the Fourth Amendmentthere is no seizure and, thus, no requirement for reasonable suspicion until the individual actually submitsto a show of authority.” Harbison, 2007-NMSC-016, ¶2.

36

De Facto Arrest

State v. Hernandez, 1997-NMCA-006, 122 N.M. 809. “We acknowledge that it is difficult to pinpoint themoment in time when an investigatory stop becomes a de facto arrest because there is no bright-line test fordoing so. Instead, we must apply a balancing test in which the Court weighs ‘both the character of theofficial intrusion [on the person’s liberty] and its justification’” Hernandez, 1997-NMCA-006, ¶23. “OurSupreme Court has identified three factors to utilize when making this determination: length of the detention,place of the detention, and restriction on the defendant’s freedom of movement. Hernandez, 1997-NMCA-006, ¶24. “The significance of the intrusion, however, must be balanced against the weight of the‘government’s justification for the intrusion.’” Hernandez, 1997-NMCA-006, ¶25. “As soon as theinvestigation requires awaiting the development of circumstances off the scene, the validity of theinvestigatory stop becomes suspect.” Hernandez, 1997-NMCA-006, ¶25. “When a detention becomes a defacto arrest, a showing of probable cause is required to support it.” Hernandez, 1997-NMCA-006, ¶27.

FACTS: Defendant Terri Hernandez and her daughter were stopped at Border Patrolcheckpoint and allowed to pass. Border Patrol then received a tip that a personnamed Terri Hernandez might be traveling with cocaine. Defendant’s car waspursued on the highway. Defendant was then taken under police escort to thecheckpoint. Narcotics dogs failed to alert to the presence of drugs in Defendant’svehicle, and a search failed to produce any drugs or paraphernalia. Defendantdenied that she had drugs or knowledge of drugs. Defendant then was detained fortwo hours awaiting a female agent to perform a strip search. Court held that thedetention of Defendant constituted a significant intrusion, and it was reasonable forher to have felt deprived of her freedom during this period. Defendant’s continueddetention for almost two hours, under these circumstances, and while awaiting thearrival of a female agent, ripened into a de facto arrest. Defendant was arrested bythe time of the search of her person.

State v. Wilson, 2007-NMCA-111, 142 N.M. 737. “When an officer with reasonable suspicion but withoutprobable cause detains an individual in an unreasonable manner, the detention may amount to a de factoarrest, rather than an investigatory detention. Whether a stop is an investigatory detention or a de facto arrestis a question analyzed under the Fourth Amendment reasonableness inquiry.” Wilson, 2007-NMCA-111,¶18.

FACTS: Officer received a report from dispatch of a possible drunk driver. Officer saw avehicle that matched the description. He saw it pull off the road, lost sight of it fora few seconds, and then pulled behind it. Defendant sitting in the vehicle indriveway of a house. Officer approached the vehicle, and Defendant was in thedriver’s seat. Officer detected signs of intoxication and asked Defendant to get out. Defendant got out of the vehicle and staggered toward the house. Officer told himto stop, and Defendant did not. Officer followed Defendant, who turned and facedOfficer in a defensive posture with clenched fists. Officer began to handcuffDefendant, and Defendant pulled away. Officer elected to forcibly put the otherhandcuff on Defendant, and Defendant fell to his knees. Court held that the amountof force used by the Officer was reasonable under Fourth Amendment and did nottransform the stop into a de facto arrest.

37

State v. Werner, 1994-NMSC-025, 117 NM 315. “..A determination of whether the officer in this case madean illegal de facto arrest, or simply conducted a permissible detention, ultimately depends on whether hisactions were reasonable under Fourth Amendment standards. That reflects the fact that reasonableness inthis context requires the balancing of legitimate law enforcement interests against a defendant’s privacyrights...” Werner, 1994-NMSC-025, 317. “Although the back of a patrol car ‘is not an ideal location for thepurposes of an investigatory detention,’ detention in a patrol car does not constitute an arrest per se.” Werner, 1994-NMSC-025, 318.

FACTS: Camcorder missing from store. Employees identified Defendant and another manas carrying the camcorder in a brown knapsack and leaving in a Camaro. Officerwent to Defendant’s home, and he wasn’t there. As Officer leaving, he sawDefendant driving the Camaro and pulled him over. Defendant exited the Camaro,and Officer saw a brown knapsack in the car. Officer locked Defendant in the backseat of the patrol vehicle. Officer told Defendant he was being detained and werenot free to leave. Officer asked Defendant for permission to search the Camaro, andDefendant refused. Employees identified Defendant as the thief. About 45 minuteslater, Officer placed Defendant under arrest and searched the vehicle. Thecamcorder was found in the Camaro. Court held that detention of Defendant in alocked patrol vehicle for over 45 minutes prior to being arrested was a significantintrusion. Court based its conclusion on the length of time of detention, place ofdetention, and restriction on Defendant’s freedom of movement. A reasonableperson in Defendant’s position would have felt deprived of his freedom in asignificant way. Detention of Defendant in a locked patrol vehicle for a period ofover 30 minutes after the police had ample evidence to confirm their suspicions wasa de facto arrest.

State v. Flores, 1996-NMCA-059, 122 N.M. 84. “When a detention exceeds the boundaries of a permissibleinvestigatory stop, it become a de facto arrest requiring probable cause.” Flores, 1996-NMCA-059, ¶18.

FACTS: Sheriff’s office in Van Horn, Texas called Artesia Police with a tip from a localVan Horn informant. According to the tip, within the past hour to hour and a half,three vehicles left Van Horn together on their way to Artesia carrying marijuana. Informant described the vehicles as a white car with vinyl blue top, a purple or bluepickup truck with a camper shell, and a brown or maroon pickup truck with chromewheels. Officers drove to most direct route between Artesia and Van Horn andspotted two vehicles fitting description in the tip, a white car and maroon pickuptruck. Vehicles were stopped and about ten minutes later, Defendant drove by ina blue pickup truck matching the description of the third vehicle in the tip. Defendant stopped. Police searched all three vehicle and found no drugs. Narcoticsdogs failed to alert to the presence of any drugs. After about an hour at the roadsidesearch, the police then took the three vehicles and their drivers to a city warehouseto do a more comprehensive search of the vehicles. No drugs were found during thecomprehensive search. Court noted that Defendant was removed from the site ofthe initial stop and taken into a police car to a city warehouse. He was detainedthere for two to three more hours and was apparently handcuffed most of the timewhile police looked in vain for marijuana. Court held that this detention wasinvasive enough to constitute an illegal, de facto arrest.

38

Exceptions to the Misdemeanor Arrest Rule

Cave v. Cooley, 1944-NMSC-050, 48 N.M. 478. “‘It is well-established doctrine now throughout the UnitedStates that for a crime, which they have probable cause to believe is being committed in their presence,though it be a misdemeanor, duly authorized peace officers may make arrest without a warrant. The probablecause which will justify arrest for a misdemeanor without a warrant must be a judgment based on personalknowledge acquired at the time through the senses, or inferences properly to be drawn from the testimonyof the senses.***The courts very generally hold that an offense is committed within the presence of an officerwhen his senses afford him knowledge that such is the fact.***There must be a probable cause and areasonable foundation for the judgment of the officer that a crime is being committed.’” Cave, 1944-NMSC-050, 480. “‘A crime is committed in the presence of an officer when the facts and circumstances occurringwithin his observation, in connection with what, under the circumstances, may be considered as commonknowledge, give him probable cause to believe or reasonable grounds to suspect that such is the case.” Cave,1944-NMSC-050, 480.

State v. Warren, 1985-NMCA-095, 103 N.M. 472. “The rule in New Mexico is that a police officer maymake a warrantless misdemeanor arrest if the misdemeanor is committed in the officer’s presence. The arrestmust be based upon facts known to the officer at the time of the arrest.” Warren, 1985-NMCA-095, 475.

State v. Lyon, 1985-NMCA-082, 103 N.M. 305. “The misdemeanor arrest rule in New Mexico provides thata police officer may make a warrantless arrest for a misdemeanor offense if the misdemeanor is committedin the officer’s presence.” Lyon, 1985-NMCA-082, 308. “Under [the police team] qualification, a memberof the police-team may arrest for a misdemeanor committed in the presence of another member of the police-team when their collective perceptions are combined to satisfy the presence requirement. Lyon, 1985-NMCA-082, 308. “...[We] think it a proper extension of the rationale of the misdemeanor arrest rule firstadopted in Cave v. Cooley, that when a misdemeanor is committed in the presence of a police officer andinformation of such is promptly placed on the police radio or otherwise communicated and a description ofthe misdemeanant given, the arrest of the misdemeanant by another police officer within a reasonable timeof receipt of the information is valid.” Lyon, 1985-NMCA-082, 309.

NMSA 1978, §66-8-125(A). “Members of the New Mexico state police, sheriffs and their salaried deputiesand members of any municipal police force, may arrest without warrant any person: (1) present at the sceneof a motor vehicle accident; (2) on a highway when charged with theft of a motor vehicle; or (3) charged witha crime in another jurisdiction, upon receipt of a message giving the name or a reasonably accuratedescription of the person wanted, the crime alleged and a statement he is likely to flee the jurisdiction of thestate.”

NMSA 1978, §66-8-125(B). “To arrest without warrant, the arresting officer must have reasonable grounds,based on personal investigation which may include information from eyewitnesses, to believe the personarrested has committed a crime.”

NMSA 1978, §31-1-7. “Notwithstanding the provisions of any other law to the contrary, a peace officer mayarrest a person and take that person into custody without a warrant when the officer is at the scene of adomestic disturbance and has probable cause to believe that the person has committed an assault or a batteryupon a household member...”

39

City of Las Cruces v. Sanchez, 2009-NMSC-026, 146 N.M. 315. “Section 66-8-125 creates an exception tothis general rule by allowing officers to arrest ‘without a warrant any person...present at the scene of a motorvehicle accident.’” Sanchez, 2009-NMSC-026, ¶12. “Therefore, we hold that the Legislature intended toauthorize officers to arrest without a warrant individuals who either are or were present at the scene of amotor vehicle accident, when the arresting officer has developed reasonable grounds, through personalinvestigation, to believe the individual committed a crime. The Legislature did not intend to predicate thisauthority on whether the officer first encountered the individual at the accident scene. The arrest, however,must take place with reasonable promptness from the time of the accident. ‘The requirement of reasonablepromptness is designed to prevent too great an inroad on the rule requiring a warrant of arrest if practicable.’ Once the arresting officer’s investigation satisfies Section 66-8-125(B), the subsequent arrest of an individualpursuant to the officer’s investigation is valid if the arrest is made with reasonable promptness.” Sanchez,2009-NMSC-026, ¶¶15-16.

FACTS: Officers received report of accident. Occupants fled when officers got to the scene5-10 minutes later. Passenger found and said Defendant was driving. Officers ranlicense plate and found Defendant’s address. When they went to Defendant’s houselocated near the accident scene, they found him passed out on the floor. Court heldthat Defendant’s warrantless arrest was valid under 66-8-125, and the offense didn’tneed to be committed in the officers’ presence.

State v. Calanche, 1978-NMCA-007, 91 N.M. 390. “An officer has two immediate concerns upon arrivingat an accident scene [sic] care for the injured and traffic safety. Only after action is underway to meet theseimmediate concerns can the officer undertake to investigate the accident...We do not believe the Legislatureintended that a person involved in an accident could avoid a valid warrantless arrest by leaving the accidentscene before the officer’s investigation developed grounds to arrest that person. If the requirements of s 64-22-8.2(B) [now §66-8-125(B)] are met, a valid warrantless arrest may be made of a person present at thescene of the accident if the arrest is made either at the scene or at a place other than the accident scene if thearrest is made with reasonable promptness.” Calanche, 1978-NMCA-007, 393.

FACTS: Officer notified of accident at 7:12 p.m. and went to the scene. Defendant presentwhen Officer arrived, but left the scene to go to the hospital while Officer wasinvestigating. Officer went to hospital around 8:30 or 9:00 p.m. and stayed at thehospital about an hour. Defendant then arrested for DWI at the hospital. Courtfound that the warrantless arrest was valid under §64-22-8.2(B).

City of Santa Fe v. Martinez, 2010-NMSC-033, 148 N.M. 708. “...[We] hold that the misdemeanor arrestrule does not apply to DWI investigations and, accordingly, an investigating officer need not observe theoffense in order to make a warrantless arrest. Instead, the warrantless arrest of one suspected of committingDWI is valid when supported by both probable cause and exigent circumstances.” Martinez, 2010-NMSC-033, ¶16.

State v. Ochoa, 2008-NMSC-023, 143 N.M. 749. “We, therefore, recognize the misdemeanor arrest rule asa limited doctrine and apply it only to custodial arrests.” Ochoa, 2008-NMSC-023, ¶12. “For the purposesof the misdemeanor arrest rule, an investigatory stop is distinct from a custodial arrest.” Ochoa, 2008-NMSC-023, ¶13. “We agree that when an officer stops a car merely to issue a citation for a minor trafficviolation, that stop is an investigative detention not a custodial arrest and, therefore, does not invoke themisdemeanor arrest rule.” Ochoa, 2008-NMSC-023, ¶14.

40

Field Sobriety Tests

State v. Torres, 1999-NMSC-010, 127 N.M. 20. “...The results of HGN testing constitute scientific evidencethat must meet the standard of evidentiary reliability articulated in Alberico and Daubert.” Torres, 1999-NMSC-010, ¶30. Court cited rationale from other courts: “While most of the field sobriety tests are self-explanatory, HGN is not. When courts have taken judicial notice of the common physical manifestationsof intoxication, horizontal gaze nystagmus is not included. Horizontal gaze nystagmus is not just a symptomsuch as slurred speech or bloodshot eyes, which are commonly understood signs of intoxication...Thesignificance of the HGN observation is based on principles of medicine and science not readilyunderstandable to the jury.” Torres, 1999-NMSC-010, ¶31.

State v. Lasworth, 2002-NMCA-029, 131 N.M. 739. “Many individuals, including some judges, believe thatthe purpose of a field sobriety test is to measure driving impairment. For this reason, they tend to expect teststo possess ‘face validity,’ that is, tests that appear to be related to actual driving tasks. Tests of physical andcognitive abilities, such as balance, reaction time, and information processing, have face validity, to varyingdegrees, based on the involvement of these abilities in driving tasks; that is, the tests seem to be relevant ‘onthe face of it.’ Horizontal gaze nystagmus lacks face validity because it does not appear to be linked to therequirements of driving a motor vehicle. The reasoning is correct, but it is based on the incorrect assumptionthat field sobriety tests are designed to measure driving impairment. Driving a motor vehicle is a verycomplex activity that involves a wide variety of tasks and operator capabilities. It is unlikely that complexhuman performance, such as that required to safely drive an automobile, can be measured at roadside. Theconstraints imposed by roadside testing conditions were recognized by the developers of NHTSA’s SFSTbattery.” Lasworth, 2002-NMCA-029, ¶14. “Although the HGN FST has come to be widely known andwidely used subsequent to the enactment of the Motor Vehicle Code in 1978, the Legislature has notamended the Motor Vehicle Code to authorize a convictionFN4 based upon the results of non-chemical BACtests such as the HGN FST. FN4. Nothing in our discussion of the Motor Vehicle Code should beunderstood as foreclosing the use of the results of an HGN FST to establish probable cause for arresting amotorist or to establish ‘reasonable grounds’ for administering a chemical BAC test.” Lasworth, 2002-NMCA-029, ¶27.

Sanchez v. Wiley, 1997-NMCA-105, 124 N.M. 47. (Civil case). Plaintiff driving on a residential street. Defendant struck her vehicle while driving a backhoe. Two witnesses heard the crash, but didn’t see it. Plaintiff’s friend, a seventeen-year-old, confronted Defendant face-to-face after the accident and smelledalcohol on the Defendant. She also noticed that Defendant staggered and that his speech was slurred. Plaintiff’s friend said he had seen intoxicated people before and that, in his opinion, Defendant was drunk. Court held that the trial court could properly determine that Plaintiff’s friend’s testimony was admissibleunder Rule 11-701. He testified to his observations and that he had seen other people who were under theinfluence of alcohol. His opinion was rationally based on his perceptions and experience with intoxicatedpeople, was helpful, and the trial court didn’t abuse its discretion by admitting it.

State v. Sanchez, 2001-NMCA-109, 131 N.M. 355. “The State can use evidence of a driver’s refusal toconsent to the field sobriety testing to create an inference of the driver’s consciousness of guilt. [Thisinvestigating officer], or an objectively reasonable officer in his position, could logically infer fromDefendant’s refusal to consent to the field sobriety testing that Defendant knew he was driving under theinfluence of alcohol and that these tests might reveal his impairment.” Sanchez, 2001-NMCA-109, ¶9.

41

State v. Wright, 1993-NMCA-153, 116 N.M. 832. “...A Defendant’s right to be free from self-incriminationwas not violated by admission of the evidence that she refused to take a field sobriety test.” Wright, 1993-NMCA-153, 835-836.

State v. Harrison, 2008-NMCA-107, 144 N.M. 651. “In New Mexico, there is no implied consent law bywhich a driver consents to taking field sobriety tests. Therefore, a driver may refuse to perform field sobrietytests, although the refusal is admissible into evidence. In this regard, simply because a police officer requesta driver to perform field sobriety tests in the context of a traffic stop does not automatically transform therequest into a demand that precludes, as a matter of law, a finding of valid consent.” Harrison, 2008-NMCA-107, ¶13.

State v. Mitchell, No. 31,483, mem. op. at 4 (N.M. Ct. App. Jan. 5, 2012) (non-precedential). “Evidence ofDefendant’s unsatisfactory performance on the field sobriety tests was presented to illustrate his apparentinability to follow directions, maintain balance, and perform other simple tasks. These are commonly-understood features of intoxication that are probative of impairment.” Mitchell, No. 31,483, mem. op. at 4. UNPUBLISHED MEMORANDUM OPINION–MAKE SURE TO NOTE THIS WHEN CITING!

State v. Candace S., 2012-NMCA-030. “...[W]e hold that an officer may administer FSTs if the officer hasdeveloped independent reasonable suspicion that would support the extension of the traffic stop to conductthe FSTs. There is a ‘compelling public interest in eradicating DWI occurrences and the potentially deadlyconsequences’ of that crime...[W]e must weigh this compelling interest against the intrusion of FSTs thatassess the physical performance of a suspected drunk driver. In our estimation, such an intrusion iswarranted if the investigating officer has reasonable, articulable facts upon which to base a suspicion thatthe driver in question may be impaired.” Candace S., 2012-NMCA-030, ¶18.

Armijo v. State Transp. Dep’t., 1987-NMCA-052, 105 N.M. 771. Reasonable requests by officers to performFSTs do not rise to the level of custodial interrogation requiring Miranda warnings. Armijo, 1987-NMCA-052, 773. “A field sobriety test, in and of itself, does not violate [the privilege against self-incrimination].” Armijo, 1987-NMCA-052, 774.

42

State v. Anderson, 2014 WL 4293083 (N.M. Ct. App. 2014) (non-precedential). “We conclude that thearresting officer’s opinion based on the results of the SFSTs, to the extent it was supposedly administeredper his training and experience and scored according to the SFST methodology, was inadmissible non-scientific expert testimony. However, the arresting officer’s observations of Defendant’s behavior on thetests were properly used by the metropolitan court as evidence of Defendant’s behavior in support of itsconclusion that Defendant’s driving ability was impaired.” Anderson, 2014 WL 4293083, *1. “Themetropolitan court admitted Officer Valentino’s opinion that Defendant was impaired by alcohol based onthe administration of the SFSTs for a limited purpose, namely, as probable cause for his subsequent arrestof Defendant. As noted below, the tests, according to the officer’s testimony, were administered andinterpreted according to his experience and training. We conclude that this constitutes the application ofnon-scientific expertise.” Anderson, 2014 WL 4293083, *1. “Both the arresting officer and the metropolitancourt judge voiced the opinion that the results of the SFSTs, when administered as intended, are capable ofdirectly correlating with physical impairment from alcohol. We take this opportunity to reiterate that sucha correlation is false based on the literature that developed, explained, and validated the SFSTs’ use. However, the metropolitan court might legitimately draw conclusions from the testimony about Defendant’sperformance on the SFSTs based on simple lay observations of Defendant’s behavior.” Anderson, 2014 WL4293083, *1. “Officer Valentino’s testimony and the metropolitan court’s acceptance that the SFSTs aredesigned to show impairments amounts to no more than the ‘incorrect assumption that [the SFSTs] aredesigned to measure driving impairment’ that we specifically rejected in Lasworth. Because the officer didnot testify at all as to how he scored the clues Defendant exhibited, or how the scoring related to hisconclusion of impairment, his expertise was not properly used. His testimony did not reflect his training orcorrectly employ the specialized knowledge he possessed and is divorced from the basis of his expertise. Furthermore, he did not relate his general observations of Defendant’s conduct to any basis in commonknowledge of alcohol’s effects that he possessed, rendering his opinion based on his training irrelevant tosupport a general inference of impairment. Because this rendered the testimony unhelpful to the metropolitancourt, the officer’s opinion was unfounded, had little general value, and was [sic] properly admitted.” Anderson, 2014 WL 4293083, *4.

FACTS: Officer testified that he had been trained and was able to administer the SFSTsproperly to Defendant. He stated that he looked for the clues as he was trainedwhen he administered SFSTs to Defendant, but did not score them. Officer statedthat his opinion was based on his training, not experience common to the generalpublic, who could not score clues in the SFSTs according to the standardizedmethods he had been taught.

NOTE: This case has been included because it is possible that defense will make similar arguments in court. However, this case is an UNPUBLISHED MEMORANDUM OPINION and NOT binding precedent. Inaddition, it is somewhat contrary to other precedent. Just want you to be aware that this case is out there.

43

Probable Cause

State v. Sanchez, 2001-NMCA-109, 131 N.M. 355. “A police officer has probable cause when facts andcircumstances within the officer’s knowledge, or about which the officer has reasonably trustworthyinformation, are sufficient to warrant an officer of reasonable caution to believe that an offense is being

committed or has been committed.” Sanchez, 2001-NMCA-109, ¶6.FACTS: Defendant stopped at a roadblock. Officer noticed that Defendant had strong odor

of alcohol on his breath and bloodshot, watery eyes. Defendant said he consumedtwo beers that night. Defendant refused SFSTs saying, “I’m not going to donothing. Let’s go to jail.” Defendant arrested for DWI. Defendant was wearing aleg brace, but offered no explanation for refusing to do SFSTs. He only alluded toa knee problem after the officers patted him down and were in the process ofhelping Defendant into the patrol car. Court found PC based on the officer’sobservations of Defendant and inference that his refusal to take SFSTs was becausehe was DWI and that the tests may reveal his impairment.

State v. Salas, 1999-NMCA-099, 127 N.M. 686. (Drug case). “A police officer may make an arrest for amisdemeanor if the officer has probable cause to believe that an offense is being committed in his or herpresence. In ascertaining whether an offense is being committed in an officer’s presence, the officer maytake into account what the officer observes through use of any of his or her senses. Salas, 1999-NMCA-099,¶9. “Not only must the officer perceive through his or her senses that an offense is being committed, but theofficer must also have a reasonable ground to infer that the suspect is committing an unlawful act to meetthe probable cause requirement. Probable cause to justify a misdemeanor arrest exists when the facts andcircumstances as observed by the officer through the officer’s senses are sufficient to warrant an officer ofreasonable caution to believe that an offense is occurring.” Salas, 1999-NMCA-099, ¶10. “We judgereasonableness by an objective standard, mindful that probable cause requires more than a suspicion, but lessthan a certainty. The reasonable officer must have information to believe that criminal conduct probably,not positively, exists.” Salas, 1999-NMCA-099, ¶18.

State v. Jones, 1998-NMCA-076, 125 N.M. 556. “A police officer may arrest without a warrant any personwho is present at the scene of a motor vehicle accident if the arresting officer has ‘reasonable grounds, basedon personal investigation which may include information from eyewitnesses, to believe the person arrestedhas committed a crime.’” Jones, 1998-NMCA-076, ¶8. “Whether probable cause exists is a mixed questionof law and fact.” Jones, 1998-NMCA-076, ¶9.

FACTS: Defendant rear-ended another vehicle. Officer spoke to Defendant, who had astrong odor of alcohol on his breath, bloodshot and watery eyes, and slurred speech. Defendant swayed while talking to Officer and admitted to having two beers. Defendant took and failed SFSTs. Court held that Officer had reasonable groundsto believe that Defendant had been DWI.

State v. Hilliard, 1970-NMCA-039, 81 N.M. 407. “The substance of all the definitions of probable causeis a reasonable ground for belief of guilt.” Hilliard, 1970-NMCA-039, 409.

State v. Harrison, 2008-NMCA-107, 144 N.M. 651. “‘Consent is an exception to the Fourth Amendmentprobable cause and reasonable suspicion requirements that police often rely on to investigate suspectedcriminal activity.’” Harrison, 2008-NMCA-107, ¶13.

44

State v. Granillo-Macias, 2008-NMCA-021, 143 N.M. 455. “We hold that the smell of alcohol emanatingfrom Defendant, Defendant’s lack of balance at the vehicle, and the manner of Defendant’s performance ofthe FSTs constituted sufficient circumstances to give the officer the requisite objectively reasonable beliefthat Defendant had been driving while intoxicated and to proceed with BAC tests, and thus constitutedprobable cause to arrest Defendant.” Granillo-Macias, 2008-NMCA-021, ¶12.

FACTS: Defendant stopped at a roadblock. Officer smelled odor of alcohol from Defendant. Defendant was fumbling and slow to respond to Officer’s request to get out ofvehicle. Defendant held onto the door as he got out and kept his hand on the vehiclefor balance as he walked to the back of it. Defendant took four FSTs and performedpoorly on them.

State v. Ruiz, 1995-NMCA-098, 120 N.M. 534, abrogated on other grounds by State v. Martinez, 2007-NMSC-025, 141 N.M. 713. “Based on his observations of Defendant’s car weaving as it approached, OfficerByers had sufficient cause to stop Defendant. Officer Byers’ further observation that Defendant was weavingfor four blocks while the officer attempted to pull him over to the curb, combined with Defendant’s strongodor of alcohol, glassy eyes, and inability to perform all of the sobriety tests in a satisfactory fashion,provided probable cause for the arrest.” Ruiz, 1995-NMCA-098, 540.

State v. Eden, 1989-NMCA-038, 108 N.M. 737. “On these facts, we hold defendant’s arrest was valid underthe terms of the statute. Defendant was certainly an eyewitness to the accident in question. His admissionthat he had been driving the snowmobile involved in the accident and had been drinking at some point earlier,coupled with the officer’s testimony that he smelled a strong odor of intoxicating liquor on defendant’sbreath, and defendant’s apparent inability to pass the field sobriety tests, was sufficient to give the officerreasonable grounds to believe that defendant had committed the offense of driving while intoxicated. Moreover, this court has previously held that an appropriate officer may arrest a person who was present atthe scene of the accident, even though that person has left the scene, so long as the arrest takes place withina reasonable period of time after the accident.” Eden, 1989-NMCA-038, 743.

State v. Hernandez, 1980-NMCA-138, 95 N.M. 125. “Before defendant was arrested, he had driven the carseveral feet in the arresting officer’s presence, and the officer had smelled alcohol and noted defendant’sslurred speech. There was no lack of probable cause to arrest.” Hernandez, 1980-NMCA-138, 571.

State v. Trujillo, 1973-NMCA-076, 85 N.M. 208. “Defendant was arrested for driving while intoxicated. He had a strong smell of liquor on his breath immediately after the accident. There was a ‘half gone’ bottleof wine (which was 19% alcohol by volume) in the car. He had been driving the car. These circumstanceswarranted the officer, as a reasonable person, to believe that defendant had been driving while intoxicatedand provided probable cause for defendant’s arrest.” Trujillo, 1973-NMCA-076, 211.

State v. Lasworth, 2002-NMCA-029, 131 N.M. 739. “Nothing in our discussion of the Motor Vehicle Codeshould be understood as foreclosing the use of the results of an HGN FST to establish probable cause forarresting a motorist or to establish ‘reasonable grounds’ for administering a chemical BAC test.” Lasworth,2002-NMCA-029, ¶27 n.4.

Rule 11-104(A) NMRA. “The court must decide any preliminary question about whether a witness isqualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidencerules, except those on privilege.”

45

Implied Consent

NMSA 1978, §66-8-107(A). “Any person who operates a motor vehicle within this state shall be deemedto have given consent, subject to the provisions of the Implied Consent Act [66-8-105 NMSA 1978], tochemical tests of his breath or blood or both, approved by the scientific laboratory division of the departmentof health pursuant to the provisions of Section 24-1-22 NMSA 1978 as determined by a law enforcementofficer, or for the purpose of determining the drug or alcohol content of his blood if arrested for any offensearising out of the acts alleged to have been committed while the person was driving a motor vehicle whileunder the influence of an intoxicating liquor or drug.”

NMSA 1978, §66-8-107(B). “A test of blood or breath or both, approved by the scientific laboratory divisionof the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978, shall be administeredat the direction of a law enforcement officer having reasonable grounds to believe the person to have beendriving a motor vehicle within this state while under the influence of intoxicating liquor or drug.”

NMSA 1978, §66-8-108. “Any person who is dead, unconscious or otherwise in a condition rendering himincapable of refusal, shall be deemed not to have withdrawn the consent provided by Section 66-8-107NMSA 1978, and the test or tests designated by the law enforcement officer may be administered.”

NMSA 1978, §66-8-109(B). “The person tested shall be advised by the law enforcement officer of theperson’s right to be given an opportunity to arrange for a physician, licensed professional or practical nurseor laboratory technician or technologist who is employed by a hospital or physician of his own choosing toperform a chemical test in addition to any test performed at the direction of a law enforcement officer.”

NMSA 1978, §66-8-109(C). “Upon the request of the person tested, full information concerning the testperformed at the direction of the law enforcement officer shall be made available to him as soon as it isavailable from the person performing the test.”

NMSA 1978, §66-8-109(D). “The law enforcement agency represented by the law enforcement officer atwhose direction the chemical test is performed shall pay for the chemical test.”

NMSA 1978, §66-8-109(E). “If a person exercises his right under Subsection B of this section to have achemical test performed upon him by a person of his own choosing, the cost of that test shall be paid by thelaw enforcement agency represented by the law enforcement officer at whose direction a chemical test wasadministered under Section 66-8-107 NMSA 1978.”

State v. Ross, 2007-NMCA-126, 142 N.M. 597. Officer got call about possible drunk driver. Officer locatedand followed the vehicle in question. He saw Defendant commit several traffic violations and attempted topull him over. Defendant did not pull over. Defendant finally stopped his vehicle and was apprehended. Officer handcuffed Defendant and advised him of the ICA. Defendant acknowledged the advisory andagreed to a blood draw. Defendant was taken to the ER and was again advised of the ICA. Defendantacknowledged that he understood and requested an attorney. Officer told Defendant that he didn’t have theright to consult with an attorney under the ICA, and Defendant then agreed to the blood draw. Court foundthat the evidence supported the determination that Defendant did not refuse consent or refuse the blood drawand that there was sufficient evidence that Defendant’s request to speak to an attorney was not a refusal ofconsent or refusal to submit to the blood draw.

46

State v. Jones, 1998-NMCA-076, 125 N.M. 556. “...The purpose of [NMSA 1978, §66-8-109(B)] is toinform the person arrested of his or her right to arrange to have an independent chemical test performed bya person of his or her own choosing. Strict compliance with the statute is not required because words otherthan those used in the statute can convey the information required by the statute.” Jones, 1998-NMCA-076,¶19. “We hold that [NMSA 1978, §66-8-109] grants arrestees charged with DWI not only the right to choosewho analyzes their blood sample, but also the right to choose who draws their blood. In particular, we holdthat the language in subsections 66-8-109(B) (‘of his own choosing’) and (E) (‘performed upon him by aperson of his own choosing’) encompasses both what is done to the arrestee’s body, as well as what is donewith the blood once it has been drawn.” Jones, 1998-NMCA-076, ¶22. “Reading the entire statute, however,we conclude that our statute does not guarantee the arrestee an additional test will be performed, but onlythat the arrestee will be given a reasonable opportunity to arrange for an additional test. Our statute does notguarantee that the test will actually be performed by the person contacted...Without deciding whetheranything more than access to a telephone will ever be required, in this instance we hold that by denyingDefendant access to a telephone the police denied Defendant a reasonable opportunity to contact someoneof his own choosing to perform the blood test upon him.” Jones, 1998-NMCA-076, ¶25.

FACTS: Defendant rear-ended another vehicle. Officer arrived on scene and observed signsof intoxication. Defendant took and failed SFSTs and was arrested. Officerobserved the deprivation period and then read an Implied Consent Advisory posted. Advisory didn’t precisely mirror the language of the statute. Officer administeredtwo breath tests. After the tests, Defendant asked to speak to an attorney and for anindependent blood test. Officer requested a blood technician on contract with APD. Defendant also requested that he be able to call his own doctor because he wantedsomeone he knew to perform the blood draw. Officer never allowed Defendant touse the phone and made no calls on Defendant’s behalf. When APD bloodtechnician arrived, Defendant refused to allow him to draw blood. Court found thatthe purpose of the statute was not frustrated in any way by the notice Officer hadgiven and that the notice substantially complied with the statute. Court said that itwas clear that Defendant was denied a reasonable opportunity to contact his doctorbecause the Officer denied his request and denied him access to a phone. Anypossible prejudice to Defendant was cured by the dismissal of Agg portion of DWI.

Fugere v. State, 1995-NMCA-040, 120 N.M. 29. “A conditional consent is a refusal to take the [breathtest].” Fugere, 1995-NMCA-040, 34. “...We hold that under [the Implied Consent Act], a motorist cannotrefuse to take a chemical test of breath or blood designated by law enforcement and as provided by statutemerely because he believes such tests are unreliable.” Fugere, 1995-NMCA-040, 35. “...Under the Act,citizens do not have the right to choose the test they will take. The test will be administered is designatedby law enforcement, as provided by statute.” Fugere, 1995-NMCA-040, 37.

FACTS: Defendant was stopped for traffic violations. Officer observed signs ofintoxication. Defendant failed SFSTs and was arrested. Officer advised Defendantof the ICA and asked Defendant to take a breath test on an RBT machine. Defendant refused to take the test on the RBT, but would take the test on machineat the station. Officer told him that he didn’t get to pick which test wasadministered. Defendant was given multiple opportunities to do the RBT, and herefused because he didn’t trust the RBT. Court found that Defendant’s refusal andoffer to take the test on the station machine was conditional at best. There wassubstantial evidence to support the determination that Defendant refused to submitto a breath test, and that his actions constituted a refusal under the Act.

47

In re Suazo, 1994-NMSC-070, 117 N.M. 785. “NMSA 1978, Sections 66-8-107, -109, and -111, provide thatthe law enforcement officer has the authority to select the type of test to be performed under the ImpliedConsent Act. Should a motorist refuse to take the test offered by the officer, Section 66-8-111 becomesoperative. The statute does not provide for a motorist to demand another test to avoid the consequences ofthe initial refusal.” Suazo, 1994-NMSC-070, 797. “We therefore hold...‘that unless a delay would materiallyaffect the test results or prove substantially inconvenient to administer, a subsequent consent may cure a priorrefusal to be tested.’” Suazo, 1994-NMSC-070, 797. A subsequent consent to a chemical test may cure aninitial refusal under circumstances when: “‘(1) the subsequent request to take a test is made within areasonable time after the initial refusal, (2) a test administered upon a subsequent consent would still beaccurate, (3) testing equipment or facilities are still readily available, (4) honoring the subsequent requestwill result in no substantial inconvenience or expense to the police, and (5) the driver has been in policecustody and under observation for the whole time since his arrest.’” Suazo, 1994-NMSC-070, 797. “Underour holding, [Defendant] has the burden of establishing by a preponderance of the evidence that his eventualrequest to take a blood alcohol test was made within a reasonable time.” Suazo, 1994-NMSC-070, 798. “...Itshould be apparent that the application of the...criteria must be made on a case-by-case basis.” Suazo, 1994-NMSC-070, 798.

FACTS: Defendant was arrested for DWI at the hospital. Defendant was transported to theNMSP office in Espanola and was asked to take a breath test. Defendant agreed totake it and was given three opportunities to blow into the machine. Each time, hefailed to breathe hard or long enough to register a result. Officer determinedDefendant refused. Defendant was then transported to a hospital in Santa Fe to betreated. He later requested a blood test, which was administered. Court held thatthe delay before Defendant’s request for a blood test was not unreasonable giventhat part of the time was spent driving and receiving medical treatment.

State v. Vaughn, 2005-NMCA-076, 137 N.M. 674. “The question presented is whether the legislatureintended that a driver could provide one breath sample and still be guilty of refusing to comply with thetesting regime established by the Implied Consent Act and the implementing SLD regulations. Although thisresult may seem counterintuitive, we conclude that it was clearly intended by the legislature.” Vaughn, 2005-NMCA-076, ¶34. “It is clear from the SLD definitions and procedures that a correctly administered breathtest will consist of two samples or, in some cases, three samples. The provision allows analysis of ‘fewer’samples (one sample) in the case of inability or refusal, but the directive to the operator is clear that twosamples are to be collected. It is reasonable to conclude that the requirement for two samples is for greateraccuracy, but if only one can be obtained, the process is deemed sufficiently accurate to analyze that onesample. This is in order to allow for effective prosecution of those drunk drivers who will provide only onesample; if the suspect is injured or unconscious the State may obtain a blood sample under the ImpliedConsent Act.” Vaughn, 2005-NMCA-076, ¶38. “The plain language of the relevant statutes and regulationsindicate legislative intent to motivate suspects to take the test and to punish those who do not take the breathtest correctly. Those who provide one sample therefore have refused to take the test as designed by the SLD. The legislature has made it clear that in those cases the single sample can still be used against Defendant.” Vaughn, 2005-NMCA-076, ¶40. “...The Court has held that anything short of a full and unequivocal consentis a refusal except in very limited circumstances. Vaughn, 2005-NMCA-076, ¶41.

FACTS: Defendant arrested for DWI and asked to provide breath samples an hour afterdriving. Defendant successfully completed first test, could see his score of 0.16,and was advised of his score. Defendant then pretended to blow into machine forsecond and third tests, which resulted in readings of “insufficient sample” and “nosample introduced.” Defendant was charged with Agg DWI based on score andrefusal. Court upheld conviction of Agg DWI based on refusal.

48

State v. Ybarra, 2010-NMCA-063, 148 N.M. 373. “Incapacity to refuse a test leaves a citizen’s impliedconsent to be tested fully operative. Similarly, once a test subject consents to be tested, SLD has providedthat he shall be tested unless physically incapable of consenting.” Ybarra, 2010-NMCA-063, ¶8. “Wherea driver consents to testing, the police must administer any tests in accordance with regulations approved bySLD.” Ybarra, 2010-NMCA-063, ¶9. “Thus, as a general rule, in order for a breath test to meet SLD’srequirements, police must obtain at least two individual samples; if the results of those samples are not within.02 grams of one another, police must obtain a third. The only time police may take less than two samplesoccurs when a defendant ‘declines or is physically incapable of consent[ing]’ to the second. Ybarra, 2010-NMCA-063, ¶9. “...We conclude that as long as a subject is willing to be tested, it is the officer’s obligationunder the regulation to continue the test to its required completion. Thus, as long as a subject consents totesting, under the regulation it is irrelevant that he might be physically incapable of providing a useablebreath sample.” Ybarra, 2010-NMCA-063, ¶13. “When an officer has a consenting subject and afunctioning machine, it is his obligation to conduct a complete breath test, and such a test must include twoor three samples, as the case may require.” Ybarra, 2010-NMCA-063, ¶18.

FACTS: Defendant consented to a chemical test and provided one sample that reported ascore of 0.22. Defendant appeared to have difficulty giving enough breath on thefirst sample. He said he had asthma and requested the use of his inhaler. Officerbecame concerned as to whether Defendant would be able to give a second sampleand allowed Defendant to use his inhaler before the second test. A couple minuteslater, Defendant gave a second sample that registered “range exceeded.” Officerdecided to discontinue testing and concluded that he had gathered enough evidenceto prove Defendant’s level of intoxication. Court stated that Defendant consentedto be tested. There was no evidence that Defendant was unable to complete a breathtest or that the inhaler had any effect on the test device. The evidence only showedthat Officer assumed that Defendant was unable to complete the test and decidedto terminate the test procedure based on that assumption. Court held that given thatDefendant did not fail to provide a breath sample and actively consented throughoutthe procedure, the regulation does not allow the use of the single sample thatresulted in the score. The regulation requires subsequent samples to be taken unlessDefendant refused to provide them or had become incapable of doing so.

State v. Sandoval, 1984-NMCA-053, 101 N.M. 399. “...This court held that police officers who administerthe [breath alcohol test] have no obligation to inform the accused of his right to an additional test.” Sandoval, 1984-NMCA-053, 401. “In following United States Supreme Court cases defining the sixthamendment right, we must hold that DWI defendants at the post-[breath alcohol test] stage do not meet therequirements necessary for a right of counsel to attach.” Sandoval, 1984-NMCA-053, 403.

State v. Wyrostek, 1988-NMCA-107, 108 N.M. 140. “We hold that the Implied Consent Act does not requirea formal arrest of an unconscious person before the administration of a blood-alcohol test.” Wyrostek, 1988-NMCA-107, 143.

Pennsylvania v. Muniz, 496 U.S. 582 (1990). “We conclude that Miranda does not require suppression ofstatements [Defendant] made when asked to submit to a breathalyzer examination. [The officer] read[Defendant] a prepared script explaining how the test worked, the nature of Pennsylvania’s Implied ConsentLaw, and the legal consequences that would ensue should he refuse. [The officer] then asked [Defendant]whether he understood the nature of the test and the law and whether he would like to submit to the test. [Defendant] asked [the officer] several questions concerning the legal consequences of refusal, which [theofficer] answered directly, and [Defendant] then commented upon his state of inebriation.” Id. at 604.

49

State v. Garnenez, 2015-NMCA-022, cert. denied, (No. 35, 038, Jan. 23, 2015). “This case presents the issueof whether a blood draw can proceed solely pursuant to a valid search warrant, outside of the ImpliedConsent Act...We hold that it can.” Garnenez, 2015-NMCA-022, ¶1. “...[W]e hold that a constitutionallypermissible search of a person’s blood may arise either from an arrest pursuant to the Implied Consent Actor a valid search warrant supported by probable cause.” Garnenez, 2015-NMCA-022, ¶4. “In State v. House,we held that an affidavit for a search warrant authorizing a blood draw did not need to state that a defendantwas arrested and only needed to show probable cause...Additionally, we have held that where probable causeexists, refusal under the Implied Consent Act is not required before an officer may obtain a search warrantfor a blood test...We do not, therefore, read our Implied Consent Act to prohibit an officer from obtaininga blood sample using a search warrant supported by probable cause.” Garnenez, 2015-NMCA-022, ¶¶7-8. “In light of our preference for a search warrant under the Fourth Amendment and our case law interpretingthe Implied Consent Act, we conclude that the valid search warrant was a permissible alternative toproceeding under the Implied Consent Act in order to perform a blood draw.” 2015-NMCA-022, ¶9.

FACTS: Defendant was driving and veered off the road, struck a light pole, and rolled overmultiple times. Two passengers died. Defendant bleeding from head wound, hada fractured arm, and was taken to hospital. Officer responded to scene and spoketo Defendant at hospital. Officer detected slight odor of alcohol and noted thatDefendant had a flushed complexion and confused speech. Officer did not arresther or read her the ICA. Officer questioned Defendant’s ability to give consentbecause she appeared to be in pain from her injuries, and Officer was unsure ifmedications in Defendant’s system affected her judgment. Officer sought andobtained a search warrant to draw Defendant’s blood. Defendant was not formallyarrested until after blood draw and after she was discharged from hospital.

State v. Chakerian, 2015-NMCA-052, cert. granted, 2015-NMCERT-________ (No. 35,121, May 11, 2015). “We therefore hold that the plain meaning of [NMSA 1978, §66-8-109(B)] imposes a duty upon the State,a duty that requires law enforcement to meaningfully cooperate with an arrestee’s express desire to arrangefor an independent blood test. The level of meaningful cooperation required by law enforcement will dependupon the facts and circumstances in each particular case.” Chakerian, 2015-NMCA-052, ¶19. “Doingnothing more than providing access to a Yellow Pages telephone book and telephone in the early morninghours fails to rise to the level of meaningful cooperation required by Section 66-8-109(B).” Chakerian,2015-NMCA-052, ¶20. “Under the circumstances, Officer Aragon only provided Defendant with a merepossibility of being able to arrange for an independent test, and more than that is required by the plainlanguage of the statute–-the opportunity provided must be meaningful. The State’s duty to participate andcooperate with an arrestee’s opportunity to obtain an independent blood test cannot be so minimal that itreduces an ordinary citizen’s protected right to the level of being illusory. Objectively, Officer Aragon’sactions in this case were not sufficient to provide an ordinary person with the means to reasonably obtain anindependent test of his or her blood to determine its alcohol content as required by Section 66-8-109(B).” Chakerian, 2015-NMCA-052, ¶22. “We therefore hold that Defendant was not afforded his statutory rightof a reasonable opportunity to arrange for an independent chemical blood test of his own choosing.” Chakerian, 2015-NMCA-052, ¶23. “We adopt the reasoning of Lovato, Chouinard, and Scoggins and holdthat the remedy for a violation of a driver’s right under Section 66-8-109(B) lies in the discretion of the trialcourt, subject to review on appeal for an abuse of discretion. In deciding what is an appropriate remedy, trialcourts may consider all the facts of the case, including whether trial is before a jury or the bench, themateriality of the blood test results, and prejudice.” Chakerian, 2015-NMCA-052, ¶32.

50

State v. Maxwell, 2016-NMCA-_______, (No. 33,902, Mar. 10, 2016). “The Implied Consent Act does notrequire a law enforcement officer directing chemical testing of a driver arrested on suspicion of DWI totransport the driver to another location to receive an independent test that the driver has arranged.” Maxwell,2016-NMCA-_______, ¶20. “The language of Section 66-8-109(B) does not guarantee that an independenttest will be performed, even if requested by the person being tested. Rather, it requires that law enforcementpersonnel provide a reasonable opportunity for the person being tested to arrange for an independent test.” Maxwell, 2016-NMCA-_______, ¶10. (Internal citations omitted). “Regardless of the manner in which wedescribe the duty of the law enforcement officer, the Legislature limited that duty to relate only to the‘opportunity to arrange for’ an independent test. In this case, Defendant did ‘arrange for’ an independenttest...Thus, at the time that Defendant requested that he be transported to the hospital, he had already beenafforded the right required by Section 66-8-109(B). His request for transportation, therefore, was in additionto, and an expansion of, the Section 66-8-109(B) right to have an opportunity to arrange for the test.” Maxwell, 2016-NMCA-_______, ¶16. “We acknowledge the practical difficulties a person to be tested mayhave in obtaining an independent test...But, Section 66-8-109(B) does not require a directing law enforcementofficer to fulfill arrangements made by the person to be tested. As we stated in Jones, Section 66-8-109(B)‘does not guarantee the arrestee an additional test will be performed, but only that the arrestee will be givena reasonable opportunity to arrange for an additional test.’ Nor does it guarantee that when a person to betested contacts a person qualified to perform the test that ‘the test will actually be performed by the personcontacted.’” Maxwell, 2016-NMCA-_______, ¶17. (Internal citations omitted). “Defendant used theopportunity afforded him to arrange for an independent test as required by the statute. From its plainlanguage, the Legislature did not intend more. We do not agree with Defendant’s interpretation that wouldrequire law enforcement officers to transport arrested drivers to locations of the drivers’ choosing, removingthe officers from their regular law enforcement responsibilities.” Maxwell, 2016-NMCA-_______, ¶18.

FACTS: Defendant arrested for DWI. Officer read Implied Consent Advisory, andDefendant submitted to breath test. Defendant transported to the jail and whilethere, asked for independent test. Officer gave Defendant a phone and phone book. Defendant called hospital and nurse told him to come to hospital and they wouldadminister test. Defendant asked Officer to drive him to hospital, and Officerdeclined. Shortly thereafter, Defendant released from jail and driven to hospital. Doctor at hospital said he wouldn’t perform test without an order because situationwasn’t life threatening. Court found that Defendant used opportunity afforded himto arrange for independent test. He called hospital and was told by nurse to comedown to hospital to receive test. Section 66-8-109(B) doesn’t require officer totransport him there.

51

Birchfield v. North Dakota, 579 U.S. _____, 136 S. Ct. 2160 (2016). “In the past, the typical penalty fornoncompliance [with implied consent laws] was suspension or revocation of a motorist’s license. The casesnow before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested afterbeing lawfully arrested for driving while impaired. The question presented is whether such laws violate theFourth Amendment’s prohibition against unreasonable searches.” Id. at 2166-2167. “The [Fourth]Amendment thus prohibits ‘unreasonable searches,’ and our cases establish that the taking of a blood sampleor the administration of a breath test is a search. The question, then, is whether the warrantless searches atissue here were reasonable.” Id. at 2173. “‘[T]he text of the Fourth Amendment does not specify when asearch warrant must be obtained.’ But ‘this Court has inferred that a warrant must [usually] be secured.’ This usual requirement, however, is subject to a number of exceptions.” Id. at 2173. “We have previouslyhad occasion to examine whether one such exception–for ‘exigent circumstances’–applies in drunk-drivinginvestigations. The exigent circumstances exception allows a warrantless search when an emergency leavespolice insufficient time to seek a warrant.” Id. at 2173. (Internal citations omitted). “In Schmerber v.California, we held that drunk driving may present such an exigency.” Id. at 2173. “More recently, though,we have held that the natural dissipation of alcohol from the bloodstream does not always constitute anexigency justifying the warrantless taking of a blood sample.” Id. at 2174. “First, the physical intrusion [ofbreath tests] is almost negligible. Breath tests ‘do not require piercing the skin’ and entail ‘a minimum ofinconvenience...’ “Second, breath tests are capable of revealing only one bit of information, the amount ofalcohol in the subject’s breath...A breath test...results in a BAC reading on a machine, nothing more. Nosample of anything is left in the possession of the police. Finally, participation in a breath test is not anexperience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest. For all these reasons, we reiterate what we said in Skinner: A breath test does not implicat[e] significantprivacy concerns.’” Id. at 2176-2178. (Internal citations omitted). “Blood tests are a different matter. They‘require piercing of the skin’ and extract a part of the subject’s body...It is significantly more intrusive thanblowing into a tube. In addition, a blood test, unlike a breath test, places in the hands of law enforcementauthorities a sample that can be preserved and from which it is possible to extract information beyond asimple BAC reading. Even if the law enforcement agency is precluded from testing the blood for anypurpose other than to measure BAC, the potential remains and may result in anxiety for the person tested.” Id. at 2178. (Internal citations omitted). “Having assessed the effect of BAC tests on privacy interests andthe need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incidentto arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing isgreat. We reach a different conclusion with respect to blood tests. Blood tests are significantly moreintrusive, and their reasonableness must be judged in light of the availability of the less invasive alternativeof a breath test...Nothing prevents the police from seeking a warrant for a blood test when there is sufficienttime to do so in the particular circumstances or from relying on the exigent circumstances exception to thewarrant requirement when there is not...It is true that a blood test, unlike a breath test, may be administeredto a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to takea breath test due to profound intoxication or injuries. But we have no reason to believe that such situationsare common in drunk-driving arrests, and when they arise, the police may apply for a warrant if needbe....Because breath tests are significantly less intrusive than blood tests and in most cases amply serve lawenforcement interests, we conclude that a breath test, but not a blood test, may be administered as a searchincident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest,a warrant is not needed in this situation.” Id. at 2184-2185. “Having concluded that the search incident toarrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents’alternative argument that such tests are justified based on the driver’s legally implied consent to submit tothem...[A]pplying [a reasonableness] standard, we conclude that motorists cannot be deemed to haveconsented to submit to a blood test on pain of committing a criminal offense.” Id. at 2186.NOTE: Petitioner Beylund was not prosecuted for refusing a test. He submitted to a blood test after policetold him that the law required his submission. The Court remanded his case to the state level to reevaluatethe voluntariness of his consent given the partial inaccuracy of the officer’s advisory.

52

Consciousness of Guilt (Refusal)

McKay v. Davis, 1982-NMSC-122, 99 N.M. 29. “...The New Mexico Legislature made the right to refusesuch tests conditional when it provided that one’s license could be revoked if the ‘right’ was exercised. Therefore, the right granted by the Legislature is merely a right not to be forcibly tested after manifestingrefusal.” McKay, 1982-NMSC-122, 30. “Merely because the Legislature opted against forcible testing, itdoes not logically follow that the Legislature intended to create a statutory right to refuse to take the test. What actually exists is the driver’s statutory power to refuse to submit to the physical act of intrusion uponhis body...By correctly labeling the statutory power to refuse as a power rather than a right, the admissibilityof the refusal as evidence is rendered clearly proper. We therefore hold that evidence of a defendant’srefusal to take a breath-alcohol test is admissible under the Implied Consent Act” McKay, 1982-NMSC-122,30-31. “...There is no constitutional right to refuse to take a chemical test. Therefore, admitting refusalevidence cannot penalize one for exercising a constitutional right.” McKay, 1982-NMSC-122, 31. “Becausethere is no constitutional right to refuse, any testimony about the refusal to submit does not burden the fifthamendment.” McKay, 1982-NMSC-122, 32. “It is well established that evidence of one’s consciousness ofguilt is relevant and admissible.” McKay, 1982-NMSC-122, 32. “...[A] defendant’s refusal to take achemical test is relevant to show his consciousness of guilt and fear of the test results.” McKay, 1982-NMSC-122, 32.

State v. Wright, 1993-NMCA-153, 116 N.M. 832. “[A] defendant’s statements refusing to submit toreasonable physical evidence tests are admissible because they are not the product of impermissible coercion,not because statutes authorize their admission.” Wright, 1993-NMCA-153, 835. “We see no meaningfuldistinction between evidence of a defendant’s refusal to take a breath-alcohol test and evidence of a refusalto take a field sobriety test. A person’s responses to a field sobriety test are, at least for the most part, nottestimonial. Thus, for Fifth Amendment purposes a breath-alcohol test and a field sobriety test should notbe distinguished.” Wright, 1993-NMCA-153, 835. “...[We] hold that Defendant’s right to be free from self-incrimination was not violated by admission of the evidence that she refused to take a field sobriety test.” Wright, 1993-NMCA-153, 835-836. “We hold that the admission of evidence relating to Defendant’s refusalto take a field sobriety test did not violate the Fifth Amendment or Article II, Section 15, of the New MexicoConstitution.” Wright, 1993-NMCA-153, 836.

FACTS: Defendant refused to take SFSTs saying she would be embarrassed to take the testin front of everyone at the accident scene. She initially agreed to take a breath testand then refused.

State v. Sanchez, 2001-NMCA-109, 131 N.M. 355. “The State can use evidence of a driver’s refusal toconsent to the field sobriety testing to create an inference of the driver’s consciousness of guilt. [Theinvestigating officer,] or an objectively reasonable officer in his position, could logically infer fromDefendant’s refusal to consent to the field sobriety testing that Defendant knew he was driving under theinfluence of alcohol and that these tests might reveal his impairment.” Sanchez, 2001-NMCA-109, ¶9.

State v. Soto, 2007-NMCA-077, 142 N.M. 32. “A jury may infer Defendant’s consciousness of guilt and fearof the test results from Defendant’s refusal to take a breath test.” Soto, 2007-NMCA-077, ¶34.

53

Breath Testing

7.33.2.14(C)(1) NMAC. “Breath samples shall be collected by certified operators or certified key operatorson instruments certified by SLD.”

7.33.2.14(C)(2) NMAC. “The minimum requirements for an evidential breath sample for implied consenttesting are:(a) a system blank analysis shall be used preceding each breath sample;(b) a calibration check using SLD approved solutions and/or gases shall be performed in accordance withthe following:(i) the instrument shall be maintained and calibration checked by the key operator; calibration checks shallbe made a minimum of once every seven days; these calibration checks shall consist of checking theinstrument with two breath alcohol solutions or gases, one of which shall simulate 0.08 grams per 210 litersBrAC and the other shall simulate a BrAC of greater than 0.15 grams per 210 liters BrAC; satisfactorycalibration results must be within ± 10 percent of the listed values for a BrAC of 0.10 grams per 210 litersand above or ±0.01 for a BrAC below 0.10 grams per 210 liters; or(ii) a single calibration check using solutions or gases which simulate 0.08 grams per 210 liters shall beperformed with each subject test; satisfactory calibration check results must be within ± 0.01; these testresults shall be valid for the purpose of determining if the subject test is 0.08 grams per 210 liters or more;or(iii) both Items (i) and (ii) of this subparagraph.”

7.33.2.14(C)(3) NMAC. “The minimum requirements for a non-implied consent test are: (a) a system blankpreceding each breath sample; (b) a system blank after each breath sample.”

7.33.2.14(C)(4) NMAC. “All analytical results shall be reported as grams of alcohol per 210 liters of breath(g/210L). These results shall be reported to two decimal places except in the case of standards andproficiency samples, which shall be reported to three decimal places.”

7.33.2.14(C)(5) NMAC. “A chronological log book shall be kept for each instrument to show calibrationchecks, maintenance, analyses performed, results and identities of the subjects tested, as well as the identitiesof the persons performing analyses. These records shall be kept on forms provided by SLD. Copies of theserecords shall be submitted to SLD each month as per Paragraph (4) of Subsection B of 7.33.2.12 NMACabove.”

7.33.2.15(B)(1) NMAC. “Samples of the subject's breath shall be collected and analyzed pursuant to theprocedures prescribed by SLD and employing only SLD approved equipment and certified instruments.”

7.33.2.15(B)(2) NMAC. “Breath samples shall be collected and analyzed by certified operators or certifiedkey operators and shall be end expiratory in composition. The breath test operator should make a good faithattempt to collect and analyze at least two samples of breath. Breath shall be collected only after the certifiedoperator or certified key operator has ascertained that the subject has not had anything to eat, drink or smokefor at least 20 minutes prior to collection of the first breath sample. If during this time the subject eats, drinksor smokes anything, another 20 minute deprivation period must be initiated. The two breath samples shallbe taken not more than 15 minutes apart. If the difference in the results of the two samples exceeds 0.02grams per 210 liters (BrAC), a third sample of breath or blood shall be collected and analyzed. If the subjectdeclines or is physically incapable of consent for the second or third samples, it shall be permissible toanalyze fewer samples.”

54

Rule 7-607(A) NMRA. (Metropolitan Court). “In any prosecution of an offense within the trial jurisdictionof the metropolitan court, in which prosecution a convicted defendant is entitled to an appeal de novo, thefollowing evidence is not to be excluded under the hearsay rule, even though the declarant may be availableas a witness:(1) a written report of the conduct and results of a chemical analysis of breath or blood for determiningblood alcohol concentration and the circumstances surrounding receipt and custody of the test sample if:(a) the report is of an analysis conducted by a laboratory certified by the scientific laboratory division of thehealth department to perform breath and blood alcohol tests;(b) the report is on a form approved by the supreme court and is regular on its face; and(c) a legible copy of the report was mailed to the donor of the sample at least ten (10) days before trial;

(2) a print-out produced by a breath-testing device which performs an analysis of the defendant’s breath todetermine blood alcohol concentration if:(a) the law enforcement officer who operated the device is certified to operate the device by the scientificlaboratory of the health and environment department [department of health]; and(b) upon request, the calibration testing records for a reasonable period of time surrounding the defendant’stest are made available to the defendant for inspection prior to trial. The defendant may request a copy tobe made of the testing records at the defendant’s expense.”

Rule 6-607(A) NMRA. (Magistrate Court). “In any prosecution of an offense within the trial jurisdictionof the magistrate court, in which prosecution a convicted defendant is entitled to an appeal de novo, thefollowing evidence is not to be excluded under the hearsay rule, even though the declarant may be availableas a witness:(1) a written report of the conduct and results of a chemical analysis of breath or blood for determiningblood alcohol concentration if:(a) the report is of an analysis conducted by a laboratory certified by the scientific laboratory division of thehealth department to perform breath and blood alcohol tests;(b) the report is on a form approved by the supreme court and is regular on its face; and(c) a legible copy of the report was mailed to the donor of the sample at least ten (10) days before trial;

(2) a print-out produced by a breath-testing device which performs an analysis of the defendant’s breath todetermine blood alcohol concentration if:(a) the law enforcement officer who operated the device is certified to operate the device by the scientificlaboratory of the health and environment department [department of health]; and(b) upon request, the calibration testing records for a reasonable period of time surrounding the defendant’stest are made available to the defendant for inspection prior to trial. The defendant may request a copy tobe made of the testing records at the defendant’s expense.”

Rule 8-603(A) NMRA. (Municipal Court). “In any prosecution of an offense within the trial jurisdictionof the municipal court, in which prosecution a convicted defendant is entitled to an appeal de novo, thefollowing evidence is not to be excluded under the hearsay rule, even though the declarant may be availableas a witness:(1) a written report of the conduct and results of a chemical analysis of breath or blood for determiningblood alcohol concentration and the circumstances surrounding receipt and custody of the test sample if:(a) the report is of an analysis conducted by a laboratory certified by the scientific laboratory division of thehealth and environment department [department of health] to perform breath and blood alcohol tests;(b) the report is on a form approved by the supreme court and is regular on its face; and(c) a legible copy of the report was mailed to the donor of the sample at least ten (10) days before trial;

55

(2) a print-out produced by a breath-testing device which performs an analysis of the defendant’s breath todetermine blood alcohol concentration if:(a) the law enforcement officer who operated the device is certified to operate the device by the scientificlaboratory of the health and environment department [department of health]; and(b) upon request, the calibration testing records for a reasonable period of time surrounding the defendant’stest are made available to the defendant for inspection prior to trial. The defendant may request a copy tobe made of the testing records at the defendant’s expense.”

State v. Gardner, 1998-NMCA-160, 126 N.M. 125. “Thus, following the 1993 amendments to the DWIlaws, in order for persons to be deemed to have given their consent to blood or breath alcohol tests, and inorder for those tests results to be admitted into evidence, the tests must have been taken in accordance withdepartment of health regulations. In the case of breath alcohol tests, these regulations include the twenty-minute waiting period...” Gardner, 1998-NMCA-160, ¶9. “The addition of language concerning breath andblood alcohol testing in accordance with department of health regulations in the implied-consent statute, §66-8-107, as well as the admissibility-of-evidence statute, §66-8-110, convinces us that the legislature intendedthat compliance with these regulations would be a condition precedent to admissibility...” Gardner, 1998-NMCA-160, ¶11. We “hold that failure to comply with the applicable waiting period precludes theadmission of breath alcohol test results into evidence.” Gardner, 1998-NMCA-160, ¶11. “The purpose ofcomplying with the waiting period requirements for breath alcohol tests is to ensure the accuracy of thesetests...[A] ‘subject must be kept under observation for [the requisite period of time] to insure that he has nottaken anything alcoholic to drink during that period and to allow any alcohol present in the mouth to beabsorbed by the skin.’ When there is not strict compliance with the waiting-period rule, the results of thebreath alcohol tests are considered sufficiently questionable as to preclude their admissibility. Thus, whenthese administrative requirements are not complied with, the State has failed to lay a proper foundation ofaccuracy for admission.” Gardner, 1998-NMCA-160, ¶12. “In this case, we hold that no prejudice need tobe shown [before suppression of the test results is required]. That is because the requirement of compliancewith applicable regulations is explicitly a part of the statute that permits the tests into evidence.” Gardner,1998-NMCA-160, ¶14. (Overruled holding in Jones that Defendant had to show prejudice from statutoryviolations before suppression is required). “We do not hold that substantial compliance might not besufficient if the matter at issue was the continuous observation requirement and the officer glanced downperiodically to do paperwork, but testified that he or she would have been able to tell if the defendant‘regurgitate[d] or introduce[d] any foreign substance suspected of containing alcohol into his mouth ornose...’” Gardner, 1998-NMCA-160, ¶20.

FACTS: Defendant arrested for DWI and transported to the station to take a breath test. Officer observed Defendant while she was in his patrol car and again once theyarrived to the station, but didn’t observe Defendant while the car was being towedor while Defendant was in the back seat of his vehicle and he was driving it. Officer also permitted Defendant to use the restroom 15-20 minutes before the testwithout observation. Court held that the test results were improperly admitted intoevidence due to the violation, by as much as five minutes, of the twenty-minutecontinuous observation period.

56

State v. Smith, 1999-NMCA-154, 128 N.M. 467. “The requirements for laying a proper foundation for theadmission of breathalyzer test results in a criminal trial are well-established: ‘upon proper objection, theremust be a threshold showing of the machine’s validity as foundation for admission of the evidence.’ TheState can meet this threshold requirement by presenting ‘‘evidence sufficient to support a finding’ that theparticular test was capable of producing valid results.’” Smith, 1999-NMCA-154, ¶10. “...All that isnecessary to lay a proper foundation for the admission of breathalyzer test results in a criminal DWI trial isthe live testimony of the officer who administered the test as to his familiarity with the testing procedure,the recent calibration of the machine, and his observation that the test administration proceeded withouterror.” Smith, 1999-NMCA-154, ¶13.

FACTS: Officer testified about his significant experience in administering breath tests, thatthe machine appeared to be in working order, and that the log attached to itindicated that it had been calibrated within the previous seven days. Court foundthat with that testimony, the State met its burden of laying an adequate foundationfor admitting the results of Defendant’s tests.

State v. Martinez, 2007-NMSC-025, 141 N.M. 713. “...We address the question of whether, for foundationalpurposes in admitting a BAT card into evidence, it is sufficient for an officer to testify that he or she saw theSLD certification sticker attached to the breathalyser and that the sticker revealed the certification to becurrent. We hold that it does.” Martinez, 2007-NMSC-025, ¶6. “Moreover, as noted in Onsurez, becausecalibration is but a part of certification, the State cannot substitute proof of calibration for proof ofcertification. Thus, we agree that before a BAT card is admitted into evidence, the State must make athreshold showing that the machine has been certified...[B]efore the result of a breath test is admissible, theState must also make a threshold showing that SLD certification was current at the time the test was taken.” Martinez, 2007-NMSC-025, ¶12. “Since they are not elements, the State is not required to have admittedinto evidence and proven beyond a reasonable doubt that the testing machine was certified, calibrated andfunctioning properly at the time the test was taken, or that the officer conducting the test was certified bySLD. Instead, these are merely foundational requirements that the State must meet before the critical pieceof evidence-the test result-is admitted into evidence.” Martinez, 2007-NMSC-025, ¶14. “...Rule 11-104(A)-not 11-104(B)-governs the admissibility of a BAT card. Whether a BAT card may be admitted into evidenceis a matter decided solely by the trial court and is not contingent upon its relevancy being established byother facts submitted to the jury.” Martinez, 2007-NMSC-025, ¶17. “When using Rule 11-104(A) todetermine whether evidence is admissible, the trial court need only be satisfied by a preponderance ofevidence that the foundational requirement has been met. Moreover, in making its determination, the rulesof evidence, except those concerning privileges, do not apply.” Martinez, 2007-NMSC-025, ¶19. “...Oncethe trial court determines that the State has met the foundational requirements for the admissibility of a BATcard, a defendant may successfully challenge the reliability of the breath test.” Martinez, 2007-NMSC-025,¶24.

State v. Onsurez, 2002-NMCA-082, 132 N.M. 485. “...We hold that in cases where the defendant properlypreserves the objection, the State must show that the machine used for administering a breath test has beencertified by SLD.” Onsurez, 2002-NMCA-082, ¶10. “The State need not independently prove the scientificreliability of the test as part of its prima facie case.” Onsurez, 2002-NMCA-082, ¶10.

FACTS: Officer testified that SLD had trained and certified him to use the machine and torun calibration tests every seven days to insure that it performed within SLDstandards. He testified that he checked to make sure that the machine had beencalibrated properly and observed Defendant for 20 mins. Court held that therequirement of the ICA that the test be approved by the scientific laboratorydivision of the department of health was satisfied through Officer’s testimony.

57

State v. Dedman, 2004-NMSC-037, 136 N.M. 561, overruled on other grounds by State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, overruled on other grounds by Bullcoming v. New Mexico, 131 S. Ct. 2705(2011). “When the purpose of administrated rules is to ensure the accuracy of test results and thosefoundational requirements are not met, the test results may be excluded. We are not convinced, however,that strict compliance with all regulatory requirements is necessary for admissibility. We conclude that theLegislature intended, in enacting the 1993 amendments [to the Implied Consent Act and DWI statutes], tomandate the exclusion of test results whenever proof of compliance with a regulation intended to ensureaccuracy is missing.” Dedman, 2004-NMSC-037, ¶13.

State v. Cavanaugh, 1993-NMCA-152, 116 N.M. 826. “Once [the threshold foundation of a showing thatthe machine was properly calibrated], any questions about [the officer’s] ability to give a BAC test went tothe weight of the evidence, not its admissibility.” Cavanaugh, 1993-NMCA-152, 829.

FACTS: Officer testified that the machine had been calibrated the week before the test wasgiven to Defendant. Court found that was sufficient for the proper foundation.

State v. Ybarra, 2010-NMCA-063, 148 N.M. 373. “Thus, as a general rule, in order for a breath test to meetSLD’s requirements, police must obtain at least two individual samples; if the results of those samples arenot within .02 grams of one another, police must obtain a third. The only time police may take less than twosamples occurs when a defendant ‘declines or is physically incapable of consent[ing]’ to the second.” Ybarra, 2010-NMCA-063, ¶9. “...We conclude that as long as a subject is willing to be tested, it is theofficer’s obligation under the regulation to continue the test to its required completion. Thus, as long as asubject consents to testing, under the regulation it is irrelevant that he might be physically incapable ofproviding a useable breath sample.” Ybarra, 2010-NMCA-063, ¶13. “When an officer has a consentingsubject and a functioning machine, it is his obligation to conduct a complete breath test, and such a test mustinclude two or three samples, as the case may require.” Ybarra, 2010-NMCA-063, ¶18.

FACTS: Defendant consented to a chemical test and provided one sample that reported ascore of 0.22. Defendant appeared to have difficulty giving enough breath on thefirst sample. He said he had asthma and requested the use of his inhaler. Officerbecame concerned as to whether Defendant would be able to give a second sampleand allowed Defendant to use his inhaler before the second test. A couple minuteslater, Defendant gave a second sample that registered “range exceeded.” Officerdecided to discontinue testing and concluded that he had gathered enough evidenceto prove Defendant’s level intoxication. Court stated that Defendant consented tobe tested. There was no evidence that Defendant was unable to complete a breathtest or that the inhaler had any effect on the test device. The evidence only showedthat Officer assumed that Defendant was unable to complete the test and decidedto terminate the test procedure based on that assumption. Court held that given thatDefendant did not fail to provide a breath sample and actively consented throughoutthe procedure, the regulation does not allow the use of the single sample thatresulted in the score. The regulation requires subsequent samples to be taken unlessDefendant refused to provide them or had become incapable of doing so.

State v. Rivera, 1997-NMCA-102, 124 N.M. 211. “There was also testimony that sitting in a car with adefendant could satisfy the twenty-minute period because the purpose of the observation period is to insurethat a defendant does nothing to compromise the tests. This purpose was satisfied.” Rivera, 1997-NMCA-102, ¶5.

58

State v. Willie, 2009-NMSC-037, 146 N.M. 481. “...[T]he plain meaning of the term ‘ascertain’ does notprevent a [breath alcohol test] operator from using a variety of methods and means to determine that a DWIsuspect has not had anything to eat, drink, or smoke during the deprivation period.” Willie, 2009-NMSC-037,¶12. “The records show that Defendants were restrained for nearly an hour after their arrests in such a waythat it would be unlikely that they could have eaten, drunk, or smoked anything. During this time, thearresting officers observed Defendants, though not continuously, and at times engaged Defendants inconversation. Under these circumstances, we believe the trial court did not abuse its discretion in findingthat it was more likely than not that Defendants had not had anything to eat, drink, or smoke during thedeprivation period.” Willie, 2009-NMSC-037, ¶16. “We hold that the provisions of Regulation7.33.2.12(B)(1) NMAC [now 7.33.2.15(B)(2) NMAC] do not require [breath alcohol test] machine operatorsto either ask a person suspected of drunk driving whether he or she has anything in his or her mouth or toinspect a suspect’s mouth for food or other substances prior to initiating the required twenty-minutedeprivation period.” Willie, 2009-NMSC-037, ¶18.

FACTS: Defendants awaited the breath tests in either Officer’s car with their hands cuffedbehind their backs, a holding cell at the station in view of Officer, or the breathtesting room while in Officer’s presence.

State v. Thompson, 2009-NMCA-076, 146 N.M. 663. Defendant stopped for bad driving, and Officer sawsigns of intoxication. Offer asked him to do SFSTs and checked Defendant’s mouth to make sure nothingwas in it. Defendant failed SFSTs and was arrested for DWI. Officer handcuffed him with his hands behindhis back and checked his mouth again. As Defendant sat in the back of the patrol car, Officer sat in thedriver’s seat and did paperwork until the tow truck arrived. Officer transported Defendant to the station. At the station, Officer sat in front of Defendant finishing paperwork until he administered BAT. Officertestified that the deprivation period began at the time of stop and ended about 22 minutes after the stop. During that time, Defendant didn’t eat, smoke, regurgitate, vomit, drink, or put anything in his mouth. Defendant was never out of Officer’s observation area. Defendant’s hands were secured behind his back inhandcuffs, and there wasn’t anything in the back seat of the patrol car. Officer testified that prior toadministering the breath test, Officer asked Defendant if he had anything in his mouth and also checkedDefendant’s mouth to confirm that nothing was in it. Officer used his CAD for the time of stop and the clockon the Intoxilyzer for the time of the first test. Officer conceded during testimony that the two time devisesweren’t synchronized, but in his experience were very close in time, if not to the same minute. “Inconsistencies in testimony, if any, were before the court, and it is apparent that the court determined therewas a preponderance of evidence to establish the necessary foundation. Given the facts in this case, themetropolitan court could reasonably have concluded that looked at Defendant’s mouth shortly after thedeprivation period began confirmed that the period of time up to that point was properly part of thedeprivation period.” Thompson, 2009-NMCA-076, ¶20. “…[W]e conclude that the court did not abuse itsdiscretion in admitting the BAT results because [the officer’s] testimony provided substantial evidence tosupport those findings.” Thompson, 2009-NMCA-076, ¶21.

State v. Myers, 1975-NMCA-055, 88 N.M. 16. “The witness in this case was neither a chemist nor a medicalexpert. However, he had been trained to operate the test machine and had performed several hundred similartests with it. ‘That he was not a specialist does not go to the admissibility of the evidence solicited from himnor to its sufficiency to support a finding based thereon, but rather to the weight to be accorded it.’ Further,defendant had ample opportunity to cross-examine the witness. We hold that the defendant was afforded dueprocess in that the accuracy of the testing machine was supported by lay testimony, subject to full rights ofcross-examination by defendant.” Myers, 1975-NMCA-055, 22.

59

State v. Granillo-Macias, 2008-NMCA-021, 143 N.M. 455. “It is important to note the distinction between(1) preliminary factual evidence (testimony as to certification) to establish a foundation for the admissionof evidence to be used at trial (the breath test results), and (2) the evidence to be used at trial (the breath testresults). The witness that Defendant demands for cross-examination [the person who had actual knowledgeof the certification process and of the actual certification of the machine] would present nothing more thanpreliminary factual evidence to establish a foundation for the admission of evidence to be used at trial.” Id.at ¶21, 1193. “...[T]he Court in Martinez stated that ‘[t]he protections afforded by the Confrontation Clausedo not extend to preliminary questions of fact.’ We consider this statement to be binding precedent. Thus,under Martinez, because Defendant seeks only to cross-examine on preliminary questions of fact, theConfrontation Clause offers Defendant no protection.” Granillo-Macias, 2008-NMCA-021, ¶22.

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). “Contrary to the dissent’s suggestion, we do nothold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody,authenticity of the sample, or accuracy of the testing device, must appear in person at part of theprosecution’s case. While the dissent is correct that ‘[i]t is the obligation of the prosecution to establish thechain of custody,’ this does not mean that everyone who laid hands on the evidence must be called. As statedin the dissent’s own quotation, ‘gaps in the chain [of custody] normally go to the weight of the evidencerather than the admissibility.’ It is up to the prosecution to decide what steps in the chain of custody are socrucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introducedlive. Additionally, documents prepared in the regular course of equipment maintenance may well qualifyas nontestimonial records.” Id. at 311 n.1.

State v. Ruiz, 1995-NMCA-098, 120 N.M. 534, abrogated on other grounds by State v. Martinez, 2007-NMSC-025, 141 N.M. 713. Breathalyser calibration logs are admissible as business records. Ruiz, 1995-NMSC-098, 536-538.

City of Rio Rancho v. Mazzei, 2010-NMCA-054. “‘Miranda warnings are designed to protect an accused’s[F]ifth [A]mendment right against self-incrimination.’ New Mexico courts have, however, consistently heldthat physical evidence, such as breath, blood, fingerprints, etc., is excluded from the scope of thatprotection.” Mazzei, 2010-NMCA-054, ¶25. (Internal citations omitted).

State v. Hobbs, 2016-NMCA-022, cert. denied, (No. 35, 708, Feb. 16, 2016). “We conclude that the Stateneed not make a threshold showing that the certified operator of a certified breath alcohol instrumentconfirmed at the time of the test that equipment attached to the instrument is SLD-approved in order to laya sufficient foundation under Rule 11-104(A) for the admission of [breath alcohol test] results into evidence.” Hobbs, 2016-NMCA-022, ¶22. “Our Supreme Court has held that, to meet foundation requirements underRule 11-104(A), the State need not show strict compliance with all SLD regulations set forth in [7.33.2NMAC], but only with those regulations that are ‘accuracy ensuring.’‘ Hobbs, 2016-NMCA-022, ¶18 (citingfrom State v. Martinez, 2007-NMSC-025, ¶11). “Defendant’s argument presumes that the Rule 11-104(A)foundational requirements applicable to an individual ‘breath alcohol instrument’ also apply to individualpieces of ‘equipment’–here, the gas tank attached to the instrument and the gas reference standard it contains. [7.33.2 NMAC] treats the ‘breath alcohol instrument’...very differently from ‘equipment.’” Hobbs, 2016-NMCA-022, ¶13. “[7.33.2 NMAC] contains no requirement that SLD or certified instrument operators mustconfirm that each individual tank and its contents are SLD-approved before a [breath alcohol test] isadministered. [7.33.2 NMAC] itself contains no indication that such individual confirmation is necessaryto ensure the accuracy of the [breath alcohol test] result.” Hobbs, 2016-NMCA-022, ¶21.

60

State v. Anaya, 2012-NMCA-094. “Nothing in Melendez-Diaz or Bullcoming requires the State to producea witness and provide foundational testimony that the IR 5000 is scientifically accurate and reliable inmeasuring the alcohol level in a person’s breath. The New Mexico Legislature has established the scientificprocedures necessary to ensure the accuracy of breath tests by mandating that breath tests taken pursuant tothe Implied Consent Act be approved by the SLD. In doing so, the Legislature has statutorily given SLD theoriginal authority to determine which scientific tests and procedures will be recognized to produce legallyaccurate and reliable breath test results. As a result, the admissibility of breath test results turns on eachparticular test and the officer’s compliance with the SLD regulations codified at 7.33.2.1-.18 NMAC(4/30/10).” Anaya, 2012-NMCA-094, ¶20. “It is clear that not all foundational evidence implicates theConfrontation Clause. It is the testimonial nature of a statement and its use against the defendant that triggersConfrontation Clause protection. In determining whether compliance with SLD procedures implicated theConfrontation Clause, this Court has previously held that issues that are preliminary and foundational innature are non-testimonial. We explained that preliminary factual evidence is non-testimonial because itbears an attenuated relationship to conviction. Foundational information regarding the scientific aspects ofa breathalyzer machine would require too much of an inferential leap to serve as testimonial evidence of adefendant’s guilt. As a result, factual evidence related to the scientific aspects of the certification proceduresof the IR 5000 machine are non-testimonial because they would support one foundational fact, the scientificaccuracy of the machine. Thus, the Confrontation Clause did not apply to the preliminary evidence regardingthe scientific aspects for certifying the machine because ‘[t]he witness that ‘the d]efendant demand[ed] forcross-examination would present nothing more than preliminary factual evidence to establish a foundationfor the admission of evidence to be used at trial. Although we decided Granillo-Macias prior to the UnitedStates Supreme Court’s recent holdings in Melendez-Diaz and Bullcoming, we conclude that our holding inGranillo-Macias is in line with the current status of Confrontation Clause jurisprudence.” Anaya, 2012-NMCA-094, ¶¶21-22. “We hold that the scientific reliability and functionality of the IR 5000 used to testDefendant’s breath is a foundational issue that is only subject to challenge through expert testimony. Inaddition, the scientific aspects of the IR 5000 machine are non-testimonial facts and do not implicate theConfrontation Clause.” Anaya, 2012-NMCA-094, ¶22. “As a result, our holding in Granillo-Macias thatpreliminary, foundational information does not implicate the Confrontation Clause remains consistent withthe United States Supreme Court’s holdings in Melendez-Diaz and Bullcoming.” Anaya, 2012-NMCA-094,¶24. “While the IR 5000 may be manufactured to produce evidence for later use in criminal andadministrative hearings, the machine is only a tool of scientific measurement. The calibration of the IR 5000,for example is conducted in compliance with SLD regulations to achieve accurate measurements, not inanticipation of any particular defendant’s case or trial. Additionally, once calibrated, there is no guaranteethat a particular IR 5000 machine will ever be used in any particular case.” Anaya, 2012-NMCA-094, ¶25. “Because the underlying science and functionality of the IR 5000 bears only on the measurement to be usedin conducting an analytical, scientific process, the scientific aspects of the breathalyzer machine are non-testimonial and the Confrontation Clause does not apply. In this case, it is the officer’s testimony regardingDefendant’s act of blowing his breath into the machine that constitutes the testimonial evidence that requiresthe officer who administered the breathalyzer test to be present at trial and subject to cross-examination.” Anaya, 2012-NMCA-094, ¶¶25-26. “Any concerns about non-testimonial, preliminary, or foundationalinformation, such as the accuracy or reliability of a machine remain subject to challenge as part of aDefendant’s evidence when he presents his case. If Defendant wanted to attack the scientific methods usedin the construction or operation of the IR 5000, it was incumbent on him to present the relevant scientificevidence as part of his defense.” Anaya, 2012-NMCA-094, ¶27.

61

State v. King, 2012-NMCA-119. “We hold that Defendant was entitled to present expert testimonychallenging the reliability of the intoxilyzer machine and that the expert’s failure to examine the machinein question did not preclude such testimony.” King, 2012-NMCA-119, ¶1. “Rule 11-702 NMRA permitsa qualified expert witness to testify in the form of an opinion if ‘scientific, technical or other specializedknowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]’” King,2012-NMCA-119, ¶6. “The purpose of Dr. Reyes’ testimony would have been to challenge the reliabilityof the breath alcohol test performed on Defendant to raise a reasonable doubt that Defendant’s alcoholconcentration was .08 or more.” King, 2012-NMCA-119, ¶6. “...Defendant’s proffer indicated that Dr.Reyes would testify concerning ‘pitfalls’ that were common to all Intoxilyzer 8000 machines. If such‘pitfalls’ were to result in readings that were inaccurate, as Defendant proffered, they would be relevant tothe reliability of the Intoxilyzer 8000 used to test Defendant. Moreover, we do not believe that the ImpliedConsent Act restricts a defendant from challenging the reliability of an intoxilyzer by expert testimony afterbreath test results have been admitted in evidence.” King, 2012-NMCA-119, ¶¶12-13. (Internal citationsomitted). “The intoxilyzer reading, even though the machine has been approved by the SLD, and operatedand maintained in accordance with the SLD regulations, is not conclusive evidence of the offense. Nor isit conclusive evidence of the reliability of the test results. Nothing in Section 66-8-102(C)(1), the ImpliedConsent Act, or the SLD regulations indicates that the Legislature intended that the results produced by amachine approved by the SLD that has been operated and maintained in according with the SLD regulationsis conclusively reliable. If the Legislature had intended such a result, it could have stated it with some degreeof clarity. Rather, we interpret the legislative language to mean, as suggested in Martinez, that when the statehas provided the foundation that the SLD regulations pertaining to accuracy have been met, the intoxilyzerresults may be received in evidence, subject to a defendant’s challenge to their reliability. Although theImplied Consent Act and the SLD regulations provide a road map for challenging some aspects of amachine’s reliability, they do not limit Defendant’s defense.” King, 2012-NMCA-119, ¶16. (Internalcitations omitted). “As to the State’s first argument, we agree that testimony concerning a blood test wouldnot be probative in this case because Defendant did not have one. We further agree that because Dr. Reyesdid not examine Defendant, any testimony concerning Defendant’s deviation from a partition coefficient of2100:1 would not be admissible. However, we do not agree that Dr. Reyes’ proffered testimony pertainingto ‘pitfalls’ common to all Intoxilyzer 8000 machines that affected the accuracy of test results lackedprobative value because Dr. Reyes did not examine Defendant or the particular machine used to testDefendant. Any reliability ‘pitfalls’ based on the ‘structure, mechanisms, and workings’ that are commonto Intoxilyzer 8000 machines necessarily could impugn the reliability of every Intoxilyzer 8000 machine,including the Intoxilyzer 8000 used on Defendant. The scientific process of the Intoxilyzer 8000 is notbeyond reproach. In this case, Defendant has initiated a proper foundational challenge to the reliability ofthe Intoxilyzer 8000 by providing an expert witness to testify about the scientific process and reliability ofthe machine.” King, 2012-NMCA-119, ¶20. (Internal citations omitted).

State v. Hall, 2016-NMCA-_______, (No. 33,875, Jul. 7, 2016). “...[T]he Scientific Laboratory Division ofthe Department of Health (SLD) has administrative authority over blood and breath tests administered topersons suspected of driving while under the influence of intoxicants.” Hall, 2016-NMCA-_______, ¶23. (Internal citations omitted). “In other words, our jurisprudence permitting the admissibility of breath testresults does so based upon ongoing accuracy-ensuring processes that guard against inconsistent, varying, anderroneous results...[W]e conclude that satisfactory performance on four annual proficiency tests...remainsa mandatory accuracy-ensuring requirement for certification under the current version of the regulation.” Hall, 2016-NMCA-_______, ¶29.

FACTS: Sgt. testified that the IR 8000 used to measure Defendant’s BAC certified by SLDand he observed sticker reflecting that date of Defendant’s test was within daterange of machine’s certification. Defendant challenged that testimony andpresented documentation from SLD that SLD had no info available regardingproficiency tests conducted on that particular machine for that certification year.

62

State v. Montoya, 2016-NMCA-_______, (No. 34,298, Jun. 29, 2016). “Section 66-8-110(A) provides that‘[t]he results of a test performed pursuant to the Implied Consent Act may be introduced into evidence’ incriminal and civil cases.” Montoya, 2016-NMCA-_______, ¶11. “The provision of Section 66-8-110(A)permitting the introduction of BAT results is not without limitation. Generally speaking, the question ofwhether a defendant’s BAT result is admissible ‘turns on each particular test and the officer’s compliancewith the SLD regulations[.]’ SLD has promulgated breath alcohol testing regulations. Compliance with SLDregulations is a pre-condition for admissibility.” Montoya, 2016-NMCA-_______, ¶11. “Given theabundance of appellate case law endorsing the reliability of breath alcohol testing generally, a trial court isjustified in presuming such reliability in the absence of an articulated challenge. Whether Defendants’argument justifies further evaluation of the reliability of our regulatory scheme under Rule 11-702 turns onthe standard articulated in Fuentes: whether Defendants’ offered testimony and evidence ‘make anaffirmative showing that there is some reason to doubt the reliability’ of BAT results generated through SLD-approved chemical testing.” Montoya, 2016-NMCA-_______, ¶16. “Defendants were entitled to presentevidence, including expert testimony related to measurement uncertainty, to the finder of fact and make anargument that their BAT results should not support a finding of guilt beyond a reasonable doubt. But thisinquiry regarding the weight to be given to expert testimony is a separate one from whether Defendants’evidence constituted an ‘affirmative showing that there is some reason to doubt the reliability of [accepted]science[,]’ such that their SLD-approved chemical test results are inadmissible.” Montoya, 2016-NMCA-_______, ¶27.

FACTS: On appeal, Defendants argued that their BAT results were unreliable because nouncertainty computation was applied to the results. Court held that the substanceof Defendants’ admitted evidence and expert testimony failed to undermine theaccepted science underlying the SLD-approved chemical testing scheme.

Birchfield v. North Dakota, 579 U.S. _____, 136 S. Ct. 2160 (2016). “In the past, the typical penalty fornoncompliance [with implied consent laws] was suspension or revocation of a motorist’s license. The casesnow before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested afterbeing lawfully arrested for driving while impaired. The question presented is whether such laws violate theFourth Amendment’s prohibition against unreasonable searches.” Id. at 2166-2167. “The [Fourth]Amendment thus prohibits ‘unreasonable searches,’ and our cases establish that the taking of a blood sampleor the administration of a breath test is a search. The question, then, is whether the warrantless searches atissue here were reasonable.” Id. at 2173. “First, the physical intrusion [of breath tests] is almost negligible. Breath tests ‘do not require piercing the skin’ and entail ‘a minimum of inconvenience...’ “Second, breathtests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath...Abreath test...results in a BAC reading on a machine, nothing more. No sample of anything is left in thepossession of the police. Finally, participation in a breath test is not an experience that is likely to cause anygreat enhancement in the embarrassment that is inherent in any arrest. For all these reasons, we reiteratewhat we said in Skinner: A breath test does not implicat[e] significant privacy concerns.’” Id. at 2176-2178. (Internal citations omitted). “Having assessed the effect of BAC tests on privacy interests and the need forsuch tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests fordrunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great...Becausebreath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcementinterests, we conclude that a breath test, but not a blood test, may be administered as a search incident to alawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrantis not needed in this situation.” Id. at 2184-2185.

63

Portable Breath Testing

NMSA 1978, §66-8-110(A). “The results of a test performed pursuant to the Implied Consent Act may beintroduced into evidence in any civil action or criminal action arising out of the acts alleged to have beencommitted by the person tested for driving a motor vehicle while under the influence of intoxicating liquoror drugs.” (Emphasis added).

NMSA 1978, §66-8-107(A). “Any person who operates a motor vehicle within this state shall be deemedto have given consent, subject to the provisions of the Implied Consent Act [66-8-105 NMSA 1978], tochemical tests of his breath or blood or both, approved by the scientific laboratory division of the departmentof health pursuant to the provisions of Section 24-1-22 NMSA 1978 as determined by a law enforcementofficer, or for the purpose of determining the drug or alcohol content of his blood if arrested for any offensearising out of the acts alleged to have been committed while the person was driving a motor vehicle whileunder the influence of an intoxicating liquor or drug.” (Emphasis added).

NMSA 1978, §24-1-22(A). “The scientific laboratory division of the department of health is authorized topromulgate and approve satisfactory techniques or methods to test persons believed to be operating a motorvehicle or a motorboat under the influence of drugs or alcohol and to issue certification for test operators andtheir instructors that shall be subject to termination or revocation at the discretion of the scientific laboratorydivision. The scientific laboratory division is further authorized to establish or approve quality controlmeasures for alcohol breath testing and to establish or approve standards of training necessary to ensure thequalifications of individuals conducting these analyses or collections.”

State v. Gardner, 1998-NMCA-160. “In this case, as discussed previously, throughout the statutoryframework, there is language that the blood and breath alcohol tests must be taken in accordance withapplicable regulations, that people do not consent to take these tests except in accordance with the stateregulations, and that blood or breath tests conducted in accordance with the regulations may be introduced

into evidence.” Gardner, 1998-NMCA-160, ¶15.

64

Blood Testing

7.33.2.14(B)(2) NMAC. “The results of positive tests for drugs other than alcohol shall not be reported untilthey are confirmed. Confirmation tests must employ an approved method that is different than the oneutilized to achieve the initial result unless the confirmation test method has been approved for that use bySLD.”

7.33.2.15(A)(1) NMAC. “Blood samples shall be collected in the presence of the arresting officer or otherresponsible person who can authenticate the samples. Blood samples shall be collected by veni-puncture asauthorized by the New Mexico Implied Consent Act NMSA 1978, Sections 66-8-105 et. seq. The termlaboratory technician shall include phlebotomists.”

7.33.2.15(A)(2) NMAC. “The initial blood samples should be collected within three hours of arrest. Anyblood samples collected subsequent to the initial blood or breath sample collection should be collected within60 minutes of the initial sample collection.”

7.33.2.15(A)(3) NMAC. “Ethyl alcohol shall not be used as a skin antiseptic in the course of collectingblood samples. The samples shall be dispensed or collected using an SLD-approved blood collection kit. SLD-approved blood collection kit will contain two or more sterile tubes with sufficient sodium fluoride sothat the final concentration shall contain not less than 1.0 percent sodium fluoride. In the case of aninsufficient sample, it shall be permissible to collect the sample in one tube only.”

7.33.2.15(A)(4) NMAC. “The blood samples shall be delivered to SLD or a laboratory certified by SLD toconduct tests for alcohol or other drug content. At the laboratory, the seal shall be broken on one tube andthe blood shall be analyzed. If necessary it shall be permissible to open more than one sample tube.”

7.33.2.15(A)(5) NMAC. “The samples of blood shall be retained by the laboratory which performed theinitial alcohol or drug testing for a period of not less than six months. Any interested party may request thelaboratory retain the samples longer than 6 months. The request must be made in writing and include: thename of the donor of the sample; the date of arrest; the arresting agency; the county of arrest and; ifavailable, any laboratory identification numbers.”

Rule 7-607(A) NMRA. (Metropolitan Court). “In any prosecution of an offense within the trial jurisdictionof the metropolitan court, in which prosecution a convicted defendant is entitled to an appeal de novo, thefollowing evidence is not to be excluded under the hearsay rule, even though the declarant may be availableas a witness:(1) a written report of the conduct and results of a chemical analysis of breath or blood for determiningblood alcohol concentration and the circumstances surrounding receipt and custody of the test sample if:(a) the report is of an analysis conducted by a laboratory certified by the scientific laboratory division of thehealth department to perform breath and blood alcohol tests;(b) the report is on a form approved by the supreme court and is regular on its face; and(c) a legible copy of the report was mailed to the donor of the sample at least ten (10) days before trial;

(2) a print-out produced by a breath-testing device which performs an analysis of the defendant’s breath todetermine blood alcohol concentration if:(a) the law enforcement officer who operated the device is certified to operate the device by the scientificlaboratory of the health and environment department [department of health]; and(b) upon request, the calibration testing records for a reasonable period of time surrounding the defendant’stest are made available to the defendant for inspection prior to trial. The defendant may request a copy tobe made of the testing records at the defendant’s expense.”

65

Rule 6-607(A) NMRA. (Magistrate Court). “In any prosecution of an offense within the trial jurisdictionof the magistrate court, in which prosecution a convicted defendant is entitled to an appeal de novo, thefollowing evidence is not to be excluded under the hearsay rule, even though the declarant may be availableas a witness:(1) a written report of the conduct and results of a chemical analysis of breath or blood for determiningblood alcohol concentration if:(a) the report is of an analysis conducted by a laboratory certified by the scientific laboratory division of thehealth department to perform breath and blood alcohol tests;(b) the report is on a form approved by the supreme court and is regular on its face; and(c) a legible copy of the report was mailed to the donor of the sample at least ten (10) days before trial;

(2) a print-out produced by a breath-testing device which performs an analysis of the defendant’s breath todetermine blood alcohol concentration if:(a) the law enforcement officer who operated the device is certified to operate the device by the scientificlaboratory of the health and environment department [department of health]; and(b) upon request, the calibration testing records for a reasonable period of time surrounding the defendant’stest are made available to the defendant for inspection prior to trial. The defendant may request a copy tobe made of the testing records at the defendant’s expense.”

Rule 8-603(A) NMRA. (Municipal Court). “In any prosecution of an offense within the trial jurisdictionof the municipal court, in which prosecution a convicted defendant is entitled to an appeal de novo, thefollowing evidence is not to be excluded under the hearsay rule, even though the declarant may be availableas a witness:(1) a written report of the conduct and results of a chemical analysis of breath or blood for determiningblood alcohol concentration and the circumstances surrounding receipt and custody of the test sample if:(a) the report is of an analysis conducted by a laboratory certified by the scientific laboratory division of thehealth and environment department [department of health] to perform breath and blood alcohol tests;(b) the report is on a form approved by the supreme court and is regular on its face; and(c) a legible copy of the report was mailed to the donor of the sample at least ten (10) days before trial;

(2) a print-out produced by a breath-testing device which performs an analysis of the defendant’s breath todetermine blood alcohol concentration if:(a) the law enforcement officer who operated the device is certified to operate the device by the scientificlaboratory of the health and environment department [department of health]; and(b) upon request, the calibration testing records for a reasonable period of time surrounding the defendant’stest are made available to the defendant for inspection prior to trial. The defendant may request a copy tobe made of the testing records at the defendant’s expense.”

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). “...[U]nder our decision in Crawford the [certificatesof analysis showing the results of the forensic analysis performed on the seized substances that were swornbefore a notary public by the analysts] were testimonial statements, and that analysts were ‘witnesses’ forpurposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial andthat petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’the analysts at trial.” Id. at 2532. “The analysts’ certificates-like police reports generated by lawenforcement officials-do not qualify as business or public records...” Id. at 2538.

66

State v. Dedman, 2004-NMSC-037, 136 N.M. 561, overruled on other grounds by State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, overruled on other grounds by Bullcoming v. New Mexico, 131 S. Ct. 2705(2011). (Court’s finding that BAC reports are not testimonial was overruled by State v. Bullcoming). “Wehold that the State’s offer of proof, which included the testimony of the toxicologist who prepared the reportand the officer in whose presence the blood was drawn, provided sufficient foundation for admission of the[blood alcohol report] and that lack of opportunity to cross-examine the nurse who drew the sample did notviolate Defendant’s confrontation results.” Dedman, 2004-NMSC-037, ¶1. “When the purpose ofadministrative rules is to ensure the accuracy of test results and those foundational requirements are not met,the test results may be excluded. We are not convinced, however, that strict compliance with all regulatoryrequirements is necessary for admissibility. We conclude that the Legislature intended, in enacting the 1993amendments [to the Implied Consent Act and DWI statutes], to mandate the exclusion of test resultswhenever proof of compliance with a regulation intended to ensure accuracy is missing.” Dedman, 2004-NMSC-037, ¶13.

Bullcoming v. New Mexico, 564 U.S. _____, 131 S. Ct. 2705 (2011). State presented a forensic laboratoryreport certifying the Defendant’s BAC was above the aggravated legal limit using testimony from an analystwho was familiar with laboratory testing procedures, but hadn’t participated or observed the testing on theDefendant’s blood sample (instead of the analyst who signed the certification). The Court held that theassertions of analyst who did the certification are testimonial and that the surrogate testimony of thetestifying analyst did not meet the constitutional requirement of the Confrontation Clause. “The accused’sright is to be confronted with the analyst who made the certification, unless the analyst is unavailable at trial,and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” Id. at 2710.

The actual analyst “certified that he received Bullcoming’s blood sample intact with the seal unbroken, thathe checked to make sure that the forensic report number and the sample number ‘correspond[ed],’ and thathe performed on Bullcoming’s sample a particular test, adhering to a precise protocol. He furtherrepresented, by leaving the ‘[r]emarks’ section of the report blank, that no ‘circumstance orcondition...affect[ed] the integrity of the sample or...the validity of the analysis.’ These representations,relating to past events and human actions not revealed in raw, machine-produced data, are meet for crossexamination.” Id. at 2714. The Court stated that surrogate testimony “could not convey what [the actualanalyst] knew or observed about the events his certification concerned, i.e., the particular test and testingprocess he employed. Nor could such surrogate testimony expose any lapses or lies on the certifyinganalyst’s part.” Id. at 2716.

Dicta in Sotomayor’s partial concurrence:

• Says that not every person noted on the BAC report must testify. Up to the State to decide whatsteps in the chain of custody are so crucial that they require evidence.

• Notes factual distinctions that were not present in this case that may make a difference in the report’sadmissibility: 1) introducing the evidence for an alternative purpose; 2) having a supervisor,reviewer, or someone else with personal connection to the scientific test at issue (i.e. a supervisorwho observed an analyst conducting a test testifying about the results or a report about such results)testify; 3) having an expert witness testify about his independent opinion underlying testimonialreports that weren’t themselves admitted into evidence.

• Notes that this isn’t a case in which the State introduced only machine-generated results, such as aprintout from a gas chromatograph. She is clear that the Court did not decide whether a State couldintroduce raw data generated by a machine in conjunction with the testimony of an expert witness.

67

State v. Rubio, 2002-NMCA-007, 131 N.M. 479. “In order to admit real or demonstrative evidence, ‘theevidence must be identified either visually or by establishing custody of the object from the time of seizureto the time it is offered into evidence.’ The State is not required to establish the chain of custody in sufficientdetail to exclude all possibility of tampering. Rather, there is no abuse of discretion when the preponderanceof the evidence demonstrates that the questioned evidence is what it purports to be.” Rubio, 2002-NMCA-007, ¶16.

State v. Deming, 1959-NMSC-074, 66 N.M. 175. Trial court allowed a medical technician who had onlymade four tests to determine alcoholic content of blood to testify concerning her findings. Court noted thatshe had other relevant experience and that it wasn’t an abuse of discretion for the trial court to have qualifiedher as an expert.

State v. Bowden, 2010-NMCA-070, 148 N.M. 850. Court found that 7.33.2.12 [now 7.33.2.15(A)(2)] andNMSA 1978, §66-8-110 conflicted and applied the general rule that a statute prevails over an inconsistentregulation. NMSA 1978, §66-8-110 “permits test results to be received in evidence regardless of the timeperiod in which the test was administered, but rather than allowing results of tests taken more than threehours after the person was driving to create a presumption of a violation of Section 66-8-102 based on aparticular blood or breath concentration level, it gives the trier of fact the discretion to determine whetherthere is a violation.” Bowden, 2010-NMCA-070, ¶11.

State v. Aleman, 2008-NMCA-137, 145 N.M. 879. “The Protocol in its entirety is not scientific becausesome of the steps the DREs perform merely document a series of observations of ‘the common physicalmanifestations of intoxication,’ and these symptoms are self-explanatory. Because we conclude that theprocess as a whole is not based on ‘a scientific or medical principle,’ we hold that the Protocol is notscientific.” Aleman, 2008-NMCA-137, ¶9. “We do not consider the Protocol’s incorporation of scientifictests, such as HGN or toxicological analysis, to mandate a Daubert analysis for the entire Protocol. Nevertheless, in order for the results of such scientific tests to be admissible, it is necessary for the State toestablish the foundation for the individual scientific tests.” Aleman, 2008-NMCA-137, ¶10. “We thusconclude that the DREs’ testimony about the administration and results of the Protocol relate to otherspecialized knowledge.” Aleman, 2008-NMCA-137, ¶18. “Additionally, the DREs were appropriatelyqualified as experts because the State established that they had undergone extensive training and hadsignificant experience in the administration of the Protocol. Although this evidence would not be sufficientto qualify an expert who would establish a scientific foundation, we conclude that it is a sufficient foundationto qualify an expert to testify regarding specialized knowledge. We are particularly satisfied by the DREs’qualifications as experts with specialized knowledge because the DREs’ opinion will be corroborated by atoxicologist.” Aleman, 2008-NMCA-137, ¶19. “Accordingly, we hold that the district court did not abuseits discretion by finding that the State established that the Protocol met the reliability and validity standardsset forth in Daubert.” Aleman, 2008-NMCA-137, ¶30. (The Protocol has been tested; been subjected to peerreview and publication; there is known rate of error and standards that control the Protocol’s operation; andis generally accepted in the field of forensic toxicology). “...[W]e hold that minor variations in theadministration of the Protocol does not necessarily undermine the admissibility of Protocol evidence.” Aleman, 2008-NMCA-137, ¶2.

68

State v. Nez, 2010-NMCA-092, 148 N.M. 914. “Once, as here, the State has satisfied the blood-drawerqualification and blood draw-method foundation requirements for admission of the test results, we see nobasis on which to deny admission of the blood-alcohol report on confrontation grounds because the blooddrawer is not present at trial to be cross-examined. After blood-drawer qualification and blood-drawprocedure foundational requirements are out of the way, the need to cross-examine the blood drawer isreduced to questions of the chain of custody. As we read Melendez-Diaz and Bullcoming’s reference to theMelendez-Diaz footnote, the absence of the blood drawer from trial and opportunity for a defendant to cross-examine the blood drawer relating to chain of custody does not provide grounds for a confrontation objectionto the admissibility of a blood-alcohol report.” Nez, 2010-NMCA-092, ¶16.

FACTS: Defendant involved in motor vehicle crash. Defendant suspected of DWI andvehicular homicide. Deputy obtained search warrant for Defendant’s blood. Bloodextracted at hospital by medical personnel. Deputy had her use an unused blood kitfrom SLD. Deputy had the “Report of Blood Alcohol Analysis” form. Deputyobserved Defendant’s blood being drawn in emergency room by nurse who wasappropriately dressed and wearing ID tag showing she was an R.N. and working forhospital. Deputy saw nurse use the contents of the SLD kit , including a non-alcohol based swab to clean Defendant’s arm prior to extraction. After inserting aneedle into Defendant’s vein, nurse attached first SLD-provided vacuum tube toneedle that drew sample of Defendant’s blood, handed that tube to Deputy, and thenobtained a second sample using second SLD-provided vacuum tube, which was alsodirectly handed to Deputy. Deputy labeled and sealed the two vials of blood andmailed form and kit containing blood samples to SLD.

69

Birchfield v. North Dakota, 579 U.S. _____, 136 S. Ct. 2160 (2016). “In the past, the typical penalty fornoncompliance [with implied consent laws] was suspension or revocation of a motorist’s license. The casesnow before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested afterbeing lawfully arrested for driving while impaired. The question presented is whether such laws violate theFourth Amendment’s prohibition against unreasonable searches.” Id. at 2166-2167. “The [Fourth]Amendment thus prohibits ‘unreasonable searches,’ and our cases establish that the taking of a blood sampleor the administration of a breath test is a search. The question, then, is whether the warrantless searches atissue here were reasonable.” Id. at 2173. “‘[T]he text of the Fourth Amendment does not specify when asearch warrant must be obtained.’ But ‘this Court has inferred that a warrant must [usually] be secured.’ This usual requirement, however, is subject to a number of exceptions.” Id. at 2173. “We have previouslyhad occasion to examine whether one such exception–for ‘exigent circumstances’–applies in drunk-drivinginvestigations. The exigent circumstances exception allows a warrantless search when an emergency leavespolice insufficient time to seek a warrant.” Id. at 2173. (Internal citations omitted). “In Schmerber v.California, we held that drunk driving may present such an exigency.” Id. at 2173. “More recently, though,we have held that the natural dissipation of alcohol from the bloodstream does not always constitute anexigency justifying the warrantless taking of a blood sample.” Id. at 2174. “Blood tests are a differentmatter. They ‘require piercing of the skin’ and extract a part of the subject’s body...It is significantly moreintrusive than blowing into a tube. In addition, a blood test, unlike a breath test, places in the hands of lawenforcement authorities a sample that can be preserved and from which it is possible to extract informationbeyond a simple BAC reading. Even if the law enforcement agency is precluded from testing the blood forany purpose other than to measure BAC, the potential remains and may result in anxiety for the persontested.” Id. at 2178. (Internal citations omitted). “Blood tests are significantly more intrusive, and theirreasonableness must be judged in light of the availability of the less invasive alternative of a breathtest...Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to doso in the particular circumstances or from relying on the exigent circumstances exception to the warrantrequirement when there is not...It is true that a blood test, unlike a breath test, may be administered to aperson who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take abreath test due to profound intoxication or injuries. But we have no reason to believe that such situationsare common in drunk-driving arrests, and when they arise, the police may apply for a warrant if needbe....Because breath tests are significantly less intrusive than blood tests and in most cases amply serve lawenforcement interests, we conclude that a breath test, but not a blood test, may be administered as a searchincident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest,a warrant is not needed in this situation.” Id. at 2184-2185. “Having concluded that the search incident toarrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents’alternative argument that such tests are justified based on the driver’s legally implied consent to submit tothem...[A]pplying [a reasonableness] standard, we conclude that motorists cannot be deemed to haveconsented to submit to a blood test on pain of committing a criminal offense.” Id. at 2186.NOTE: Petitioner Beylund was not prosecuted for refusing a test. He submitted to a blood test after policetold him that the law required his submission. The Court remanded his case to the state level to reevaluatethe voluntariness of his consent given the partial inaccuracy of the officer’s advisory.

70

Blood Warrants

NMSA 1978, §66-8-111(A). “If a person under arrest for violation of an offense enumerated in the MotorVehicle Code [66-1-1 NMSA 1978] refuses upon request of a law enforcement officer to submit to chemicaltests designated by the law enforcement agency as provided in Section 66-8-107 NMSA 1978, none shall beadministered except when a municipal judge, magistrate or district judge issues a search warrant authorizingchemical tests as provided in Section 66-8-107 NMSA 1978 upon finding in a law enforcement officer’swritten affidavit that there is probable cause to believe that the person has driven a motor vehicle while underthe influence of alcohol or a controlled substance, thereby causing the death or great bodily injury of anotherperson, or there is probable cause to believe that the person has committed a felony while under the influenceof alcohol or a controlled substance and that chemical tests as provided in Section 66-8-107 NMSA 1978 willproduce material evidence in a felony prosecution.”

State v. Duquette, 2000-NMCA-006, 128 N.M. 530. “‘[T]he [search warrant affidavit] must containsufficient facts to enable the issuing magistrate to independently pass judgment on the existence of probablecause.’ ‘[O]nly a probability of criminal conduct need be shown.’ The affidavit need not establish guiltbeyond a reasonable doubt.” Duquette, 2000-NMCA-006, ¶11. (Internal citations omitted). “The ImpliedConsent Act is intended ‘to deter driving while intoxicated and to aid in discovering and removing theintoxicated driver from the highway.’ We see no rational basis on which to rule that a DWI offense cannotbe the felony needed to obtain a search warrant under Section 66-8-111(A). Section 66-8-111(A) is part ofan act that was designed to curtail the very offense at issue. Moreover, the Legislature did not enumeratea list of felonies that can or cannot be used as the felony offense to obtain a search warrant. Therefore, webelieve that the Legislature intended for a DWI offense to be used as a felony for which there must beprobable cause to justify a search warrant under Section 66-8-111(A).” Duquette, 2000-NMCA-006, ¶16. (Internal citations omitted). “[Section 66-8-111(A)] allows for those arrested for DWI to refuse to take achemical test. However, a warrant may nevertheless be issued if a magistrate finds probable cause to believethat: (1) ‘the person has driven a motor vehicle while under the influence of alcohol or a controlledsubstance, thereby causing the death or great bodily injury of another person;’ or (2) ‘the person hascommitted a felony while under the influence of alcohol or a controlled substance and that chemicaltests...will produce material evidence in a felony prosecution...’ Based on our reading of the language inSection 66-8-111(A), we do not believe that a refusal is a condition precedent to issuance of a search warrantwhen, as here, there exists probable cause to believe Defendant committed a felony while under the influenceof alcohol.” Duquette, 2000-NMCA-006, ¶20. (Internal citations omitted). “Thus, a search warrant for achemical test may be issued pursuant to Section 66-8-111(A) irrespective of whether a person refuses to takethe test.” Duquette, 2000-NMCA-006, ¶20. (Internal citations omitted).

FACTS: Officer dispatched to a domestic dispute and informed that a particular truck wasleaving residence. Officer saw a truck matching description and stopped it. Defendant admitted to having come from residence. He had bloodshot eyes, slurredspeech, and admitted to consuming three beers. Defendant refused SFSTs and wasarrested for DWI. He initially refused to take a breath test and later agreed to takethe test. His attempts resulted in “invalid sample” and “no sample introduced.” Officer obtained Defendant’s driving record and believed that he was investigatinga 4th offense. He obtained a search warrant to take Defendant’s blood, and theblood test revealed a level over the legal limit. In the search warrant affidavit,Officer wrote: “Upon an examination of the above listed defendant[’]s drivinghistory there was sufficient evidence to charge the above listed defendant with afourth offense or subsequent DWI.” The Court held that the affidavit was adequate.

71

State v. Garnenez, 2015-NMCA-022, cert. denied, (No. 35, 038, Jan. 23, 2015). “This case presents the issueof whether a blood draw can proceed solely pursuant to a valid search warrant, outside of the ImpliedConsent Act...We hold that it can.” Garnenez, 2015-NMCA-022, ¶1. “...[W]e hold that a constitutionallypermissible search of a person’s blood may arise either from an arrest pursuant to the Implied Consent Actor a valid search warrant supported by probable cause.” Garnenez, 2015-NMCA-022, ¶4. “In State v. House,we held that an affidavit for a search warrant authorizing a blood draw did not need to state that a defendantwas arrested and only needed to show probable cause...Additionally, we have held that where probable causeexists, refusal under the Implied Consent Act is not required before an officer may obtain a search warrantfor a blood test...We do not, therefore, read our Implied Consent Act to prohibit an officer from obtaininga blood sample using a search warrant supported by probable cause.” Garnenez, 2015-NMCA-022, ¶¶7-8. “In light of our preference for a search warrant under the Fourth Amendment and our case law interpretingthe Implied Consent Act, we conclude that the valid search warrant was a permissible alternative toproceeding under the Implied Consent Act in order to perform a blood draw.” Garnenez, 2015-NMCA-022,¶9.

FACTS: Defendant was driving and veered off the road, struck a light pole, and rolled overmultiple times. Two passengers died. Defendant bleeding from head wound, hada fractured arm, and was taken to hospital. Officer responded to scene and spoketo Defendant at hospital. Officer detected slight odor of alcohol and noted thatDefendant had a flushed complexion and confused speech. Officer did not arresther or read her the ICA. Officer questioned Defendant’s ability to give consentbecause she appeared to be in pain from her injuries, and Officer was unsure ifmedications in Defendant’s system affected her judgment. Officer sought andobtained a search warrant to draw Defendant’s blood. Defendant was not formallyarrested until after blood draw and after she was discharged from hospital.

72

Birchfield v. North Dakota, 579 U.S. _____, 136 S. Ct. 2160 (2016). “In the past, the typical penalty fornoncompliance [with implied consent laws] was suspension or revocation of a motorist’s license. The casesnow before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested afterbeing lawfully arrested for driving while impaired. The question presented is whether such laws violate theFourth Amendment’s prohibition against unreasonable searches.” Id. at 2166-2167. “The [Fourth]Amendment thus prohibits ‘unreasonable searches,’ and our cases establish that the taking of a blood sampleor the administration of a breath test is a search. The question, then, is whether the warrantless searches atissue here were reasonable.” Id. at 2173. “‘[T]he text of the Fourth Amendment does not specify when asearch warrant must be obtained.’ But ‘this Court has inferred that a warrant must [usually] be secured.’ This usual requirement, however, is subject to a number of exceptions.” Id. at 2173. “We have previouslyhad occasion to examine whether one such exception–for ‘exigent circumstances’–applies in drunk-drivinginvestigations. The exigent circumstances exception allows a warrantless search when an emergency leavespolice insufficient time to seek a warrant.” Id. at 2173. (Internal citations omitted). “In Schmerber v.California, we held that drunk driving may present such an exigency.” Id. at 2173. “More recently, though,we have held that the natural dissipation of alcohol from the bloodstream does not always constitute anexigency justifying the warrantless taking of a blood sample.” Id. at 2174. “Blood tests are a differentmatter. They ‘require piercing of the skin’ and extract a part of the subject’s body...It is significantly moreintrusive than blowing into a tube. In addition, a blood test, unlike a breath test, places in the hands of lawenforcement authorities a sample that can be preserved and from which it is possible to extract informationbeyond a simple BAC reading. Even if the law enforcement agency is precluded from testing the blood forany purpose other than to measure BAC, the potential remains and may result in anxiety for the persontested.” Id. at 2178. (Internal citations omitted). “Blood tests are significantly more intrusive, and theirreasonableness must be judged in light of the availability of the less invasive alternative of a breathtest...Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to doso in the particular circumstances or from relying on the exigent circumstances exception to the warrantrequirement when there is not...It is true that a blood test, unlike a breath test, may be administered to aperson who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take abreath test due to profound intoxication or injuries. But we have no reason to believe that such situationsare common in drunk-driving arrests, and when they arise, the police may apply for a warrant if needbe....Because breath tests are significantly less intrusive than blood tests and in most cases amply serve lawenforcement interests, we conclude that a breath test, but not a blood test, may be administered as a searchincident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest,a warrant is not needed in this situation.” Id. at 2184-2185. “Having concluded that the search incident toarrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents’alternative argument that such tests are justified based on the driver’s legally implied consent to submit tothem...[A]pplying [a reasonableness] standard, we conclude that motorists cannot be deemed to haveconsented to submit to a blood test on pain of committing a criminal offense.” Id. at 2186.NOTE: Petitioner Beylund was not prosecuted for refusing a test. He submitted to a blood test after policetold him that the law required his submission. The Court remanded his case to the state level to reevaluatethe voluntariness of his consent given the partial inaccuracy of the officer’s advisory.

73

Confrontation

State v. Anaya, 2012-NMCA-094. “Nothing in Melendez-Diaz or Bullcoming requires the State to producea witness and provide foundational testimony that the IR 5000 is scientifically accurate and reliable inmeasuring the alcohol level in a person’s breath. The New Mexico Legislature has established the scientificprocedures necessary to ensure the accuracy of breath tests by mandating that breath tests taken pursuant tothe Implied Consent Act be approved by the SLD. In doing so, the Legislature has statutorily given SLD theoriginal authority to determine which scientific tests and procedures will be recognized to produce legallyaccurate and reliable breath test results. As a result, the admissibility of breath test results turns on eachparticular test and the officer’s compliance with the SLD regulations codified at 7.33.2.1-.18 NMAC(4/30/10).” Anaya, 2012-NMCA-094, ¶20. “It is clear that not all foundational evidence implicates theConfrontation Clause. It is the testimonial nature of a statement and its use against the defendant that triggersConfrontation Clause protection. In determining whether compliance with SLD procedures implicated theConfrontation Clause, this Court has previously held that issues that are preliminary and foundational innature are non-testimonial. We explained that preliminary factual evidence is non-testimonial because itbears an attenuated relationship to conviction. Foundational information regarding the scientific aspects ofa breathalyzer machine would require too much of an inferential leap to serve as testimonial evidence of adefendant’s guilt. As a result, factual evidence related to the scientific aspects of the certification proceduresof the IR 5000 machine are non-testimonial because they would support one foundational fact, the scientificaccuracy of the machine. Thus, the Confrontation Clause did not apply to the preliminary evidence regardingthe scientific aspects for certifying the machine because ‘[t]he witness that ‘the d]efendant demand[ed] forcross-examination would present nothing more than preliminary factual evidence to establish a foundationfor the admission of evidence to be used at trial. Although we decided Granillo-Macias prior to the UnitedStates Supreme Court’s recent holdings in Melendez-Diaz and Bullcoming, we conclude that our holding inGranillo-Macias is in line with the current status of Confrontation Clause jurisprudence.” Anaya, 2012-NMCA-094, ¶21-22. “We hold that the scientific reliability and functionality of the IR 5000 used to testDefendant’s breath is a foundational issue that is only subject to challenge through expert testimony. Inaddition, the scientific aspects of the IR 5000 machine are non-testimonial facts and do not implicate theConfrontation Clause.” Anaya, 2012-NMCA-094, ¶22. “As a result, our holding in Granillo-Macias thatpreliminary, foundational information does not implicate the Confrontation Clause remains consistent withthe United States Supreme Court’s holdings in Melendez-Diaz and Bullcoming.” Anaya, 2012-NMCA-094,¶24. “While the IR 5000 may be manufactured to produce evidence for later use in criminal andadministrative hearings, the machine is only a tool of scientific measurement. The calibration of the IR 5000,for example is conducted in compliance with SLD regulations to achieve accurate measurements, not inanticipation of any particular defendant’s case or trial. Additionally, once calibrated, there is no guaranteethat a particular IR 5000 machine will ever be used in any particular case.” Anaya, 2012-NMCA-094, ¶25. “Because the underlying science and functionality of the IR 5000 bears only on the measurement to be usedin conducting an analytical, scientific process, the scientific aspects of the breathalyzer machine are non-testimonial and the Confrontation Clause does not apply. In this case, it is the officer’s testimony regardingDefendant’s act of blowing his breath into the machine that constitutes the testimonial evidence that requiresthe officer who administered the breathalyzer test to be present at trial and subject to cross-examination.” Anaya, 2012-NMCA-094, ¶¶25-26. “Any concerns about non-testimonial, preliminary, or foundationalinformation, such as the accuracy or reliability of a machine remain subject to challenge as part of aDefendant’s evidence when he presents his case. If Defendant wanted to attack the scientific methods usedin the construction or operation of the IR 5000, it was incumbent on him to present the relevant scientificevidence as part of his defense.” Anaya, 2012-NMCA-094, ¶27.

74

Bullcoming v. New Mexico, 564 U.S. _____, 131 S. Ct. 2705 (2011). State presented a forensic laboratoryreport certifying the Defendant’s BAC was above the aggravated legal limit using testimony from an analystwho was familiar with laboratory testing procedures, but hadn’t participated or observed the testing on theDefendant’s blood sample (instead of the analyst who signed the certification). The Court held that theassertions of analyst who did the certification are testimonial and that the surrogate testimony of thetestifying analyst did not meet the constitutional requirement of the Confrontation Clause. “The accused’sright is to be confronted with the analyst who made the certification, unless the analyst is unavailable at trial,and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” Id. at 2710.

The actual analyst “certified that he received Bullcoming’s blood sample intact with the seal unbroken, thathe checked to make sure that the forensic report number and the sample number ‘correspond[ed],’ and thathe performed on Bullcoming’s sample a particular test, adhering to a precise protocol. He furtherrepresented, by leaving the ‘[r]emarks’ section of the report blank, that no ‘circumstance orcondition...affect[ed] the integrity of the sample or...the validity of the analysis.’ These representations,relating to past events and human actions not revealed in raw, machine-produced data, are meet for crossexamination.” Id. at 2714. The Court stated that surrogate testimony “could not convey what [the actualanalyst] knew or observed about the events his certification concerned, i.e., the particular test and testingprocess he employed. Nor could such surrogate testimony expose any lapses or lies on the certifyinganalyst’s part.” Id. at 2716.

Dicta in Sotomayor’s partial concurrence:

• Says that not every person noted on the BAC report must testify. Up to the State to decide whatsteps in the chain of custody are so crucial that they require evidence.

• Notes factual distinctions that were not present in this case that may make a difference in the report’sadmissibility: 1) introducing the evidence for an alternative purpose; 2) having a supervisor,reviewer, or someone else with personal connection to the scientific test at issue (i.e. a supervisorwho observed an analyst conducting a test testifying about the results or a report about such results)testify; 3) having an expert witness testify about his independent opinion underlying testimonialreports that weren’t themselves admitted into evidence.

• Notes that this isn’t a case in which the State introduced only machine-generated results, such as aprintout from a gas chromatograph. She is clear that the Court did not decide whether a State couldintroduce raw data generated by a machine in conjunction with the testimony of an expert witness.

State v. Granillo-Macias, 2008-NMCA-021, 143 N.M. 455. “It is important to note the distinction between(1) preliminary factual evidence (testimony as to certification) to establish a foundation for the admissionof evidence to be used at trial (the breath test results), and (2) the evidence to be used at trial (the breath testresults). The witness that Defendant demands for cross-examination [the person who had actual knowledgeof the certification process and of the actual certification of the machine] would present nothing more thanpreliminary factual evidence to establish a foundation for the admission of evidence to be used at trial.” Granillo-Macias, 2008-NMCA-021, ¶21. “...[T]he Court in Martinez stated that ‘[t]he protections affordedby the Confrontation Clause do not extend to preliminary questions of fact.’ We consider this statement tobe binding precedent. Thus, under Martinez, because Defendant seeks only to cross-examine on preliminaryquestions of fact, the Confrontation Clause offers Defendant no protection.” Granillo-Macias, 2008-NMCA-021, ¶22.

75

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). “‘[I]n all criminal prosecutions, the accused shallenjoy the right...to be confronted with the witnesses against him...’ [I]t guarantees a defendant’s right toconfront those ‘who ‘bear testimony’’ against him. A witness’s testimony against a defendant is thusinadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prioropportunity for cross-examination.” Id. at 2531. Class of testimonial statements covered by theConfrontation Clause: “‘Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, priortestimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants wouldreasonably expect to be used prosecutorially; extrajudicial statements...contained in formalized testimonialmaterials, such as affidavits, depositions, prior testimony, or confessions; statements that were made undercircumstances which would lead an objective witness reasonably to believe that the statement would beavailable for use at a later trial.’” Id. at 2531. “...[U]nder our decision in Crawford the [certificates ofanalysis showing the results of the forensic analysis performed on the seized substances that were swornbefore a notary public by the analysts] were testimonial statements, and that analysts were ‘witnesses’ forpurposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial andthat petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘‘be confrontedwith’’ the analysts at trial. Id. at 2532. “The analysts’ certificates-like police reports generated by lawenforcement officials-do not qualify as business or public records...” Id. at 2538. “Business and publicrecords are generally admissible absent confrontation not because they qualify under an exception to thehearsay rules, but because–having been created for the administration of an entity’s affairs and not for thepurpose of establishing or proving some fact at trial–they are not testimonial. Whether or not they qualifyas business or official records, the analysts’ statements here–prepared specifically for use at petitioner’strial–were testimony against petitioner, and the analysts were subject to confrontation under the SixthAmendment.” Id. at 2538.

State v. Dedman, 2004-NMSC-037, 136 N.M. 561, overruled on other grounds by State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, overruled on other grounds by Bullcoming v. New Mexico, 131 S. Ct. 2705(2011). (Court’s finding that BAC reports are not testimonial was overruled by State v. Bullcoming). “Wehold that the State’s offer of proof, which included the testimony of the toxicologist who prepared the reportand the officer in whose presence the blood was drawn, provided sufficient foundation for admission of the[blood alcohol report] and that lack of opportunity to cross-examine the nurse who drew the sample did notviolate Defendant’s confrontation results.” Dedman, 2004-NMSC-037, ¶1.

State v. Aragon, 2010-NMSC-008, 147 N.M. 474, overruled on other grounds by State v. Tollardo, 2012-NMSC-008. “...[W]e hold that the report prepared by the non-testifying forensic scientist and the trialtestimony regarding that report were inadmissible and violated Defendant’s right of confrontation.” Aragon,2010-NMSC-008, ¶2. “Once it has been established that the Confrontation Clause does not bar admissionof the statement, the rules of evidence govern whether the statement is admissible.” Aragon, 2010-NMSC-008, ¶6. “In essence, a person is a witness for Confrontation Clause purposes when that person’s statementsgo to an issue of guilt or innocence.” Aragon, 2010-NMSC-008, ¶8. “The chemical forensic reports at issuein this case are inadmissible absent confrontation, because although it is the ‘business’ of the Southern CrimeLaboratory, a public agency, to analyze substances for narcotic content, the laboratory’s purpose forpreparing chemical forensic reports is for their use in court, not as a function of the laboratory’sadministrative activities...As a result, Champagne’s chemical forensic report and Young’s testimony abouther report were not admissible and violate Defendant’s right of confrontation if Defendant is deprived ofmeaningful cross-examination.” Aragon, 2010-NMSC-008, ¶19. “Experts and their opinions are notfungible when the testifying expert has not formed an independent conclusion from the underlying facts ordata, but merely restates the hearsay opinion of a non-testifying expert.” Aragon, 2010-NMSC-008, ¶32.

76

State v. Nez, 2010-NMCA-092, 148 N.M. 914. “Once, as here, the State has satisfied the blood-drawerqualification and blood draw-method foundation requirements for admission of the test results, we see nobasis on which to deny admission of the blood-alcohol report on confrontation grounds because the blooddrawer is not present at trial to be cross-examined. After blood-drawer qualification and blood-drawprocedure foundational requirements are out of the way, the need to cross-examine the blood drawer isreduced to questions of the chain of custody. As we read Melendez-Diaz and Bullcoming’s reference to theMelendez-Diaz footnote, the absence of the blood drawer from trial and opportunity for a defendant to cross-examine the blood drawer relating to chain of custody does not provide grounds for a confrontation objectionto the admissibility of a blood-alcohol report.” Nez, 2010-NMCA-092, ¶16.

FACTS: Defendant involved in motor vehicle crash. Defendant suspected of DWI andvehicular homicide. Deputy obtained search warrant for Defendant’s blood. Bloodextracted at hospital by medical personnel. Deputy had her use an unused blood kitfrom SLD. Deputy had the “Report of Blood Alcohol Analysis” form. Deputyobserved Defendant’s blood being drawn in emergency room by nurse who wasappropriately dressed and wearing ID tag showing she was an R.N. and working forhospital. Deputy saw nurse use the contents of the SLD kit , including a non-alcohol based swab to clean Defendant’s arm prior to extraction. After inserting aneedle into Defendant’s vein, nurse attached first SLD-provided vacuum tube toneedle that drew sample of Defendant’s blood, handed that tube to Deputy, and thenobtained a second sample using second SLD-provided vacuum tube, which was alsodirectly handed to Deputy. Deputy labeled and sealed the two vials of blood andmailed form and kit containing blood samples to SLD.

State v. Moncayo, 2012-NMCA-066. “There is a distinction between an expert witness parroting results ofa non-testifying analyst’s report, and an expert testifying regarding his or her independent opinion basedupon a non-testifying analyst’s report. Our Supreme Court in Aragon held that had the testifying experttestified unequivocally that the opinion was his own and formed based upon underlying facts and datareasonably relied upon in the field, the defendant could have cross-examined the expert based on thoseopinions. In State v. Jaramillo, this Court interpreted this language to provide a narrow exception: an expertcan testify about his or her own opinion based on facts and data contained in a non-testifying expert’s report,but only if the testifying expert unequivocally testifies that it was his opinion, not the opinion of the non-testifying witness, and if the testifying expert testifies that the facts and data are the types relied upon byexperts in the field.” Moncayo, 2012-NMCA-066, ¶11.

FACTS: Expert Bergeron conducted forensic testing and completed a laboratory reportfinding that the baggie seen being held by Defendant contained cocaine. At firsttrial, expert Nathanson testified regarding Bergeron’s report. Bergeron was stillemployed with the laboratory, but had chosen to remain at the laboratory to conductan interview of a job applicant on the day of trial. District Court allowed Nathansonto testify about the report. Jury hung on the possession charge, and Defendant wasretried. At the second trial, expert Beninato testified. He had not personally testedthe substance or completed the report. Court held that the circumstances in theinstant case did not meet the exception because Beninato testified about Bergeron’sreport, Bergeron’s conclusions, and whether he agreed with Bergeron’s conclusions. Beninato never testified unequivocally that it was his opinion and not that ofBergeron.

77

State v. Dorais, 2016-NMCA-049, cert. denied, (No. 34,777, May 3, 2016). “But there is no evidence thatthe testifying witness observed the conduct of the test. Indeed, the facts here are nearly exactly like thosein Bullcoming, to wit: (1) a certified report showing Defendant’s blood alcohol content was admitted intoevidence, (2) the analyst who certified the results of the blood testing did not testify, (3) another SLDemployee–who reviewed the analyst’s documentation but did not observe the testing–testified, includingabout the results of the test. Discerning no material difference between the facts here and those inBullcoming, we conclude that Defendant’s right to confront the analyst whose certified statement wasadmitted into evidence was violated.” Dorais, 2016-NMCA-049, ¶32. (Internal citations omitted).

FACTS: Court permitted the State to admit a report of Defendant’s blood alcohol contentbased on testimony of a SLD employee who did not analyze blood sample. Statemade no arguments that analyst who conducted test and certified the results wasunavailable or that Defendant had opportunity to confront him before trial. Stateargued instead that testifying witness was a “supervising analyst.”

State v. Garnenez, 2015-NMCA-022, cert. denied, (No. 35,038, Jan. 23, 2015). “To the extent Defendantcontends that live testimony from the nurses who performed Defendant’s blood draw was needed to satisfythe requirements of the Confrontation Clause, we disagree.” Garnenez, 2015-NMCA-022, ¶37.

State v. Thomas, 2016-NMSC-024. “A criminal defendant may not be denied a physical, face-to-faceconfrontation with a witness who testifies at trial unless the court has made a factual finding of necessity tofurther an important public policy and has ensured the presence of other confrontation elements concerningthe witness testimony including administration of the oath, the opportunity for cross-examination, and theallowance for observation of witness demeanor by the trier of fact.” Thomas, 2016-NMSC-024, ¶29.

78

State v. Huettl, 2013-NMCA-038, cert. quashed, 2014-NMCERT-5. “We further hold that because theevidence shows that [the analyst’s] role in the actual testing process appeared to have been limited to simplyplacing the substance onto the spectrophotometer, and because [the forensic scientist and forensic labsupervisor] testified only as to his own analysis and interpretation of the data generated by thespectrophotometer, concluding that the evidence contained methamphetamine, Defendant’s right toconfrontation was not violated.” Huettl, 2013-NMCA-038, ¶6. “...[No] testimonial statement by [theanalyst] or a functional equivalent was admitted as evidence against Defendant. Thus in no way was [theanalyst] a ‘witness against’ Defendant; and accordingly, Defendant did not have a constitutional right toconfront her. To the extent that Defendant claims that the testing process itself–that is, [the analyst’s]operation of the spectrophotometer that led to the production of raw data, was activity that constituted atestimonial statement that gave rise to his confrontation right, for the reasons that follow, we do not agree. Williams, Bullcoming, and Melendez-Diaz do not support the notion that a defendant has the right to confronta laboratory analyst who, having participated in some aspect of evidence analysis, nevertheless did not recordany certifications, statements, or conclusions that were offered as evidence. Unlike the analysts inBullcoming and Melendez-Diaz, [this analyst] did not make, and the State did not seek to admit, any formalstatements or declarations as to her testing process or as to her conclusions. Thus, unlike the affidavits inMelendez-Diaz and the certifications in the report in Bullcoming, no out-of-court statement of [this analyst]was offered or admitted into evidence that fell within, or even resembled, the core class of testimonialstatements that are concomitant with the confrontation right.” Huettl, 2013-NMCA-038, ¶¶27-28. (Internalcitations omitted). “Defendant is left solely with a chain-of-custody attack based on the fact that [the analyst]did not testify at trial regarding her placement of the evidence onto the spectrophotometer.” Huettl, 2013-NMCA-038, ¶30. “The absence of [the analyst’s] testimony regarding her role in the chain of custody wentto the weight of the evidence not the admissibility of it. The district court concluded that the chain ofcustody was sufficient because a ‘preponderance of the evidence’ showed that the evidence was what itpurported to be.” Huettl, 2013-NMCA-038, ¶31. “The Confrontation Clause ‘forbids the introduction oftestimonial hearsay as evidence in itself, but it in no way prevents expert witnesses from offering theirindependent judgments merely because those judgments were in some part informed by their exposure tootherwise inadmissible evidence. Under Crawford, ‘[t]he question is whether the expert is, in essence, givingan independent judgment or merely acting as a transmitter for testimonial hearsay.’ Provided that the expertis applying personal training and experience to the evidence and provided that he or she testifies to his or herindependent judgment, derived from an independent evaluation of that evidence, there will typically be noconfrontation problem because the expert’s opinion ‘will be an original product that can be tested throughcross-examination.’” Huettl, 2013-NMCA-038, ¶34. “...[An] expert who has analyzed the raw datagenerated by another analyst and who has formed independent conclusions based upon that analysis maytestify as to those conclusions.” Huettl, 2013-NMCA-038, ¶36. “What has emerged as clearly impermissibleis an expert’s testimony which is based solely upon a non-testifying analyst’s analysis and conclusions. Under this impermissible scenario, the expert will have failed to form an independent opinion and is merelyacting as a conduit for the presentation of a non-testifying witness’s testimonial hearsay. This practice,commonly referred to as ‘parroting,’ is a violation of the right to confrontation.” Huettl, 2013-NMCA-038,¶¶37-38.

FACTS: State presented a forensic scientist to testify that evidence found in Defendant’sroom was meth. He testified that evidence was analyzed by a spectrophotometerand the raw data produced is interpreted by an analyst. He reviewed the data andformed an expert opinion that the substance was meth. He did not personally placethe evidence onto the spectrophotometer because that was done by an analyst. Court held that Defendant’s confrontation right was not violated because theanalyst’s role was just placing the substance onto the spectrophotometer, and thescientist testified only to his own analysis and interpretation of the data.

79

Impaired to the Slightest Degree

UJI 14-4501 Driving While Under the Influence of Intoxicating Liquor; Essential Elements.“For you to find the defendant guilty of driving while under the influence of intoxicating liquor, the statemust prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:1. The defendant operated a motor vehicle;2. At that time, the defendant was under the influence of intoxicating liquor, that is, as a result of

drinking liquor the defendant was less able to the slightest degree, either mentally or physically, orboth, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to theperson and the public;

3. This happened in Bernalillo County, New Mexico, on or about the __ day of ________, _____.”

State v. Neal, 2008-NMCA-008, 143 N.M. 341. “It is a truism that a person who is even to the slightestextent under the influence of liquor, in the common and well-understood acceptation of the term, is to somedegree at least less able, either mentally or physically or both, to exercise the clear judgment and steady handnecessary to handle as powerful and dangerous a mechanism as a modern automobile with safety to himselfand the public.***The Legislature has placed no limitation on the extent of the influence required, nor canwe add to their language.” Neal, 2008-NMCA-008, ¶25. “If that drink does not cause him to be influencedin the ordinary and well-understood meaning of the term, he is not affected by the law.” Neal, 2008-NMCA-008, ¶25. “The lack of blood or breath test results does not invalidate a conviction under Section 66-8-102(A). Scientific proof of the Defendant’s blood or breath alcohol content is not required.” Neal, 2008-NMCA-008, ¶27.

State v. Dutchover, 1973-NMCA-052, 85 N.M. 72. “‘Under the influence’ means that to the slightest degreedefendant was less able, either mentally or physically, or both, to exercise the clear judgment and steady handnecessary to handle an automobile with safety to himself and the public.” Dutchover, 1973-NMCA-052, 73.

State v. Caudillo, 2003-NMCA-042, 133 N.M. 468. “We also acknowledge our precedent stating that theodor of alcohol on one’s breath, taken alone, ‘is not a sufficient basis for inferring [that the defendant] wasunder the influence of intoxicating liquor.’ However, there is more to this case than simply the odor ofalcohol and an admission to consuming alcohol. These factors, along with other symptoms of intoxicationdescribed above, when combined with Defendant’s refusal to submit to a blood test analysis, are sufficientto create the necessary inferences of intoxication and impairment.” Caudillo, 2003-NMCA-042, ¶10.

State v. Sanchez, 2001-NMCA-109, 131 N.M. 355. “An officer does not have to observe a suspect actuallydriving in an impaired manner if the officer, based upon all the facts and circumstances, has ‘reasonablegrounds to believe that Defendant had been driving while intoxicated.’” Sanchez, 2001-NMCA-109, ¶6(citing from State v. Jones, 1998-NMCA-076, ¶10).

State v. Garnenez, 2015-NMCA-022, cert. denied, (No. 35, 038, Jan. 23, 2015). “We have previously heldthat BAC results are relevant under the implied to the slightest degree theory to show ‘that [a d]efendant hadalcohol in his [or her] system and, regardless of the numerical BAC, tended to show that [the d]efendant’spoor driving...was a result of drinking liquor.” State v. Garnenez, 2015-NMCA-022, ¶34. (Internal citationsomitted).

NMSA 1978, §66-8-110 (B)(1). When the blood or breath of the person tested contains “an alcoholconcentration of less than four one hundredths [0.04], it shall be presumed that the person was not under theinfluence of intoxicating liquor.”

80

NMSA 1978, §66-8-110 (B)(2). When the blood or breath of the person tested contains “an alcoholconcentration of at least four one hundredths [0.04] but less than eight one hundredths [0.08]: (a) nopresumption shall be made that the person either was or was not under the influence of intoxicating liquor,unless the person is driving a commercial motor vehicle; and (b) the amount of alcohol in the person’s bloodor breath may be considered with other competent evidence in determining whether the person was underthe influence of intoxicating liquor...” (Emphasis added).

NMSA 1978, §66-8-110 (B)(3). When the blood or breath of the person tested contains “an alcoholconcentration of four one hundredths [0.04] or more and the person is driving a commercial motor vehicle,it shall be presumed that the person was under the influence of intoxicating liquor.”

81

Driving Signs ofIntoxication

Admissions SFSTs

State v. Neal2008-NMCA-008,143 N.M. 341

Conviction based onsubstantial evidencethat Defendant wasDWI

5 mph below speedlimit

Crossed overshoulder line 3times

Odor of alcohol

Bloodshot, wateryeyes

Couple of drinks W&T: 6 stepstotal/didn’tmaintain stanceduring instructionphase/raised arms

OLS: sway/raisedarms

State v. Soto2007-NMCA-077,142 N.M. 032

Based on facts, a juryentitled to find thatDefendant was impairedto slightest degree

Nothing unusual Very strong odorof alcoholicbeverage

Slurred speech

Red bloodshotwatery eyes

Been drinking athis mother’sapartment

Open beer cansat apartment

None done forofficer safety

State v. Caudillo2003-NMCA-042,133 N.M. 468

Facts sufficient to createnecessary inferences ofintoxication andimpairment

Single-vehiclerollover

Officer determinedthat front tireblowout causedvehicle to veer offroad, but vehiclespeeding

Strong odor ofalcohol comingfrom vehicle andDefendant

Slurred speech

Bloodshot, wateryeyes

A few beers,“but not toomuch”

Beer cans foundinside andoutsideDefendant’svehicle

None done due toDefendant’sinjuries

State v. Sanchez2001-NMCA-109,131 N.M. 355

Sufficient evidence tosupport Defendant’sconviction for DWI-Court characterized theevidence as “marginalat best,” but notinsufficient as a matterof law

DWI roadblock Strong odor ofalcohol

Bloodshot, wateryeyes

Two beers Defendant refusedsaying “I am notgoing to donothing. Let’s goto jail.”

Defendantwearing leg brace

State v. Jones1998-NMCA-076,125 N.M. 556

Officer had reasonablegrounds to believeDefendant had beenDWI

Defendant rear-ended anothervehicle

Strong odor ofalcohol

Bloodshot, wateryeyes

Slurred speech

Swayed whiletalking to theofficer

2 beers Performed all 3SFSTs poorly

82

State v. Gutierrez1996-NMCA-001,121 N.M. 191

Evidence fullysupported Defendant’sconviction

Defendant weavinginto other lanes oftraffic

Narrowly missedhitting a truck

Odor of alcohol

Bloodshot, wateryeyes

Admitted todrinking andsmokingmarijuana

Performed all 3SFSTs poorly

State v. Ruiz1995-NMCA-098,120 N.M. 534, abrogatedon other grounds by Statev. Martinez, 2007-NMSC-025, 141 N.M.713

Court found there wassufficient evidence tosustain Defendant’sconviction

Officer sawDefendant behindhim weaving intoanother lane andmedian

Got behindDefendant and hecontinued to weave

Odor of alcohol

Bloodshot, wateryeyes

Slurred speech

When Officerasked if he hadbeen drinking,Defendantrespondedaffirmatively

Mixed results

State v. Dutchover1973-NMCA-052,85 N.M. 72

Substantial evidencethat Defendant DWI

Defendant speedingwithout headlightson

Veering intooncoming trafficand stuck anothervehicle almost head-on

Odor of alcohol

Slurred speech

Open can of beeron floorboard

5 beer in theafternoon, thelast oneconsumed 1 hourbefore theaccident

None done

83

“Motor Vehicle”

NMSA 1978, §66-1-4.11(H). “‘Motor vehicle’ means every vehicle that is self-propelled and every vehiclethat is propelled by electric power obtained from batteries or from overhead trolley wires, but not operatedupon rails...”

State v. Eden, 1989-NMCA-038, 108 NM 737. A snow mobile is not a motor vehicle under the MotorVehicle Code. A windrower (used for farming), mole (used for mining), and dragline (used for mining) arealso not considered motor vehicles. Court concluded that the language in the Motor Vehicle Code showedlegislative intent to regulate devices typically and lawfully used upon a highway to transport persons andproperty.

State v. Richardson, 1992-NMCA-041, 113 N.M. 740. A farm tractor with an attached mower is a “vehicle”under the DWI statute. Richardson, 1992-NMCA-041, 740. “Clearly, a farm tractor is a vehicle that is ormay be used on a highway.” Richardson, 1992-NMCA-041, 741. “It is also apparent to us that farm tractorswere intended to come within the provisions governing safety.” Richardson, 1992-NMCA-041, 742.

State v. Saiz, 2001-NMCA-035, 130 N.M. 333. “We hold that persons using a moped are subject to Section66-8-102.” Saiz, 2001-NMCA-035, ¶1.

State v. Natoni, 2012-NMCA-062. “By its language, Section 66-8-102(A) applies to any person under theinfluence of intoxicating liquor who drives a ‘vehicle within this state.’ Defendant’s ATV in the current casewould qualify as a vehicle for purposes of Section 66-8-102(A).” Natoni, 2012-NMCA-062, ¶14. “...[W]eare satisfied that the Legislature intended the application of the DWI statute to punish the offense of drivingan off-highway motor vehicle while intoxicated.” Natoni, 2012-NMCA-062, ¶15.

FACTS: Defendant crashed into a telephone pole while driving a Polaris ATV on a publicroad. Defendant walked away for the accident, leaving an injured passenger. Officer located Defendant in a nearby house and discovered that Defendant was thedriver of ATV. Defendant took and failed SFSTs and took breath tests showingscores of 0.17 and 0.18. Court noted that legislative public policy interest incombating DWI indicated that the $10 fine set forth in the Off-Highway MotorVehicle Act did not control and that the DWI statute did. Defendant’s sentence of364 days in jail affirmed. (Defendant had two prior DWI convictions, so this wasa DWI 3.)

84

Control

State v. Sims, 2010-NMSC-027, 148 N.M. 330. “It is only when there are no witnesses to the vehicle’smotion that actual physical control is essential to prove DWI at the time an accused is apprehended.” Sims,2010-NMSC-027, ¶26. “...A DWI conviction that is based on actual physical control requires proof that theaccused actually exercised control over the vehicle, as well as proof of a general intent to drive, so as to posea real danger to the safety of the driver or the public. It is no longer sufficient to introduce evidence thatshows that the accused ‘can directly commence operating a vehicle while...intoxicated.’” Sims, 2010-NMSC-027, ¶26. “A totality of the circumstances test must prove what defendants have done and what they intendto do, not merely what they might do.” Sims, 2010-NMSC-027, ¶38.Factors (not an exhaustive list) to determine whether an individual is in actual physical control of a vehicleand has the general intent to drive: “(1) whether the vehicle was running; (2) whether the ignition was on;(3) whether the ignition key was located; (4) where and in what position the driver was found in the vehicle;(5) whether the person was awake or asleep; (6) whether the vehicle’s headlights were on; (7) where thevehicle was stopped; (8) whether the drive had voluntarily pulled off the road; (9) time of day; (10) weatherconditions; (11) whether the heater or air conditioning was on; (12) whether the windows were up or down;(13) any explanation of the circumstances shown by the evidence.” Sims, 2010-NMSC-027, ¶33.

FACTS: Officer found Defendant passed out or asleep behind the wheel in commercialparking lot. Keys on the front passenger seat. Officer smelled strong odor ofalcohol. Defendant had bloodshot, watery eyes and admitted to drinking. Defendant pleaded guilty and appealed the ruling that he was in actual physicalcontrol of the vehicle. Court found that the State did not establish actual physicalcontrol beyond a reasonable doubt, set aside plea, and dismissed the charges.

State v. Mailman, 2010-NMSC-036, 148 N.M. 702. “...Operability of a vehicle is a factor to be consideredby the jury in determining whether a defendant has the general intent to drive so as to endanger any person.” Mailman, 2010-NMSC-036, ¶1. Sims applies prospectively to all cases pending in the trial court and ondirect appeal as of the date that Sims was filed, June 8, 2010. Mailman, 2010-NMSC-036, ¶9. “Actualphysical control is not necessary to prove DWI unless there are no witnesses to the vehicle’s motion andinsufficient circumstantial evidence to infer that the accused actually drove while intoxicated. Such evidencemay include the accused’s own admissions, the location of the vehicle next to the highway, or any othersimilar evidence that tends to prove that the accused drove while intoxicated.” Mailman, 2010-NMSC-036,¶28.

FACTS: Officer stopped to check on a convenience store that had recently been robbed andsaw a Jeep parked off by itself in the dark with its door open. Defendant was indriver’s seat. Officer saw an open can of beer in the center console and thoughtDefendant appeared confused and disoriented. Officer asked Defendant to get out.As Defendant got out, he had difficulty maintaining balance and smelled stronglyof alcohol. Defendant said he had consumed a six-pack of beer and threw the restof the cans out of the window along the highway as he drove to the conveniencestore. Defendant said his vehicle had broken down and that he dropped the keysunder the seat. Officer couldn’t find the keys, but recognized the vehicle as one thatcould start without the key. Defendant refused SFSTs and breath test, saying hewas too drunk to pass the tests. Court held that Defendant wasn’t in actual physicalcontrol of his vehicle in that there was insufficient evidence to demonstrate thatDefendant had taken an overt step toward driving with a general intent to drive soas to endanger himself or the public.

85

State v. Cotton, 2011-NMCA-096, 150 N.M. 583. Court applied Mailman. An odor of alcohol emanatingfrom Defendant’s van, Defendant’s admission that he consumed 24 ounces of beer one hour before heencountered the deputy, Defendant’s poor performance on the FSTs, Defendant’s belligerent and unrulybehavior, and his refusal to undergo breath or blood testing support the conclusion that Defendant wasimpaired during the time of contact with the deputies. “The mere fact that Defendant’s van was observedat a roadside location with Defendant sitting in it in a state of intoxication, without more, does not proveDefendant drove while impaired in violation of Section 66-8-102. Indeed, there was no evidence presentedto prove that the driving and impairment overlapped. Indeed, there was no evidence presented to prove thatthe driving and impairment overlapped. No one testified about seeing Defendant driving while impaired.Although Defendant admitted he consumed alcohol one hour before speaking to Deputy Brown, there wasno evidence regarding when Defendant parked the van. Defendant could have parked and then consumedthe beer. The State, therefore, failed to establish that Defendant drove after he had consumed alcohol andafter alcohol had impaired his ability to drive to the slightest degree. The State's inability to supply thisneeded evidence is determinative. Although the jury could infer that Defendant drove to the location wherehe was arrested, the jury could not infer that Defendant drove while impaired. Based on the evidencepresented, any connection drawn between the drinking and driving had to result from impermissiblespeculation.” Cotton, 2011-NMCA-096, ¶14.

State v. Reger, 2010-NMCA-056. “We conclude that the misdemeanor arrest rule is satisfied where theofficer may reasonably infer from the direct and circumstantial evidence that the driver is intoxicated andhas recently been in actual physical control of the vehicle. Reger, 2010-NMCA-056, ¶1. “‘What constitutesactual physical control has been decided based on the facts of a particular case.’” Reger, 2010-NMCA-056,¶6 (citing from State v. Sims, 2010-NMSC-027, ¶7). “If a person is found to be in actual physical control,he or she is viewed as currently driving for purposes of the DWI law. If a person is found not to be in actualphysical control, he or she is not viewed as currently driving, but the possibility remains that the personrecently drove.” Reger, 2010-NMCA-056, ¶9. Where an intoxicated person is encountered outside a vehicle,“...the officer’s personal perceptions include observation of the circumstances surrounding the presence ofthe defendant and the vehicle, observation and smells evidencing the defendant’s intoxication, and hearingwhat the defendant and others say. What the officer perceives supplies sufficient ‘facts and circumstancesoccurring within [the officer’s] presence in connection with what, under the circumstances, may beconsidered common knowledge, [to] give [the officer] probable cause to believe or reasonable grounds tosuspect that a crime has occurred.’” Reger, 2010-NMCA-056, ¶16 (citing from State v. Ochoa, 2008-NMSC-023, ¶11). “Defendant was, however, in possession of his truck and acknowledged that he had parked it–i.e.,driven it and brought it to a stop–to check if a light was out. He showed signs of being under the influenceof alcohol and admitted drinking. We conclude that these circumstances satisfied the requirement that theoffense be committed in the officer’s presence.” Reger, 2010-NMCA-056, ¶18.

FACTS: Defendant parked his truck on private property. Officer found Defendant standingoutside of his truck, which was parked with the hood open and engine off. Defendant told Officer that he had stopped the truck because someone told him oneof his lights was out. Officer noticed Defendant had slurred speech and an odor ofalcohol on his breath and was unsteady on his feet. SFSTs were administered, andDefendant was arrested for DWI.

86

State v. Orquiz, 2012-NMCA-080. “Our jurisprudence interprets [the definition of “driver” under NMSA1978, §66-1-4.4(K)] as establishing two ways a person may ‘drive’ a vehicle: (1) DWI based on being in‘actual physical control’ of the vehicle while impaired, whether or not the vehicle is moving, and (2) DWIbased on actually driving a moving vehicle while impaired. Here, Defendant’s DWI conviction was basedon his actual driving of a vehicle while impaired. Although no witnesses testified to seeing Defendant’svehicle in motion, the investigating officer relayed Defendant’s on-scene admission that he had been drivingwhen his brakes failed, as well as the officer’s own observations of the single-vehicle crash scene. Suchevidence of past driving, though circumstantial, is nonetheless sufficient for a jury to infer that Defendantactually drove while impaired when considered alongside Defendant’s known BAC.” Orquiz, 2012-NMCA-080, ¶4.

FACTS: Defendant drove through an intersection without stopping at a stop sign and crashedinto a ditch. Officer arrived at accident scene at 6:09 p.m. Defendant told officersthat he wasn’t able to stop because his brakes failed. Defendant smelled of alcoholand admitted to having consumed a 6-pack from noon to 3:00 p.m. He took andfailed SFSTs and had a breath score of 0.16/0.17.

Boone v. State, 1986-NMSC-100, 105 N.M. 223. “...Section 66-8-102 makes it unlawful for any person whois under the influence of intoxicating liquor to drive or be in actual physical control of a motor vehicle or toexercise control over or steer a vehicle being towed by a motor vehicle; motion of the vehicle is not anecessary element of the offense.” Boone, 1986-NMSC-100, 226.

State v. Johnson, 2001-NMSC-001, 130 N.M. 6. “...The DWI statute has no geographical limitation andapplies to both public and private property.” Johnson, 2001-NMSC-001, ¶7. “...Section 66-8-102 appliesto private as well as public property, regardless of whether the intoxicated person is driving or in actualphysical control of a vehicle.” Johnson, 2001-NMSC-001, ¶14. “We find that the clear purpose of the“actual physical control” element of the DWI statute is to deter persons from placing themselves in asituation in which they can directly commence operating a vehicle while they are intoxicated, regardless ofthe location of the vehicle.” Johnson, 2001-NMSC-001, ¶19. “Therefore, we hold that the State may chargea person with DWI pursuant to Section 66-8-102 despite the fact that the defendant is found on privateproperty in actual physical control of a non-moving vehicle.” Johnson, 2001-NMSC-001, ¶24.

State v. Harrison, 1992-NMCA-139, 115 N.M. 73. “In reviewing the language of the DWI statute, we alsobelieve that the legislature drafted Section 66-8-102 in order to make the act of driving while intoxicated acrime, in and of itself, regardless of the intent of the accused. Based on the above, we hold that the offenseof DWI is a strict liability crime.” Harrison, 1992-NMCA-139, 78.

87

Involuntary Intoxication

State v. Gurule, 2011-NMCA-042, 149 N.M. 599. “...DWI, contrary to Section 66-8-102(A), is a strictliability crime and, as a result, an involuntary intoxication defense is not available.” Gurule, 2011-NMCA-042, ¶20. “...Involuntary intoxication is not a defense to a strict liability crime because it is irrelevant in thestrict liability context as to whether the defendant had intent to commit the prescribed act.” Gurule, 2011-NMCA-042, ¶18. “Involuntary intoxication is only a defense in New Mexico when the defendant’s intentto commit the criminal act is negated by the intoxication to the extent that the defendant did not understandthe consequences of the action or did not know the act was wrong and could not have prevented the act.” Gurule, 2011-NMCA-042, ¶17.

88

Duress

State v. Rios, 1999-NMCA-069, 127 N.M. 334. “...The common-law defense of duress is available todefendants charged with the strict liability crime of DWI.” Rios, 1999-NMCA-069, ¶1. “The State [has] theburden to prove ‘all of the elements of DWI beyond a reasonable doubt.’ It [is] then Defendant’s burden toadduce sufficient evidence to place the question of duress before the fact finder.” Rios, 1999-NMCA-069,¶¶21-22. “...New Mexico law establishes four elements to duress in the strict liability context: (1) thedefendant acted under unlawful and imminent threat of death or serious bodily injury, (2) he did not findhimself in a position that compelled him to violate the law due to his own recklessness, (3) he had noreasonable legal alternative, and (4) his illegal conduct was directly caused by the threat of harm.” Rios,1999-NMCA-069, ¶25.

FACTS: After leaving a bar at closing time, Defendant claims he and his brother werethreatened by an angry mob. They sought refuge in Defendant’s truck. As thealleged attack continued, Defendant started the truck and began to slowly drive outof the parking lot. Officers arrived on scene, determined Defendant was at a 0.14,and arrested him for DWI. Court found that Defendant made a prima facie showingof the defense of duress. The trial court expressed strong doubt that Defendantfaced a sufficiently imminent and perilous harm. A witness testified that only heand one other person approached Defendant’s truck and that he simply grabbed ahold of Defendant’s driver side mirror. Arresting officer testified that Defendantwas unharmed and that no one was fighting or threatening Defendant’s vehiclewhen he arrived. Defendant introduced no evidence that he considered anyalternative to driving while legally drunk.

State v. Tom, 2010-NMCA-062, 148 N.M. 348, overruled on other grounds by State v. Tollardo, 2012-NMSC-008. “...No requirement exists that a defendant admit to impairment in order to assert duress as adefense to a DWI charge.” Tom, 2010-NMCA-062, ¶32. Admission to having consumed alcohol and tobeing the driver of the vehicle are enough to assert duress as a defense. Tom, 2010-NMCA-062, ¶32.

State v. Wyatt B., 2015-NMCA-110. “Duress is a valid defense that is available to defendants in DWI cases.Defendants who raise the defense of duress are ‘not attempting to disprove a requisite mental state’ but ‘areinstead attempting to show that they ought to be excused from criminal liability because of the circumstancessurrounding their intentional act.’ The duress defense excuses or justifies a defendant’s conduct nased onthe principle that the defendant committed the crime ‘in order to avoid a harm of greater magnitude’ Whenapplying the duress defense to the strict liability crime of DWI, our courts have adopted a ‘narrowedarticulation’ of the defense ‘so as not to vitiate the protectionary purpose of the strict liability statute.” WyattB., 2015-NMCA-110, ¶34. (Internal citations omitted). “‘The keystone of the analysis is that the defendantmust have no alternative–either before or during the event–to avoid violating the law.’” Wyatt B., 2015-NMCA-110, ¶34. (Internal citations omitted).

FACTS: Child requested a duress instruction and argued that he was forced to drive to thestore under threat of harm from George. George testified that he “forced” Child todrive him to the store to buy more alcohol. He also testified that he raised his voiceand told Child to “hurry” before Child’s parents came home. George admitted thathe “pressured” Child, but also testified that he never made physical contact withChild or threatened Child with physical force or weapon. Court not persuaded thatChild acted under unlawful and imminent threat of death or serious bodily injury.

89

Suspended/Revoked Driver’s License

NMSA 1978, §66-5-39(A). “Any person who drives a motor vehicle on any public highway of this state ata time when the person's privilege to do so is suspended and who knows or should have known that theperson's license was suspended is guilty of a misdemeanor and shall be charged with a violation of thissection. Upon conviction, the person shall be punished, notwithstanding the provisions of Section 31-18-13NMSA 1978, by imprisonment for not less than four days or more than three hundred sixty-four days orparticipation for an equivalent period of time in a certified alternative sentencing program, and there maybe imposed in addition a fine of not more than one thousand dollars ($1,000). When a person pays any or allof the cost of participating in a certified alternative sentencing program, the court may apply that paymentas a deduction to any fine imposed by the court. Any municipal ordinance prohibiting driving with asuspended license shall provide penalties no less stringent than provided in this section.”

NMSA 1978, §66-5-39.1(A). “A person who drives a motor vehicle on a public highway of this state at atime when the person's privilege to do so is revoked and who knows or should have known that the person'slicense was revoked is guilty of a misdemeanor and shall be charged with a violation of this section. Uponconviction, the person shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978 by imprisonment for not less than four days or more than three hundred sixty-four days or by participationfor an equivalent period of time in a certified alternative sentencing program, and there may be imposed inaddition a fine of not more than one thousand dollars ($1,000). When a person pays any or all of the cost ofparticipating in a certified alternative sentencing program, the court may apply that payment as a deductionto any fine imposed by the court.”

NMSA 1978, §66-5-39.1(B). “Notwithstanding any other provision of law for suspension or deferment ofexecution of a sentence, if the person's privilege to drive was revoked for driving under the influence ofintoxicating liquor or drugs or a violation of the Implied Consent Act, upon conviction pursuant to thissection, the person shall be punished by imprisonment for not less than seven consecutive days and shall befined not less than three hundred dollars ($300) and not more than one thousand dollars ($1,000) and the fineand imprisonment shall not be suspended, deferred or taken under advisement. No other disposition by pleaof guilty to any other charge in satisfaction of a charge under this section shall be authorized if the person'sprivilege to drive was revoked for driving under the influence of intoxicating liquor or drugs or a violationof the Implied Consent Act. Any municipal ordinance prohibiting driving with a revoked license shallprovide penalties no less stringent than provided in this section.”

NMSA 1978, §66-8-111(B). “The department, upon receipt of a statement signed under penalty of perjuryfrom a law enforcement officer stating the officer’s reasonable grounds to believe the arrested person hadbeen driving a motor vehicle within this state while under the influence of intoxicating liquor or drugs andthat, upon request, the person refused to submit to a chemical test after being advised that failure to submitcould result in revocation of the person’s privilege to drive, shall revoke the person’s New Mexico driver’slicense or any nonresident operating privilege for a period of one year or until all conditions for licensereinstatement are met, whichever is later.”

90

NMSA 1978, §66-8-111(C). “The department, upon receipt of a statement signed under penalty of perjuryfrom a law enforcement officer stating the officer’s reasonable grounds to believe the arrested person hadbeen driving a motor vehicle within this state while under the influence of intoxicating liquor and that theperson submitted to chemical testing pursuant to Section 66-8-107 NMSA and the test results indicated analcohol concentration in the person’s blood or breath of eight one hundredths or more if the person is twenty-one years of age or older, four one hundredths or more if the person is driving a commercial motor vehicleor two one hundredths or more if the person is less than twenty-one years of age, shall revoke the person’slicense or permit to drive or his nonresident operating privilege for a period of:(1) six months or until all conditions for license reinstatement are met, whichever is later, if the person istwenty-one years of age or older;(2) one year or until all conditions for license reinstatement are met, whichever is later, if the person wasless than twenty-one years of age at the time of the arrest, notwithstanding any provision of the Children’sCode; or(3) one year or until all conditions for license reinstatement are met, whichever is later, if the person haspreviously had his license revoked pursuant to the provisions of this section, notwithstanding the provisionsof Paragraph (1) of this subsection.”

NMSA 1798, §66-8-112(A). “The effective date of revocation pursuant to Section 66-8-111 NMSA 1978is twenty days after notice of revocation or, if the person whose driver’s license or privilege to drive is beingrevoked or denied requests a hearing pursuant to the Administrative Hearings Office Act, the date that theadministrative hearings office issues the order following the hearing. The date of notice of revocation is:(1) the date the law enforcement officer serves written notice of revocation and of right to a hearing pursuantto Section 66-8-111.1 NMSA 1978; or(2) in the event the results of a chemical test cannot be obtained immediately, the date notice of revocationis served by mail by the department. This notice of revocation and of right to a hearing shall be sent bycertified mail and shall be deemed to have been served on the date borne by the return receipt showingdelivery, refusal of the addressee to accept delivery or attempted delivery of the notice at the addressobtained by the arresting law enforcement officer or on file with the department.”

NMSA 1978, §66-8-112(B). “Within ten days after receipt of notice of revocation pursuant to SubsectionA of this section, a person whose license or privilege to drive is revoked or denied or the person’s agent mayrequest a hearing. The hearing request shall be made in writing and shall be accompanied by a payment oftwenty-five dollars ($25.00) or a sworn statement of indigency on a form provided by the department. Astandard for indigency shall be established pursuant to rules adopted by the department. Failure to requesta hearing within ten days shall result in forfeiture of the person’s right to a hearing. Any person less thaneighteen years of age who fails to request a hearing within ten days shall have notice of revocation sent tothe person’s parent, guardian or custodian by the department. A date for the hearing shall be set by theadministrative hearings office, if practical, within thirty days after receipt of notice of revocation. Thehearing shall be held in the county in which the offense for which the person was arrested took place.”

NMSA 1978, §66-8-112(C). The administrative hearings office may postpone or continue any hearing onits own motion or upon application from the person and for good cause shown for a period not to exceedninety days from the date of notice of revocation and, provided that, upon a continuance, the department shallextend the validity of the temporary license for the period of the postponement or continuation.

91

NMSA 1978, §66-8-112(E). “The hearing shall be limited to the following issues:(1) whether the law enforcement officer had reasonable grounds to believe that the person had been drivinga motor vehicle within this state while under the influence of intoxicating liquor or drugs;(2) whether the person was arrested;(3) whether this hearing is held no later than ninety days after notice of revocation; and either(4) whether:

(a) the person refused to submit to a test upon request of the law enforcement officer; and(b) the law enforcement officer advised that the failure to submit to a test could result in revocation of the person’s privilege to drive; or

(5) whether:(a) the chemical test was administered pursuant to the provisions of the Implied Consent Act; and(b) the test results indicated an alcohol concentration in the person’s blood or breath of eight one hundredths or more if the person is twenty-one years of age or older, four one hundredths or more if the person is driving a commercial motor vehicle or two one hundredths or more if the person is less than twenty-one years of age.”

NMSA 1978, §66-8-112(F). The administrative hearings office shall enter an order sustaining the revocationor denial of the person’s license or privilege to drive if the hearing officer from the administrative hearingsoffice finds that:1) the law enforcement officer had reasonable grounds to believe that the driver was driving a motor vehiclewhile under the influence of intoxicating liquor or drugs;(2) the person was arrested;(3) this hearing was held no later than ninety days after notice of revocation; and(4) either:

(a) the person refused to submit to the test upon request of the law enforcement officer after the law enforcement officer advised the person that the person’s failure to submit to the test could result

in revocation of the person’s privilege to drive; or(b) that a chemical test was administered pursuant to the provisions of the Implied Consent Act and the test results indicated an alcohol concentration in the person’s blood or breath of eight one hundredths or more if the person is twenty-one years of age or older, four one hundredths or more if the person is driving a commercial motor vehicle or two one hundredths or more if the person is less than twenty-one years of age.”

NMSA 1978, §66-8-112(G). If one or more of the elements set forth in Paragraphs (1) through (4) ofSubsection F of this section are not found by the hearing officer, the person’s license shall not be revoked.

NMSA 1978, §66-8-112(H). A person adversely affected by an order of the administrative hearings officemay seek review within thirty days in the district court in the county in which the offense for which theperson was arrested took place. The district court, upon thirty days’ written notice to the department, shallhear the case. On review, it is for the court to determine only whether reasonable grounds exist forrevocation or denial of the person’s license or privilege to drive based on the record of the administrativeproceeding.

Rule 11-902(4) NMRA. Certified Copies of Public Records. “A copy of an official record–or a copy of adocument that was recorded or filed in a public office as authorized by law–if the copy is certified as correctby (a) the custodian or another person authorized to make the certification, or(b) a certificate that complies with Rule 11-902(1) [domestic public documents that are sealed and signed],(2) [domestic public documents that are not sealed but are signed and certified], or (3) [foreign publicdocuments], a statute, or a rule prescribed by the Supreme Court.”

92

NMSA 1978, §66-2-11. “Whenever the department or the administrative hearings office is authorized orrequired to give any notice under the Motor Vehicle Code [66-1-1 NMSA 1978] or an other law regulatingthe operation of vehicles, unless a different method of giving notice is otherwise expressly prescribed, noticeshall be given either by personal delivery to the person to be notified or by deposit in the United States mailof the notice in an envelope with postage prepaid, addressed to the person at the person’s address as shownby the records of the department. The giving of notice by mail is complete upon the expiration of seven daysafter deposit of the notice. Proof of the giving of notice in either manner may be made by the certificate ofany officer or employee of the department or affidavit of any person over eighteen years of age, naming theperson to whom the notice was given and specifying the time, place and manner of the giving of the notice. Notice is given when a person refuses to accept notice.”

State v. Soto, 2007-NMCA-077, 142 N.M. 32. “In our case, surrounding factors supported the court’sdetermination that the printout was reliable for the limited purpose. Defendant admitted that his driver’slicense was revoked at the time of his arrest, and Officer Longobardi testified that the computer check he ranat the time of arrest indicated that Defendant’s license was revoked. Thus, we conclude that the trial courtdid not abuse its discretion by admitting the computer printout for the limited purpose of establishing the startdate of Defendant’s license suspension.” Soto, 2007-NMCA-077, ¶29. “In our case, Defendant’s admissionthat his driver’s license was revoked provided evidence, apart from the challenged record, sufficient to provethis element of the crime charged.” Soto, 2007-NMCA-077, ¶30.

FACTS: Officer testified that he asked Defendant for his driver’s license, and Defendantadmitted that the license was revoked. Officer ran a check on Defendant’s license,which indicated that the license was revoked. State admitted MVD packet intoevidence, which showed Defendant’s license was revoked at the time of arrest. Court allowed admission for the limited purpose of establishing the start date ofDefendant’s suspension.

State v. Castro, 2002-NMCA-093, 132 N.M. 646. The jury was not instructed on the essential element thatthe State must prove that Defendant “knew or should have known” that her license was revoked at the timeshe was arrested. State brought forth the MVD record showing that Defendant’s license was revoked fromSeptember 14, 1995 to September 13, 2005 and testimony of two deputies to whom Defendant admitted thatshe did not have a driver’s license. The State did not prove that MVD gave Defendant notice of revocationor even that it was routine practice of MVD to send notice. Court reversed because the failure to properlyinstruct the jury on an essential element was fundamental error.

State v. Gutierrez, 1966-NMSC-119, 76 N.M. 429. There was undisputed evidence that Defendant’s licensewas revoked for one year following a guilty plea to DWI on September 9, 1963. Defendant was arrested fordriving on a revoked license on May 14, 1964. Two officers testified that they saw Defendant driving amotor vehicle immediately before the arrest. One officer knew that Defendant was on revocation andstopped to check Defendant’s driving privileges. Court held that there was sufficient evidence to justify thearrest without a warrant, the arrest wasn’t unlawful, and the evidence was obtained prior to arrest. Theofficers observed Defendant driving on a public street. One officer had knowledge of Defendant’s revokedstatus. The investigation after stopping was merely to confirm the officer’s prior knowledge.

93

State v. Herrera, 1991-NMCA-005, 111 N.M. 560. “Except under certain emergency situations, notice andopportunity for a hearing are required by the due process clause of the fourteenth amendment beforetermination of an individual’s driving privileges may be revoked.” Herrera, 1991-NMCA-005, 562. “Because there is no indication that the legislature intended to impose strict liability under Section 66-5-39(A), we hold that proof of knowledge by the licensee that his driving privileges have been suspended orrevoked is a prerequisite for conviction under the statute.” Herrera, 1991-NMCA-005, 563. “In criminalproceedings where a defendant is charged with driving under a revoked license, the prosecution is not,however, required to produce direct evidence of the defendant’s subjective mental state. Because thesubjective nature of intent makes proof through direct evidence difficult, intent may be proved bycircumstantial evidence. Nor is the state required to prove defendant’s knowledge that his license wasrevoked by means of a signed return receipt for the Division’s formal notice of revocation...It is knowledgeof the fact of revocation, not necessarily receipt of the department’s notice of revocation, that constitutes therequisite culpable mental state for driving while [the] license [is] revoked. What is required, therefore, isdirect or circumstantial evidence which, when viewed as a whole and in a light most favorable to theprosecution, is sufficient to permit a reasonable factfinder to conclude beyond a reasonable doubt that thedefendant had knowledge of the fact of revocation at the time of the driving offense in question.” Herrera,1991-NMCA-005, 747-748. (Internal citations omitted). “The prosecution may establish defendant’sknowledge when it shows that the defendant had actual knowledge of revocation from whatever source. Herrera, 1991-NMCA-005, 565. “Because Section 66-2-11 directs that notice of revocation be sent to thelicensee, evidence of the fact that the statute was followed is, however, relevant to the trier-of-fact’sdetermination of whether the defendant had knowledge of the fact of revocation. The statute, if followed,permits the fact finder to infer that notice was given. The strength of the inference is for the trier-of-fact todetermine, based upon the evidence in each particular case.” Herrera, 1991-NMCA-005, 565.

FACTS: Certified copies of MVD records showed two notices of revocation were sent bycertified mail to Defendant’s address after he received convictions for DWI, whichwere unreturned. The address used was listed as Defendant’s home address on atraffic citation issued personally to Defendant. There was also evidence thatDefendant was arrested for DWI on September 1987 and refused to give a bloodalcohol test. A reasonable inference could be drawn that the officer complied withthe ICA and advised Defendant that failure to submit to a chemical test will resultin license revocation. Court found that the record was sufficient to support afinding beyond a reasonable doubt that at the time of his arrest on June 17, 1988,Defendant was aware that he was driving with a revoked license.

Schuster v. State Dep’t. of Taxation & Revenue, 2012-NMSC-025. “The predominant issue in this case iswhether MVD must find that the arrest of a driver charged with driving while intoxicated (DWI) wasconstitutional as one of the prerequisites to revoking the driver’s license...We hold that the arrest requiredfor a license revocation must be constitutional, which also requires that the police activity leading to thearrest must also be constitutional.” Schuster, 2012-NMSC-025, ¶1. “We conclude, consistent with theseother jurisdictions, that the plain meaning of the word ‘arrest’ means an arrest that complies with theprotections of the Fourth Amendment to the United States Constitution, and Article II, Section 10 of the NewMexico Constitution. Therefore, an arrest and the underlying police activity leading to the arrest, must beconstitutional before a driver’s license can be revoked under the Implied Consent Act.” Schuster, 2012-NMSC-025, ¶18. “To summarize, the requirement in Section 66-8-112(E)(2)–(F)(2) that MVD find that ‘theperson was arrested’ requires a finding that the arrest and police activity leading to the arrest wereconstitutional.” Schuster, 2012-NMSC-025, ¶19.

City of Santa Fe ex rel. Santa Fe Police Dep’t v. Olivas et al., 2012-NMCA-027. “We hold that a driver’slicense that has been revoked as a result of a DWI conviction remains revoked until all the requirements ofreinstatement have been met.” Olivas, 2012-NMCA-027, ¶16.

94

State v. Hicks, 2013-NMCA-056. “This case presents the question of whether an officer’s knowledge thatthe registered owner of a vehicle has a revoked license provides reasonable suspicion to stop the vehiclewhen the officer makes no effort to determine, prior to the stop, whether the driver of the vehicle is theregistered owner...In State v. Candelaria, which was decided after the district court’s decision in this case,we held that a stop effected on the basis of similar information did not violate the United States Constitutionbecause it was supported by reasonable suspicion. We now hold that the same result is warranted under theNew Mexico Constitution.” Hicks, 2013-NMCA-056, ¶1. (Internal citations omitted). “In this case, theofficer stopped Defendant’s vehicle after learning that the license of the registered owner of the vehicle hadbeen revoked. The officer did not have a subjective hunch that Defendant was breaking the law; rather, hehad a particularized suspicion that Defendant was breaking the law by driving with a revoked license. Theofficer could have been incorrect; he could have discovered that Defendant was not the registered owner andwas not otherwise breaking the law. But, as we noted in Candelaria, and we believe equally applicable undera state constitutional analysis, ‘[t]he concept of reasonable suspicion has always embraced a certain degreeof uncertainty.’” Hicks, 2013-NMCA-056, ¶16. “In this case, we believe that it would potentially jeopardizelegitimate law enforcement interests to require police officers to determine, prior to effecting a traffic stop,whether the driver of a vehicle matches the basic description of the registered owner.” Hicks, 2013-NMCA-056, ¶17. “We agree with the State that the best and least intrusive way for the officer to confirm or dispelhis suspicion that the driver of the vehicle he observed had a revoked license was through an investigatorytraffic stop.” Hicks, 2013-NMCA-056, ¶18. “We conclude that, in this circumstance, the result under theNew Mexico Constitution is the same as under the United States Constitution. Like the officers inCandelaria, the officers here ‘possessed reasonable suspicion to believe that [Defendant’s] vehicle, as wellas its occupant...were subject to seizure.’ Accordingly, the stop of Defendant’s vehicle did not violate theNew Mexico Constitution.” Hicks, 2013-NMCA-056, ¶19. (Internal citations omitted).

NMSA 1978, §66-5-29(A). The division shall immediately revoke the driving privilege or driver's licenseof a driver upon receiving a record of the driver's adjudication as a delinquent for or conviction of any of thefollowing offenses, whether the offense is under any state law or local ordinance, when the conviction oradjudication has become final:(1) manslaughter or negligent homicide resulting from the operation of a motor vehicle;(2) any offense rendering a person a “first offender” [a person who for the first time under state or federallaw or a municipal ordinance or a tribal law has been adjudicated guilty of the charge of driving a motorvehicle while under the influence of intoxicating liquor or any other drug that renders the person incapableof safely driving a motor vehicle, regardless of whether the person’s sentence was suspended or deferred]as defined in the Motor Vehicle Code;(3) any offense rendering a person a “subsequent offender” [a person who was previously a first offenderand who again, under state law, federal law or a municipal ordinance or a tribal law, has been adjudicatedguilty of the charge of driving a motor vehicle while under the influence of intoxicating liquor or any drugthat rendered the person incapable of safely driving a motor vehicle, regardless of whether the person’ssentence was suspended or deferred] as defined in the Motor Vehicle Code;(4) any felony in the commission of which a motor vehicle is used;(5) failure to stop and render aid as required under the laws of this state in the event of a motor vehicleaccident resulting in the death or personal injury of another;(6) perjury or the making of a false affidavit or statement under oath to the division under the Motor VehicleCode or under any other law relating to the ownership or operation of motor vehicles; or(7) conviction or forfeiture of bail not vacated upon three charges of reckless driving committed within aperiod of twelve months.

95

NMSA 1978, §66-5-29(C). A person who upon adjudication as a delinquent for driving while under theinfluence of intoxicating liquor or drugs or a conviction pursuant to Section 66-8-102 NMSA 1978 is subjectto revocation of the driving privilege or driver's license under this section for an offense pursuant to whichthe person was also subject to revocation of the driving privilege or driver's license pursuant to Section 66-8-111 NMSA shall have the person's driving privilege or driver's license revoked for that offense for acombined period of time equal to:(1) one year for a first offender; or(2) for a subsequent offender:

(a) two years for a second conviction;(b) three years for a third conviction; or(c) the remainder of the offender’s life for a fourth or subsequent conviction, subject to a five-year review, as provided in Sections 66-5-5 and 66-8-102 NMSA 1978.

A98Formerly BA3

66-8-111(C)(1) Revocation based on a BAC in excess of statutory limit - first offense(over the age of 18)

A61Formerly BA5

66-8-111(C)(3) Revocation based on a BAC in excess of statutory limit - subsequentoffense, lab tested (over the age of 18)

A98Formerly BA6

66-8-111(C)(1) Revocation based on a BAC in excess of statutory limit - lab tested(over the age of 18)

A91Formerly BA7

66-8-111(C)(3) Revocation based on a BAC in excess of statutory limit - subsequentoffense (over the age of 18)

A91Formerly BA8

66-8-111(C)(3) Revocation based on a BAC in excess of statutory limit - subsequentoffense, lab tested (over the age of 18)

A21Formerly DI1

66-5-29 Revocation based on any conviction for DWI

A12Formerly DI3

66-8-111 Revocation based on refusal to submit to tests for alcohol after arrest forDWI or suspicion of intoxication

96

Lost/Uncollected Evidence

State v. Chouinard, 1981-NMSC-096, 96 N.M. 658. Three-part test to determine whether deprivation ofevidence is reversible error: “1)The State either breached some duty or intentionally deprived the defendantof evidence; 2) The improperly ‘suppressed’ evidence must have been material; and 3) The suppression ofthis evidence prejudiced the defendant.” Chouinard, 1981-NMSC-096, 661. “We do not construe the testto exclude the results of every test based on evidence which is no longer available.” Chouinard, 1981-NMSC-096, 661. “Also, where material is destroyed before its significance as evidence is realized, thedefendant’s inability to inspect or test does not deny him due process.” Chouinard, 1981-NMSC-096, 662. “Where the loss of evidence is not known during the trial...and the evidence is material and its absenceprejudicial to the defendant, the only remedy is a new trial incorporating the lost evidence one it is found. Where the loss is known prior to trial, there are two alternatives: Exclusion of all evidence which the lostevidence might have impeached, or admission with full disclosure of the loss and its relevance and import. The choice between these alternatives must be made by the trial court, depending on its assessment ofmateriality and prejudice.” Chouinard, 1981-NMSC-096, 662. “Determination of materiality and prejudicemust be made on a case-by-case basis. The importance of the lost evidence may be affected by the weightof other evidence presented, by the opportunity to cross-examine, by the defendant’s use of the loss inpresenting the defense, and other considerations. The trial court is in the best position to evaluate thesefactors.” Chouinard, 1981-NMSC-096, 663.

State v. Ware, 1994-NMSC-091, 118 N.M. 319. “We hold that the three-part test in Lovato and Chouinarddoes not apply to determine the admissibility of evidence in cases where the State fails to gather physicalevidence during the investigation of a crime scene. As the State points out, our courts have only appliedLovato and Chouinard in cases where evidence collected was lost, destroyed, or inadequately preserved. Case law from New Mexico and other jurisdictions demonstrates that a clear distinction exists betweensuppression of evidence, failure to preserve evidence, and failure to gather evidence in the first instanceduring a criminal investigation.” Ware, 1994-NMSC-091, 321-322. “While we recognize the rule that policeofficers generally have no duty to collect all potential evidence from a crime scene, we conclude that this ruleis not absolute. We do not condone shoddy and inadequate police investigation procedures at the expenseof a criminal defendant’s right to a fair trial. In some cases, the State’s failure to gather evidence mayamount to suppression of material evidence.” Ware, 1994-NMSC-091, 324. “...[W]e adopt a two-part testfor deciding whether to sanction the State when police fail to gather evidence from the crime scene. First,as a threshold matter the evidence that the Sate failed to gather from the crime scene must be material to thedefendant’s defense. Sanctions are not appropriate for failure to gather evidence immaterial to thedefendant’s defense. The determination of evidence materiality is a question of law for the court. Evidenceis material only ‘‘if there is a reasonable probability that , had the evidence been [available] to the defense,the result of the proceedings would have been different.’’ A ‘reasonable probability’ is ‘‘a probabilitysufficient to undermine confidence in the outcome.’’ If the evidence is material to the defendant’s defense,then the conduct of the investigating officers is considered. If the trial court determines that the failure tocollect the evidence was done in bad faith, in an attempt to prejudice the defendant’s case, then the trial courtmay order the evidence suppressed. If it is determined that the officers were grossly negligent in failing togather the evidence-for example, by acting directly contrary to standard police investigatory procedure-thenthe trial court may instruct the jury that it can infer that the material evidence not gathered from the crimescene would be unfavorable to the State. When the failure to gather evidence is merely negligent, anoversight, or done in good faith, sanctions are inappropriate, but the defendant can still examine theprosecution’s witnesses about the deficiencies of the investigation and argue the investigation’s shortcomingsagainst the standard of reasonable doubt.” Ware, 1994-NMSC-091, 325-326. (Internal citations omitted).

97

State v. Lopez-Esquivel, 2009 WL 6608179 (N.M. Ct. App. 2009) (non-precedential). “We apply a three-parttest to determine whether deprivation of evidence is reversible error. The State must have breached someduty or intentionally deprived the defendant of evidence, the improperly ‘suppressed’ evidence must havebeen material, and the suppression of the evidence must prejudice the defendant. Evidence is material ifthere is a reasonable probability that if it had been considered the result of the trial would have beendifferent. ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome. When a lost of destroyed evidence claim is presented, the district court has two options. It may exclude allevidence that might have been impeached by the lost evidence, or it may admit all evidence that the lostevidence might have impeached, with full disclosure of the loss and its import. The choice between thesealternatives must be made on a case-by-case basis. ‘The importance of the lost evidence may be affected bythe weight of other evidence presented, by the opportunity to cross-examine, by the defendant’s use of theloss in presenting the defense, and other considerations. The trial court is in the best position to evaluatethese factors.’” Lopez-Esquivel, No. 29,558, mem. op. at 1. (Internal citations omitted). “...[T]he otheroption available to Defendant would be an instruction informing the jury that the video tape was no longeravailable, and allowing the jury to consider that fact...We further suggested that such an instruction wouldhave been sufficient to ensure Defendant’s right to a fair trial.” Lopez-Esquivel, No. 29,558, mem. op. at 2. (Internal citations omitted). “We follow Duarte and hold that suppression of all evidence that the videomight have impeached was not required. The evidence suggests that there is ample evidence of guilt. Weare provided with no information that Defendant was precluded from having an instruction on this issue orfrom cross-examining about the officer’s failure. On the facts, we see no realistic basis beyond ‘extrapolatedspeculation’ that the video tape would have undercut the prosecution’s case. Nor are we inclined to concludethat there is a reasonable probability that, if the video would have been available, the result of the trial wouldhave been different. Consequently, we hold that defendant has not demonstrated materiality or prejudice andthat the court did not abuse its discretion in refusing to suppress all of the evidence which the video mighthave impeached.” Lopez-Esquivel, No. 29,558, mem. op. at 2. (Internal citations omitted). UNPUBLISHEDOPINION–MAKE SURE TO NOTE THIS WHEN CITING!

FACTS: A dash cam video was not preserved when video equipment changed. Complaintindicated that Defendant didn’t stop at a stop sign. When officer turned on hisemergency equipment, Defendant tried to get away by pulling into a privatedriveway and then attempted to switch seats with passenger. Defendant admittedto drinking a few and had slurred speech and strong odor of alcohol. He performedthe finger-to-nose test poorly and refused to properly give a breath sample.

State v. Jackson, 2004-NMCA-057, 135 N.M. 689. “Sanctions for noncompliance with discovery orders arediscretionary with the trial court. A showing of noncompliance is insufficient to entitle a defendant todismissal or other sanctions-the prejudice resulting from the violation must also be established.” Jackson,2004-NMCA-057, ¶10. “The State is ordinarily not charged with disclosure of material in the possessionof government agencies that are not investigative arms of the prosecution and have not participated in theinvestigation of the case.” Jackson, 2004-NMCA-057, ¶13. “...[D]ismissal is an extreme sanction to be usedonly in exceptional cases.” Jackson, 2004-NMCA-057, ¶15. “‘When the issue is one of delayed disclosurerather than of nondisclosure,...the test is whether defendant’s counsel was prevented by the delay from usingthe disclosed material effectively in preparing...the defendant’s case.’” Jackson, 2004-NMCA-057, ¶19. “We recognize that the delay in discovery may have resulted in difficulty for Defendant, but theseconsequences do not justify dismissal.” Jackson, 2004-NMCA-057, ¶19.

State v. Hill, 2005-NMCA-143. “Dismissal is not a proper remedy without a showing that the defendant ‘willbe deprived of a fair trial if...tried without the missing evidence.”” Hill, 2005-NMCA-143, ¶.

98

State v. Duarte, 2007-NMCA-012, 140 N.M. 930. Officer’s audio equipment didn’t work during the SFSTs. Second set administered using video. Video of second set lost. Officer testified about first set of SFSTs,but not about the second. Court said that Defendant did not show that had the video been available it wouldhave undercut the prosecution’s case or that the video’s absence materially affected a determination of guiltor innocence. Court also noted that Officer didn’t testify about the second set of SFSTs and Defendant hadbeen given carte blanche to cross-examine Officer about lost video and argue the significance to the jury. Defendant also had Officer’s report which contained info specifically related to the SFSTs. Defendant alsoargued that State’s late disclosure of witnesses didn’t allow adequate preparation of a defense. In initialwitness list, State disclosed specific witnesses as well as “any and all witnesses named in the police reports.” Five days before trial, State filed amended witness list naming two officers who supervised the roadblock. Court said that Defendant hadn’t demonstrated that the information was material by indicating that there isa reasonable probability that the outcome of the trial would have been different had the disclosures beenmade earlier. Court also indicated that Defendant hadn’t demonstrated that he was prejudiced by the latedisclosure or that the district court failed to cure any prejudice resulting from the late disclosure. Defendanthad opportunity to interview the witnesses, and two of the witnesses didn’t testify at trial. Duarte, 2007-NMCA-012, ¶18.

State v. Vargas, 1994-NMCA-041, 117 N.M. 534. “The State did not destroy any evidence, lose anyevidence, or fail to disclose or produce evidence under its control. The evidence here (the victim’sautomobile) was preserved by private parties and was available to Defendant through legal process. The onlyproblem was that Defendant delayed in obtaining legal process necessary to compel production of theautomobile by its owners. Any prejudice to Defendant was the result of this delay.” Vargas, 1994-NMCA-041, 538.

State v. Redd, 2013-NMCA-089. “...[A]s a general rule, a district court may impose sanctions against thestate for a failure to comply with a discovery order. Our Supreme Court has clarified that dismissal for theviolation of a discovery order requires (1) culpable state conduct such as ‘bad faith, willful non-compliance,or flat-out disregard for a discovery order;’ (2) tangible prejudice to the defendant as a result of thedeprivation of the evidence; and (3) a consideration of lesser sanctions.” Redd, 2013-NMCA-089, ¶20. (Internal citations omitted). “When evaluating prejudice [under the third prong of the Chouinard test], weexamine ‘the importance of the missing evidence to [the] defendant[] and the strength of the other evidenceof [the] defendant’s guilt.’” Redd, 2013-NMCA-089, ¶31. “In this case, the district court abused itsdiscretion in dismissing the charges against Defendant due to the lost audio recording of the initial interviewbecause the loss of the recording of the initial interview was not prejudicial to Defendant. First, the recordreveals that Defendant had other means to point out the inconsistencies between the initial interview and herlater statements and interviews.” Redd, 2013-NMCA-089, ¶34. “Second, the district court should haveconsidered other alternatives to dismissal that would have ameliorated any prejudice suffered by Defendant.” Redd, 2013-NMCA-089, ¶34. “Third, as we stated in Duarte, reversal is not mandated unless the lostevidence materially affected the determination of guilt or innocence. Given that Defendant only sought touse the initial interview as impeachment evidence and because Defendant had other means to introduce thecontents of the initial interview into evidence, the ultimate remedy of dismissal was not appropriate.” Redd,2013-NMCA-089, ¶34. (Internal citations omitted).

FACTS: Officer conducted an interview with Victim at the time he responded to a call andrecorded it on a digital recorder. He later transferred the file to his computer. Officer’s hard drive was corrupted, and he was only able to retrieve two minutes ofthe ten-minute interview. Trial court dismissed the charges because the State lostthe recording with Victim. Court held that the trial court erred in dismissing thecharges because the loss of the recording was not prejudicial to Defendant.

99

Corpus Delicti

State v. Paris, 1966-NMSC-039, 76 N.M. 291. “It is well settled that the corpus delicti of a crime may beproved by circumstantial evidence. On the question of whether evidence is substantial to establish the corpusdelicti, each case must, of course turn on its own facts.” Paris, 1966-NMSC-039, 293-294. “It is clear that,unless the corpus delicti of the offense charged has been otherwise established, a conviction cannot besustained solely on extrajudicial confessions or admissions of the accused.” Paris, 1966-NMSC-039, 294. “...Corroborative evidence need not be sufficient, independent of the statements, to establish the corpusdelicti, but that the Government must introduce substantial independent evidence which would tend toestablish the trustworthiness of the statement.” Paris, 1966-NMSC-039, 295. “Of course, the confessionor admitted facts, taken together with all the other evidence, must be sufficient to find guilt, and must proveall elements of the corpus delicti beyond a reasonable doubt.” Paris, 1966-NMSC-039, 295-296.

State v. Weisser, 2007-NMCA-015, 141 N.M. 93. “The term ‘corpus delicti,’ which literally means ‘bodyof the crime,’ refers to the evidence needed to establish that the charged crime was actually committed.” Weisser, 2007-NMCA-015, ¶10. “...Where there is no independent evidence of the corpus delicti, adefendant’s extrajudicial statement cannot be used to establish the corpus delicti. This is consistent with therule in Paris, which still requires some independent evidence of a loss or injury before a defendant’sstatement can be used to help establish the corpus delicti.” Weisser, 2007-NMCA-015, ¶24. “...The evidenceused to establish the trustworthiness of Defendant’s statements must actually concern the content of hisstatements, not merely the circumstances surrounding them.” Weisser, 2007-NMCA-015, ¶30.

State v. Wilson, 2011-NMSC-001, 149 N.M. 273, overruled on other grounds by State v. Tollardo, 2012-NMSC-008. “...‘The corpus delicti of an offense is established by proof that the crime was committed, andthe identity of the perpetrator is not material.” Wilson, 2011-NMSC-001, ¶16.

State v. Owelicio, 2011-NMCA-091, 150 N.M. 528. When there is “independent evidence that the crime ofDWI was committed by someone, the Defendant’s admission to driving is unnecessary for purposes ofestablishing the corpus delicti of DWI because the ‘identity of the perpetrator is not material’ to thatdetermination.” Owelicio, 2011-NMCA-091, ¶18. The crime of DWI can be established without identifyingthe driver. “Therefore, the modified trustworthiness doctrine [set forth in Paris] is not applicable becausethe corpus delicti of the crime of DWI was established by independent evidence showing that someone drovewhile intoxicated.” Owelicio, 2011-NMCA-091, ¶25. “In determining the trustworthiness of Defendant’sextrajudicial statement, [the court does look] at the circumstances surrounding the statement, but instead atthe actual content of the statement and evidence that corroborates the information contained in thestatement.” Owelicio, 2011-NMCA-091, ¶27.

FACTS: Officer found car with two flat tires and a man outside changing one of the tires. Defendant seen getting into passenger side of car. No one in the driver’s seat. Defendant had bloodshot, watery eyes and emitted a strong odor of alcohol. Defendant slowly exited the car, swayed, and was unsure of her balance. Defendantrepeatedly stated that she was the driver. Defendant took SFSTs, performed poorly,and was arrested. Court held that there was sufficient corroborating evidence toestablish the trustworthiness of her statement that she was driving and independentproof to confirm that she committed Agg DWI.

100

Proof of Priors

Rule 7-303(A) NMRA. (Metropolitan Court). “A complaint or citation shall not be deemed invalid, norshall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected, becauseof any defect, error, omission, imperfection or repugnancy therein which does not prejudice the substantialrights of the defendant upon the merits. The court may at any time prior to a verdict cause the complaint orcitation to be amended with respect to any such defect, error, omission, imperfection or repugnancy if noadditional or different offense is charged and if substantial rights of the defendant are not prejudiced.”

Rule 7-303(E) NMRA. “If a complaint or citation is amended, the court shall grant such continuances asjustice requires.”

Rule 5-204 (A) NMRA. (District Court). “A complaint, indictment or information shall not be deemedinvalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manneraffected, because of any defect, error, omission, imperfection or repugnancy therein which does not prejudicethe substantial rights of the defendant upon the merits. The court may at any time prior to a verdict causethe complaint, indictment, or information to be amended with respect to any such defect, error, omission orrepugnancy if no additional or different offense is charged and if substantial rights of the defendant are notprejudiced.”

NMSA 1978, §66-8-102 has no time limit for useable priors.

State v. Hernandez, 2001-NMCA-057, 130 N.M. 698. The offense/conviction chronological sequence forimposition of habitual offender penalties does not apply to DWI sentencing. Hernandez, 2001-NMCA-057,¶1. “DWI is a strict liability crime. It requires no intent. Thus, the notion of extra punishment for one’sfailure to reform does not apply. Punishment is tied instead to recurrence of the offense. The increase inpunishment with repetition is most appropriately viewed as pure punishment for committing a strict liabilityoffense. Deterrence flows from the certainty of increasing pure punishment rather than from the missedopportunity to reform.” Hernandez, 2001-NMCA-057, ¶26.

State v. Anaya, 1997-NMSC-010, 123 N.M. 14. “We hold that the most recent amendment to the DWIstatutes did not alter the elements required to establish the offense of DWI and thus that proof of priorconvictions is not an element of felony DWI.” Anaya, 1997-NMSC-010, ¶3. “We believe that the legislaturedid not intend to change the nature of the offense, but rather sought to increase the punishment forsubsequent offenders by conferring fourth-degree-felony status on fourth or subsequent DWI convictions.” Anaya, 1997-NMSC-010, ¶14. “The legislature consistently has separated the basic definition of the offensefrom the sentencing provisions for repeat offenses. On the basis of this long-standing separation of offensedefinition and sentencing provisions, we conclude that in its deliberations the legislature more likely intendedto enhance the sentence for repeat offenders rather than to create a new offense with discrete elements thanthose already provided in Subsections 66-8-102(A) to (D).” Anaya, 1997-NMSC-010, ¶18.

State v. Woodruff, 1997-NMSC-061, 124 N.M. 388. “[T]he United States Supreme Court held that a prioruncounseled conviction could be used to enhance a subsequent conviction, even if the defendant had notwaived his right to counsel in connection with the prior conviction, provided the prior conviction did notresult in a sentence of imprisonment.” Woodruff, 1997-NMSC-061, ¶5. “We conclude that the use of a prioruncounseled misdemeanor DWI conviction not resulting in a sentence of imprisonment to enhance asubsequent misdemeanor DWI conviction does not violate the New Mexico Constitution.” Woodruff, 1997-NMSC-061, ¶37.

101

State v. Gonzales, 1997-NMSC-050, 124 N.M.171. “The State had the burden of persuasion; that is, theState was required to show the validity of the prior convictions.” Gonzales, 1997-NMSC-050, ¶14. “Byintroducing evidence that Defendant was the same person who was convicted of the previous crimes, theState thus established a prima facie case. Once the State’s exhibits establish a prima facie case that adefendant has previously pleaded guilty to [the prior offenses], the defendant is entitled to bring fourthcontrary evidence, but it is his burden to do so.” Gonzales, 1997-NMSC-050, ¶14.

State v. Hosteen, 1997-NMSC-063, 124 N.M. 402. “In Gonzales, we decided that a prior uncounseledmisdemeanor conviction could be used to enhance a subsequent conviction, provided the prior convictiondid not result in a sentence of imprisonment or, if it had resulted in a sentence of imprisonment, the right tocounsel had been validly waived.” Hosteen, 1997-NMSC-063, ¶4.

State v. Diaz, 2007-NMCA-026, 141 N.M. 223. “We conclude that all prior DWI offenses which could beused to enhance Defendant’s DWI sentence had to be proved by the State at the sentencing hearing.” Diaz,2007-NMCA-026, ¶2.

State v. Bullcoming, 2008-NMCA-097, 144 N.M. 546. “A beyond a reasonable doubt standard does notapply to a finding of a prior DWI conviction for purposes of DWI sentencing.” Bullcoming, 2008-NMCA-097, ¶27.

State v. Pino, 1997-NMCA-001, 122 N.M. 789. “We hold that the lack of a countersignature [of a districtpublic defender] on Defendants’ waiver of counsel forms does not of itself make that waiver invalid forpurpose of enhancing later convictions.” Pino, 1997-NMCA-001, ¶16.

State v. Sedillo, 2001-NMCA-001, 130 N.M. 98. “The question we address in this case is whether an orderin the form of a judge’s handwritten notations is sufficient to prove prior conviction for driving whileintoxicated (DWI). We hold that a fact finder is permitted, but not required, to find the fact of a priorconviction where, as here, the prior conviction is proved by a judge’s handwritten abbreviations on acomplaint. A defendant is, of course, permitted to challenge the fact of such a conviction, but a fact finderdoes not have to accept the challenge and may find that the defendant’s challenge creates a mere conflict inthe evidence and therefore find that the conviction occurred. The fact finder may also rule in favor of adefendant’s challenge and find that the conviction did not occur.” Sedillo, 2001-NMCA-001, ¶1. “Proofbeyond a reasonable doubt of the prior DWI conviction is not needed. The State bears the initial burden ofestablishing a prima facie case of a defendant’s previous convictions. The defendant is then entitled to bringforth contrary evidence. However, the State bears the ultimate burden of persuasion on the validity of priorconvictions.” Sedillo, 2001-NMCA-001, ¶5. “Thus, there does not need to be a filed and stamped judgmentand sentence.” Sedillo, 2001-NMCA-001, ¶9.

FACTS: Complaint was file-stamped, signed, and dated by the court clerk in 1987. Guiltyplea was handwritten on complaint, was dated, and signed by judge. Waiver ofcounsel was signed by defendant and judge and was dated, but had no file-stamp. On the reverse sides of complaint and waiver, court clerk certified and dateddocuments. Court held that trial court could have found by a preponderance of theevidence that Defendant previously convicted of DWI in 1987.

102

State v. Gaede, 2000-NMCA-004, 128 N.M. 559. “New Mexico law provides that a finding of guiltconstitutes a conviction, even if there is a deferred sentence ending in dismissal of the charges, a pardon, orthe entry of an order setting aside a conviction following a defendant’s satisfactory completion of probation.” Gaede, 2000-NMCA-004, ¶12. “Absent a showing that Defendant’s plea of guilty or no contest to a chargeof DWI is expressly conditioned upon a promise that his conviction will not be used in the future to aggravatesubsequent DWI sentences, Defendant is not entitled to a claim of immunity from future enhancement ofsubsequently committed DWI offenses.” Gaede, 2000-NMCA-004, ¶16.

State v. Pacheco, 2008-NMCA-059, 144 N.M. 61. “...[B]ecause a successful collateral attack on a priorconviction requires a showing of fundamental error, it was Defendant’s burden to produce evidencedemonstrating the invalidity of those convictions, not the State’s burden to prove their validity.” Pacheco,2008-NMCA-059, ¶8. “...[A] defendant who wishes to collaterally attack a prior DWI conviction bears theburden of proving that some error occurred that would require it to be considered void. According to Pino,in order to meet that burden in the present case, Defendant was required to prove that the alleged proceduraland constitutional deficiencies associated with her prior DWI convictions amounted to fundamental error.” Pacheco, 2008-NMCA-059, ¶9. “In order for a defendant to make a successful showing of fundamentalerror, ‘the errors complained of must be such as go to the foundation of the case, and which deprive thedefendant of rights essential to his defense.’ In applying the fundamental error test to claims involving guiltyor no contest pleas, this Court has stated that the following factors must be met: ‘(1) the error must be clear,and (2) the error must clearly have affected the outcome.’” Pacheco, 2008-NMCA-059, ¶12.

State v. Redhouse, 2011-NMCA-118. “We conclude that the district court did not err in determining hat the1972 DWI conviction could properly be used to enhance Defendant’s current DWI conviction because the1972 DWI conviction resulted in the imposition of a fine and Defendant was not subjected to jail time forthis prior conviction.” Redhouse, 2011-NMCA-118, ¶17.

FACTS: Evidence established that when Defendant was arrested in 1972 for DWI, she spentsome time in jail after arrest but prior to her conviction. Amount of time spent injail was unclear. Court’s review showed that Defendant was sentenced to pay a fineand attend DWI classes. Defendant was arrested on a second DWI. Defendantordered to pay a fine on second DWI and the remaining fine on the 1972 conviction. Defendant was also jailed for 30 days for the second DWI. Court found that therewas substantial evidence to support the district court’s determination that Defendantwas not sentenced to a term of incarceration as a result of her 1972 DWI conviction.

State v. Yazzie, 2009-NMCA-040, 146 N.M. 115. “The DWI sentencing statute is significantly different fromthe habitual offender statutes. When a DWI offense is proved, sentencing is then ‘set by and tied to thenumber of times an offender has been convicted of the offense.’ Here, Defendant agreed that he committedtwo separate DWI offenses, and the State showed that Defendant had three prior DWI convictions. Thejudgment and sentence entered two separate convictions based on Defendant’s plea agreement and acceptedproof that Defendant had three prior convictions. Therefore, under our DWI statute, the appropriate sentencefor Count 1 based on the plea agreement was the sentence under the statute ‘[u]pon a fourth conviction,’ andthe appropriate sentence for Count 2 based on the plea agreement was the statutory sentences ‘[u]pon a fifthconviction.” Yazzie, 2009-NMCA-040, ¶6.

FACTS: Defendant pleaded to two separate DWIs at the same time. Had three prior DWIconvictions. Based on plea agreement, Defendant admitted two more DWIconvictions. Court sentenced based on fourth and fifth offenses. Defendantcontended that neither one was “prior” to the other and that the court erred when itsentenced Defendant to a fourth and fifth conviction. Court disagreed.

103

State v. Lewis, 2008-NMCA-070, 144 N.M. 156. “We hold that Section 66-8-102 requires that equivalentout-of-state convictions be used to enhance a defendant’s sentence for repeated DWI convictions.” Lewis,2008-NMCA-070, ¶1. “Under Subsection (Q), a DWI-equivalent conviction from another state shallconstitute a DWI conviction under Section 66-8-102 in determining whether the current conviction in NewMexico is a second or subsequent conviction, as long as the out-of-state conviction is based on a law that isequivalent to Section 66-8-102 and prescribes penalties for DWI. Thus, when a defendant has three priorconvictions, a defendant must be sentenced to a fourth DWI conviction pursuant to 66-8-102(G), even thoughnot all of the convictions occurred in New Mexico. Subsection (Q) requires a sentencing court to give effectto a defendant’s out-of-state convictions. Because the statute is clear, it should be applied as written.” Lewis, 2008-NMCA-070, ¶11. “Based on the plain language and history of Section 66-8-102, a DWIconviction from another state must be used to determine the number of prior convictions for purposes ofsentence enhancement under the statute.” Lewis, 2008-NMCA-070, ¶21. “Our statute does not further defineequivalency. However, we agree with Defendant that the focus of our inquiry in determining whether twostatutes are equivalent should be on the elements of the statutes.” Lewis, 2008-NMCA-070, ¶25. “To theextent that Defendant argues that a [driving while ability impaired] statute must be identical to a DWI statuteto be equivalent, we disagree. As the cases we have cited indicate, the critical factor for a court to determineis whether the elements are equivalent. In particular, the focus must be on the degree of impairmentprohibited by the statute.” Lewis, 2008-NMCA-070, ¶38.

104

Child Abuse by Endangerment

State v. Castaneda, 2001-NMCA-052, 130 N.M. 679. “We hold that the district court should have mergedthe three counts of child abuse because the abuse of the three children occurred during a single criminallynegligent act and therefore constituted only one violation of [NMSA 1978, §30-6-1].” Castanada, 2001-NMCA-052, ¶18. “In the present case, Defendant committed one continuous act amounting to childabuse–driving while intoxicated with children in the vehicle that were not restrained. The time and locationof the alleged child abuse was the same for each of the three children. Defendant’s intent in driving whileunder the influence was unitary...We therefore hold that, under the circumstances of this case, Defendant wassubject to only one charge and one punishment for child abuse.” Castanada, 2001-NMCA-052, ¶14. “Weemphasize that our holding is limited to the facts of this case...We further emphasize that a single unit ofprosecution in a child abuse case involving multiple victims is only appropriate where the children have notactually been harmed.” Castanada, 2001-NMCA-052, ¶15.NOTE: The court says multiple times that its holding is limited to the facts of this case. What that meansis that this holding only works for run-of-the-mill child abuse/DWI cases–drunk driver with children in thecar with the vehicle in motion. In those situations, only one count of child abuse can be charged regardlessof how many children are in the vehicle.

State v. Orquiz, 2012-NMCA-080. “We conclude that Defendant’s moving DWI alone...provided a sufficientfactual basis for his child abuse by endangerment conviction, even if his DWI did not otherwise separatelyevince indicia of unsafe driving.” Orquiz, 2012-NMCA-080, ¶1. “...[I]rrespective of what causedDefendant’s accident–bad brakes or impairment to his judgment or physical ability as a consequence of hisintoxication–the relevant inquiry for the jury to resolve was whether Defendant, while intoxicated, drove amoving vehicle with his child as a passenger. We conclude that this circumstance alone, without more, isa sufficient basis upon which to support his child abuse by endangerment conviction.” Orquiz, 2012-NMCA-080, ¶8. “In light of...the requirement that the risk of harm to a child be substantial and foreseeable, our caselaw holds that a conviction for child abuse by endangerment cannot be sustained when premised upon a DWIconviction that is based on the driver being in actual physical control of a non-moving vehicle with a childoccupant.” Orquiz, 2012-NMCA-080, ¶10. “Unlike Etsitty and Cotton, in which the actions of intoxicateddrivers in physical control of non-moving vehicles presented a mere theoretical danger to their childpassengers, Defendant undertook the non-theoretical peril of driving a moving vehicle, while intoxicated,with a child passenger. This significant distinction actualized the potential peril presented by our ‘physicalcontrol’ cases. As emphasized by the State, beyond merely being a witness to or in proximity of a dangerousevent, Defendant’s actions placed his child inescapably within a moving zone of danger. For this reason,even assuming that brake failure caused the accident rather than Defendant’s intoxication, we conclude thatDefendant was nonetheless properly convicted of child abuse by endangerment. We recognize that most ofour cases for child abuse by endangerment in the context of DWI based on actual driving occurred incircumstances which bore additional indicia of unsafe driving, or other ‘plus factors’ that arose as theapparent consequence of the driver’s impairment. But our case law has never required such ‘plus factors’to be present when the child abuse is premised on a DWI with a child present in a moving vehicle.” Orquiz,2012-NMCA-080, ¶¶11-12.

FACTS: Defendant was driving his vehicle with his child in it. He drove through anintersection without stopping at a stop sign and crashed. Child suffered a busted lipand scratches on his face and chest. Defendant told officers that he wasn’t able tostop because his brakes failed. Defendant smelled of alcohol and admitted toconsuming a 6-pack from noon to 3:00 p.m. He took and failed SFSTs and had abreath score of 0.16/0.17.

105

State v. Etsitty, 2012-NMCA-012. “To convict Defendant of child abuse by endangerment, the State had theburden of proving beyond a reasonable doubt that Defendant caused a child to be placed in a situation thatendangered his life or health and did so with reckless disregard for the safety of the child. Reckless disregardrequires that Defendant ‘knew or should have known [his] conduct created a substantial and foreseeable risk,[he] disregarded that risk and [he] was wholly indifferent to the consequences of the conduct and to thewelfare and safety of [the child].’” Etsitty, 2012-NMCA-012, ¶6. “Clearly, had Defendant carried out hisintentions and begun to drive with his child in the car, or had there been evidence that Defendant was drivingwhile intoxicated prior to his contact with the police, he could have been convicted of child abuse byendangerment. But without evidence of actual driving, Defendant had not yet put the child in real peril.” Etsitty, 2012-NMCA-012, ¶11.

FACTS: At the time of police contact, Defendant was sitting outside a residence in thedriver’s seat of a truck. Child was on the other end of front bench seat. Defendantappeared to be impaired. The keys were in Defendant’s hand. He told officers hewas planning to go to a local store, but Defendant never drove the truck. Court heldthat Defendant’s conduct supported the DWI conviction, but did not rise to the levelrequired by the child abuse statute.

State v. Gonzales, 2011-NMCA-081, 150 N.M. 494. “We hold that a discernable risk of danger to aparticular child or particular children is required to support a conviction for negligent child abuse byendangerment under NMSA 1978, Section 30-6-1 (D) (2004) (amended 2009). We further hold that for adefendant to be criminally liable for child abuse by endangerment, he or she must be aware of a particulardanger to the identifiable child or children when engaging in the conduct that create the risk of harm.” Gonzales, 2011-NMCA-081, ¶1. “The defendant must have knowledge of potential and likely consequencesof the endangering behavior that results in a palpable and foreseeable danger to a child. This is more thanmerely a ‘possibility, however remote, that harm may result to a child.’” Gonzales, 2011-NMCA-081, ¶20. “...[P]lacing a child in a dangerous situation and in the direct line of danger, however briefly, must precedethe injury that is likely to result from that danger. Since it is the endangerment and not the resulting injurythat constitutes the offense, there must be an actual or imputed foreseeability of danger directed toward thechildren who might be injured as a result of Defendant’s acts.” Gonzales, 2011-NMCA-081, ¶20. (Internalcitations omitted). “...[T]he defendant’s conduct must create a substantial and foreseeable risk of harm toan identified or identifiable child within the zone of danger. The risk cannot be merely hypothetical, as thechild must be physically close to an inherently dangerous situation of the defendant’s creation. Theextension of risk to encompass any unidentified child who might hypothetically be present within the generalpopulation that is endangered by a drunk driver’s conduct is too broad an application of this statute.” Gonzales, 2011-NMCA-081, ¶21. “In addition to the requirement that the defendant create a substantial andforeseeable risk of harm–placing a child in the zone of danger–the defendant must also direct his or hercriminal negligence toward a child specifically and not solely at the general public.” Gonzales, 2011-NMCA-081, ¶22.

FACTS: Defendant drove on the interstate while severely drunk, sideswiped one car, andploughed into the rear of another car, killing one child and injuring a second childwho were riding in the back seat. Court stated that the facts established theaccidental nature of the harm to the children and that Defendant’s reckless behaviorendangered all people on the road. There was no evidence that the children weresubjected to any particular danger that wasn’t shared by all fellow motorists andtheir passengers. Defendant did not specifically act in a criminally negligentmanner with regard to endangering these particular children. Court ordered that theconvictions for child abuse be vacated.

106

State v. Cotton, 2011-NMCA-096, 150 N.M. 583. “‘Child abuse by endangerment...is a special classificationdesigned to address situations where an accused’s conduct exposes a child to a significant risk of harm, eventhough the child does not suffer a physical injury.’” Cotton, 2011-NMCA-096, ¶17. “The Court explainedthat this standard–whether the defendant’s conduct created a substantial and foreseeable risk of harm–‘moreclosely aligns with the legislative purpose that animates the child endangerment status–to punish conductthat creates a truly significant risk of serious harm to children.’” Cotton, 2011-NMCA-096, ¶17.

FACTS: Defendant sitting in the driver’s seat of a van parked by the side of road. Heexhibited signs of impairment and admitted to consuming alcohol. The other adultpassenger in the van was impaired. The van wasn’t running, and the keys weren’tin the ignition. Four kids were in the backseat of the van. Defendant never droveaway. Court concluded that the theoretical danger to the children posed by thepossibility of Defendant’s impaired driving was insufficient to support Defendant’schild abuse conviction.

State v. Melendrez, 2014-NMCA-062. “Based on Gonzales, Section 30-6-1(D) requires that a defendantcreate a discernable, particular risk or danger to a particular or identifiable child or children.” Melendrez,2014-NMCA-062, ¶17. “But, this case is distinguishable from Gonzales because Defendant created asubstantial and foreseeable risk to particular children by driving into a group that contained nine children. Defendant does not argue that he did not see the children. Furthermore, there was evidence indicating thatthe group was visible to motorists in that the driver of the car who drove down the street just prior toDefendant saw the group of trick or treaters, slowed down, and navigated around them. There was alsoevidence that Defendant altered his course and drove toward the group. Defendant’s actual or constructiveawareness of the presence of children is dispositive. The jury heard sufficient evidence to conclude thatDefendant knew or should have known that his conduct created a substantial and foreseeable risk of injuryto the nine children that he drove toward.” Melendrez, 2014-NMCA-062, ¶18.

107

Homicide by Vehicle

NMSA 1978, §66-8-101(A). “Homicide by vehicle is the killing of a human being in the unlawful operationof a motor vehicle.”

An unborn viable fetus is not a “human being” within the meaning of 66-8-101(A). State v. Willis, 1982-NMCA-151.

NMSA 1978, §66-8-101(C). “A person who commits homicide by vehicle...while under the influence ofintoxicating liquor or while under the influence of any drug or while violating Section 66-8-113 NMSA 1978[reckless driving] is guilty of a third degree felony and shall be sentenced to the provisions of Section 31-18-15 NMSA 1978, provided that violation of speeding laws as set forth in the Motor Vehicle Code shall notper se be a basis for violation of Section 66-8-113 NMSA 1978.”NOTE: This version of this statute is effective only until July 1, 2016.

NMSA 1978, §66-8-101(D). “A person who commits homicide by vehicle...while under the influence ofintoxicating liquor or while under the influence of any drug, as provided in Subsection C of this section, andwho has incurred a prior DWI conviction within ten years of the occurrence for which he is being sentencedunder this section shall have his basic sentenced increased by four years for each prior DWI conviction.”NOTE: This version of this statute is effective only until July 1, 2016.

NMSA 1978, §66-8-101(C). “A person who commits homicide by vehicle while under the influence ofintoxicating liquor or while under the influence of any drug is guilty of a second degree felony and shall besentence pursuant to the provisions of Section 31-18-15 NMSA 1978.NOTE: This version of this statute is effective beginning July 1, 2016 and supersedes prior versionsof the statute.

NMSA 1978, §66-8-101(D). A person who commits homicide by vehicle while violating Section 66-8-113NMSA 1978 [reckless driving] is guilty of a third degree felony and shall be sentenced pursuant to theprovisions of Section 31-18-15 NMSA 1978, provided that violation of speeding laws as set forth in theMotor Vehicle Code shall not per se be a basis for violation of Section 66-8-113 NMSA 1978.”NOTE: This version of this statute is effective beginning July 1, 2016 and supersedes prior versionsof the statute.

NMSA 1978, §66-8-101(F). “A person who commits homicide by vehicle...while under the influence ofintoxicating liquor or while under the influence of any drug, as provided in Subsection C or E of this section,and who has incurred a prior DWI conviction within ten years of the occurrence for which the person is beingsentenced under this section shall have the person’s basic sentenced increased by four years for each priorDWI conviction.”NOTE: This version of this statute is effective beginning July 1, 2016 and supersedes prior versionsof the statute.

NMSA 1978, §31-18-15(A)(4). “If a person is convicted of a noncapital felony, the basic sentence ofimprisonment is as follows: for a second degree felony resulting in the death of a human being, fifteen yearsimprisonment...”

NMSA 1978, §31-18-15(A)(7). “If a person is convicted of a noncapital felony, the basic sentence ofimprisonment is as follows: for a third degree felony resulting in the death of a human being, six yearsimprisonment...”

108

State v. Telles, 1999-NMCA-013. “The plain meaning of Section 66-8-101, we believe does not evince alegislative intend to adopt the crime-conviction, crime-conviction sequence for its enhancement purposes.” Telles, 1999-NMCA-013, ¶23.

UJI 14-240. Homicide by Vehicle [Driving while under the influence of intoxicating liquor]; EssentialElements.“For you to find the defendant guilty of causing death by vehicle, the state must prove to your satisfactionbeyond a reasonable doubt each of the following elements of the crime:1. The defendant operated a motor vehicle while under the influence of intoxicating liquor;2. The defendant thereby caused the death of _____________ (name of victim);3. This happened in Bernalillo County, New Mexico, on or about the __ day of ________, _____.”

UJI 14-243. Vehicle Homicide; “Under the Influence of Intoxicating Liquor”; Defined.“A person is under the influence of intoxicating liquor when as a result of drinking liquor the person is lessable, to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steadyhand necessary to handle a vehicle with safety to the person and the public.”

UJI 14-240. Homicide by Vehicle [Driving while under the influence of a drug]; Essential Elements.“For you to find the defendant guilty of causing death by vehicle, the state must prove to your satisfactionbeyond a reasonable doubt each of the following elements of the crime:1. The defendant operated a motor vehicle while under the influence of ____________, a drug;2. The defendant thereby caused the death of _____________ (name of victim);3. This happened in Bernalillo County, New Mexico, on or about the __ day of ________, _____.”

UJI 14-245. Vehicle Homicide; “Under the Influence of a Drug”; Defined.“A person is under the influence of a drug when as a result of using a drug the person is incapable of safelydriving a vehicle.”

UJI 14-240. Homicide by Vehicle [Driving in a reckless manner]; Essential Elements.“For you to find the defendant guilty of causing death by vehicle, the state must prove to your satisfactionbeyond a reasonable doubt each of the following elements of the crime:1. The defendant operated a motor vehicle in a reckless manner;2. The defendant thereby caused the death of _____________ (name of victim);3. This happened in Bernalillo County, New Mexico, on or about the __ day of ________, _____.”

UJI 14-241. Homicide by Vehicle; “Driving in a Reckless Manner”; Defined.“For you to find that the defendant operated a motor vehicle in a reckless manner, you must find that thedefendant drove with willful disregard of the safety of others and at a speed or in a manner that endangeredor was likely to endanger any person.”

State v. Marquez, 2010-NMCA-064. “However, as the committee commentary for the jury instruction onhomicide or great bodily injury by vehicle states, the offense of ‘[h]omicide or great bodily injury by vehicleis not a strict liability crime and requires a mens rea element, ‘a mental state of conscious wrongdoing.’’ OurSupreme Court has previously defined conscious wrongdoing as the ‘purposeful doing of an act that the lawdeclares to be a crime.’ ‘Thus, the mental state required for vehicular homicide (conscious wrongdoing)requires only that a defendant purposefully engage in an unlawful act.’” Marquez, 2010-NMCA-064, ¶12. (Internal citations omitted).

109

State v. Munoz, 1998-NMSC-041. “The purpose of the vehicular homicide statute is not to apportionpercentages of fault for an accident, but to punish reckless driving or impaired driving when such conductresults in death or great bodily injury. As such, a determination of guilt, though ‘all’ rather than ‘nothing’in terms of its grave consequences for the defendant, is not a finding that the defendant is one hundredpercent responsible for causing the accident. Instead, it is a judgment that the defendant should be heldcriminally responsible for his or her role in causing death or serious bodily injury to another human being.” Munoz, 1998-NMSC-041, ¶20. “The jury need not ascertain a numerical percentage of fault; rather, itsverdict is its answer to the question of whether the defendant was at fault to a significant extent or not. Wenote that, in vehicular homicide cases, a showing of ‘but for’ causation is often sufficient to support aconclusion that the defendant’s degree of fault is significant. Such a showing establishes that ‘but for’ theunlawful act or acts of the defendant the accident would not have been fatal. Thus, a jury’s guilty verdictin a vehicular homicide case is its determination that the defendant had the power to prevent the victim’sdeath by driving lawfully instead of recklessly or while intoxicated.” Munoz, 1998-NMSC-041, ¶22. “...[T]here must be a significant link between the victim’s death and the defendant’s acts of reckless drivingor driving while intoxicated.” Munoz, 1998-NMSC-041, ¶23.

State v. Munoz, 2014-NMCA-101. “Defendant correctly argues that speeding alone is insufficient toconstitute recklessness. But speeding can constitute recklessness if the speeding created a danger for othersand additional conduct establishes that a driver willfully disregarded the safety of others.” Munoz, 2014-NMCA-101, ¶10.

FACTS: Prior to the fatal collision with victim, witness saw Defendant driving above speedlimit and passing other cars. Officer stopped Defendant based on witness’ call topolice and warned Defendant to slow down before he hurt someone. Officer alsotold Defendant what the speed limit was and that it would be decreasing ahead. Thefatal collision occurred 1-1.5 miles from where Officer stopped Defendant. Factsestablished that Defendant was traveling 19-24 miles over the posted speed limit. Court held that Defendant’s actions were sufficient to establish recklessness. Courtalso found that Defendant’s failure to comply with Officer’s warning was evidenceof a willful and wanton disregard for the rights and safety of others. Witness alsosaid that Defendant appeared to be laughing as he veered his car towards thevictim’s, which could be reasonably inferred to depict a disregard for the rights andsafety of others.

State v. Wiberg, 1988-NMCA-022. “‘Under the concept of merger, defendant can properly be convicted ofboth the lesser and greater offenses but can only be punished for one of those offenses. The sentence to bevacated is that imposed for the lesser offense because it is that offense which merges with the greater offense. Accordingly, defendant’s DWI offense merges with his vehicular homicide offense, and defendant’s sixmonth sentence for the DWI conviction must be vacated.” Wiberg, 1988-NMCA-022, ¶28.

State v. Santillanes, 2001-NMSC-018. “‘The rule of merger precludes an individual’s conviction andsentence for a crime that is a lesser included offense of a greater charge upon which defendant has also beenconvicted. Although the state properly may charge in the alternative, where defendant is convicted of oneor more offenses which have merged into the greater offense he [or she] may be punished for onlyone...Under Pierce, concurrent sentencing does not adequately remedy the imposition of impermissiblemultiple punishments for a single offense; double jeopardy requires that the lesser offense merge into thegreater offense such that the conviction of the lesser offense, not merely the sentence, is vacated.” Santillanes, 2001-NMSC-018, ¶28. (Internal citations omitted).

110

NMSA 1978, §33-2-34(A). “...Meritorious deductions shall not exceed the following amounts: (1) for aprisoner confined for committing a serious violent offense, up to a maximum of four days per month of timeserved...”

NMSA 1978, §33-2-34(L)(4)(o). “‘serious violent offense’ means:...any of the following offenses, when thenature of the offense and the resulting harm are such that the court judges the crime to be a serious violentoffense for the purpose of this section: 14) third degree homicide by vehicle or great bodily harm by vehicle,as provided in Section 66-8-101 NMSA 1978...”

State v. Morales, 2002-NMCA-016, abrogated on other grounds by State v. Frawley, 2007-NMSC-057. “Wealso hold that the judge must find either an intent to do serious harm or knowledge that one’s acts arereasonably likely to result in serious harm in order for an offense listed in [Subsection (L)(4)(o), previouslySubsection (L)(4)(n)] to be considered a serious violent offense.” Morales, 2002-NMCA-016, ¶1. “Likewise, homicide by vehicle always results in death, but it can be committed by one who had only onedrink but is thereby less able to drive safely, or it can be committed by one who intentionally and habituallygets drunk to the point of being several times over the legal limit, knowing that he or she must drive in acrowded area and is in no shape to do so, but does so nonetheless.” Morales, 2002-NMCA-016, ¶15. “Ourcomparison of the offenses listed in Subsections (a) through [(n), previously (m)] on the one hand and [(o),previously (n)] on the other leads us to the conclusion that the legislature wanted to reserve the seriousviolent offenses for those found by the trial judge to be committed in a physically violent manner either withan intent to do serious harm or with recklessness in the face of knowledge that one’s acts are reasonablylikely to result in serious harm. Of course, the statutory factor of actual ‘resulting’ harm may be consideredin determining a defendant’s intent.” Morales, 2002-NMCA-016, ¶16.

State v. Lavone, 2011-NMCA-084. “A determination that an offense is a serious violent offense may not bebased on the physically violent death of the victim and must be based on something more than the mereelements of the crime. The determination is highly dependent on the ‘particular factual context’ of the case.”Lavone, 2011-NMCA-084, ¶8. (Internal citations omitted).

State v. Coyazo, 2001-NMCA-018. “Therefore, we hold that the aggravation statute, NMSA 1978, §31-18-15.1...cannot be used to enhance the basic sentence for conviction of a DWI felony.” Coyazo, 2001-NMCA-018, ¶2.

State v. Anaya, 1997-NMSC-010. “Moreover, we conclude that the legislature did not intend that defendantsconvicted of a fourth or subsequent DWI offense should be subject to enhancement under both the felonyDWI provision and the habitual offender statute [NMSA 1978, §31-18-17].” Coyazo, 2001-NMCA-018, ¶2.

State v. Begay, 2001-NMSC-002. “Therefore, legislative intent to have a fourth DWI felony convictionconsidered a felony for purposes other than providing a term of imprisonment greater than one year remainsuncertain. Our rule of lenity requires that we construe the statute in favor of Defendants.” Begay, 2001-NMSC-002, ¶9. “Although ‘the [L]egislature can make multiple convictions for misdemeanor DWI a felony,we do not agree that it intended to make this ‘new felony’ a fourth degree felony for habitual offendersentencing purposes.’” Begay, 2001-NMSC-002, ¶10. (Internal citations omitted).

111

State v. Gray, 2016-NMCA-_______, (No. 33,940, Aug. 4, 2016). “The language of the statute at issue[Section 66-8-101 (D), current version at Section 66-8-101 (F)] is that the perpetrator ‘who has incurred aprior DWI conviction within ten years of the occurrence for which he is being sentenced...shall have his basicsentence increased by four years for each prior DWI conviction.’ We interpret the existence of ‘a prior DWIconviction within ten years’ to allow enhancement for each such conviction within that ten-year period. Thus, the enhancement can be added only for those prior convictions occurring within the ten-year period.” Gray, 2016-NMCA-_______, ¶19.

112

Great Bodily Harm by Vehicle

NMSA 1978, §66-8-101(B). “Great bodily harm by vehicle is the injuring of a human being, to the extentdefined in Section 30-1-12, NMSA 1978, in the unlawful operation of a motor vehicle.”

NMSA 1978, §30-1-12(A). “‘Great bodily harm’ means an injury to the person which creates a highprobability of death; or which causes serious disfigurement; or which results in permanent or protracted lossor impairment of the function of any member or organ of the body.”

NMSA 1978, §66-8-101(C). “A person who commits...great bodily harm by vehicle while under theinfluence of intoxicating liquor or while under the influence of any drug or while violating Section 66-8-113NMSA 1978 [reckless driving] is guilty of a third degree felony and shall be sentenced to the provisions ofSection 31-18-15 NMSA 1978, provided that violation of speeding laws as set forth in the Motor VehicleCode shall not per se be a basis for violation of Section 66-8-113 NMSA 1978.”NOTE: This version of this statute is effective only until July 1, 2016.

NMSA 1978, §66-8-101(D). “A person who commits...great bodily harm by vehicle while under theinfluence of intoxicating liquor or while under the influence of any drug, as provided in Subsection C of thissection, and who has incurred a prior DWI conviction within ten years of the occurrence for which he isbeing sentenced under this section shall have his basic sentenced increased by four years for each prior DWIconviction.”NOTE: This version of this statute is effective only until July 1, 2016.

NMSA 1978, §66-8-101(E). “A person who commits great bodily harm by vehicle while under the influenceof intoxicating liquor, while under the influence of any drug or while violating Section 66-8-113 NMSA 1978[reckless driving] is guilty of a third degree felony and shall be sentenced pursuant to the provisions ofSection 31-18-15 NMSA 1978, provided that violation of speeding laws as set forth in the Motor VehicleCode shall not per se be a basis for violation of Section 66-8-113 NMSA 1978.”NOTE: This version of this statute is effective beginning July 1, 2016 and supersedes prior versionsof the statute.

NMSA 1978, §66-8-101(F). “A person who commits...great bodily harm by vehicle while under theinfluence of intoxicating liquor or while under the influence of any drug, as provided in Subsection C or Eof this section, and who has incurred a prior DWI conviction within ten years of the occurrence for whichthe person is being sentenced under this section shall have the person’s basic sentenced increased by fouryears for each prior DWI conviction.”NOTE: This version of this statute is effective beginning July 1, 2016 and supersedes prior versionsof the statute.

NMSA 1978, §31-18-15(A)(9). “If a person is convicted of a noncapital felony, the basic sentence ofimprisonment is as follows: for a third degree felony, three years imprisonment...”

UJI 14-240. Great Bodily Injury by Vehicle [Driving while under the influence of intoxicating liquor];Essential Elements.“For you to find the defendant guilty of causing great bodily injury by vehicle, the state must prove to yoursatisfaction beyond a reasonable doubt each of the following elements of the crime:1. The defendant operated a motor vehicle while under the influence of intoxicating liquor;2. The defendant thereby caused the great bodily injury to _____________ (name of victim);3. This happened in Bernalillo County, New Mexico, on or about the __ day of ________, _____.”

113

UJI 14-243. Great Bodily Injury by Vehicle; “Under the Influence of Intoxicating Liquor”; Defined.“A person is under the influence of intoxicating liquor when as a result of drinking liquor the person is lessable, to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steadyhand necessary to handle a vehicle with safety to the person and the public.”

UJI 14-240. Great Bodily Injury by Vehicle [Driving while under the influence of a drug]; EssentialElements.“For you to find the defendant guilty of causing great bodily injury by vehicle, the state must prove to yoursatisfaction beyond a reasonable doubt each of the following elements of the crime:1. The defendant operated a motor vehicle while under the influence of ____________, a drug;2. The defendant thereby caused the great bodily injury to _____________ (name of victim);3. This happened in Bernalillo County, New Mexico, on or about the __ day of ________, _____.”

UJI 14-245. Great Bodily Injury by Vehicle; “Under the Influence of a Drug”; Defined.“A person is under the influence of a drug when as a result of using a drug the person is incapable of safelydriving a vehicle.”

UJI 14-240. Great Bodily Injury by Vehicle [Driving in a reckless manner]; Essential Elements.“For you to find the defendant guilty of causing great bodily injury by vehicle, the state must prove to yoursatisfaction beyond a reasonable doubt each of the following elements of the crime:1. The defendant operated a motor vehicle in a reckless manner;2. The defendant thereby caused the great bodily injury to _____________ (name of victim);3. This happened in Bernalillo County, New Mexico, on or about the __ day of ________, _____.”

UJI 14-241. Great Bodily Injury by Vehicle; “Driving in a Reckless Manner”; Defined.“For you to find that the defendant operated a motor vehicle in a reckless manner, you must find that thedefendant drove with willful disregard of the safety of others and at a speed or in a manner that endangeredor was likely to endanger any person.”

UJI 14-131. “Great Bodily Injury”; Defined.“Great bodily injury means an injury to a person which [creates a high probability of death] [or] [results inserious disfigurement] [or] [results in loss of any member or organ of the body] [or] [results in permanentor prolonged impairment of the use of any member or organ of the body].”

State v. Marquez, 2010-NMCA-064. “However, as the committee commentary for the jury instruction onhomicide or great bodily injury by vehicle states, the offense of ‘[h]omicide or great bodily injury by vehicleis not a strict liability crime and requires a mens rea element, ‘a mental state of conscious wrongdoing.’’ OurSupreme Court has previously defined conscious wrongdoing as the ‘purposeful doing of an act that the lawdeclares to be a crime.’” Marquez, 2010-NMCA-064, ¶12. (Internal citations omitted).

State v. Cordova, 2016-NMCA-019, cert. granted, 2015-NMCERT-________ (No. 35,386, Aug. 7, 2015). “‘Prolonged impairment,’ like ‘protracted impairment,’ means a ‘lengthy or unusually long time under thecircumstances.’ Thus, it was for the jury to determine whether the impairment was for a sufficientlyextended period of time so as to meet this definition. In this case, the jury determined that [the victim’s]extreme and immobilizing pain over the course of the month, in addition to recurrent bouts of pain, weresufficient to constitute great bodily injury, and we will not interfere with that determination.” Cordova,2016-NMCA-019, ¶19.

114

State v. Bell, 1977-NMSC-013. The statutory definition of great bodily harm does not require that thedisfigurement be permanent. Bell, 1977-NMSC-013, ¶14. “Furthermore, the law does not require that ‘greatbodily harm’ be proved exclusively by medical testimony. The jury is entitled to rely upon rationalinferences deducible from the evidence.” Bell, 1977-NMSC-013, ¶15.

NMSA 1978, §33-2-34(A). “...Meritorious deductions shall not exceed the following amounts: (1) for aprisoner confined for committing a serious violent offense, up to a maximum of four days per month of timeserved...”

NMSA 1978, §33-2-34(L)(4)(o). “‘serious violent offense’ means:...any of the following offenses, when thenature of the offense and the resulting harm are such that the court judges the crime to be a serious violentoffense for the purpose of this section: 14) third degree homicide by vehicle or great bodily harm by vehicle,as provided in Section 66-8-101 NMSA 1978...”

State v. Morales, 2002-NMCA-016, abrogated on other grounds by State v. Frawley, 2007-NMSC-057. “Wealso hold that the judge must find either an intent to do serious harm or knowledge that one’s acts arereasonably likely to result in serious harm in order for an offense listed in [Subsection (L)(4)(o), previouslySubsection (L)(4)(n)] to be considered a serious violent offense.” Morales, 2002-NMCA-016, ¶1. “Ourcomparison of the offenses listed in Subsections (a) through [(n), previously (m)] on the one hand and [(o),previously (n)] on the other leads us to the conclusion that the legislature wanted to reserve the seriousviolent offenses for those found by the trial judge to be committed in a physically violent manner either withan intent to do serious harm or with recklessness in the face of knowledge that one’s acts are reasonablylikely to result in serious harm. Of course, the statutory factor of actual ‘resulting’ harm may be consideredin determining a defendant’s intent.” Morales, 2002-NMCA-016, ¶16.

State v. Gray, 2016-NMCA-_______, (No. 33,940, Aug. 4, 2016). “We hold that Section 66-8-101 (C)[current version at Section 66-8-101 (E)] does not apply to Defendant, the perpetrator, where the great bodilyinjury resulting from his unlawful conduct was to himself and not to others.” Gray, 2016-NMCA-_______,¶2. “We see no unstated or implicit intention under the Criminal and Motor Vehicle Codes that a DWI driveris to be considered the victim and imprisoned for having committed great bodily harm to himself.” Gray,2016-NMCA-_______, ¶16. “The social evil of DWI is rationally related to the monstrous consequencesthat occur when the perpetrator kills or harms others, whether they are pedestrian, passengers, or persons inother vehicles...We construe Section 66-8-101 (C) [current version at Section 66-8-101 (E)] as applying onlywhen a driver while under the influence of an intoxicant has caused great bodily harm to another humanbeing.” Gray, 2016-NMCA-_______, ¶17. “The language of the statute at issue [Section 66-8-101 (D),current version at Section 66-8-101 (F)] is that the perpetrator ‘who has incurred a prior DWI convictionwithin ten years of the occurrence for which he is being sentenced...shall have his basic sentence increasedby four years for each prior DWI conviction.’ We interpret the existence of ‘a prior DWI conviction withinten years’ to allow enhancement for each such conviction within that ten-year period. Thus, the enhancementcan be added only for those prior convictions occurring within the ten-year period.” Gray, 2016-NMCA-_______, ¶19.

115

Speedy Trial

Barker v. Wingo, 407 U.S. 514 (1972). “But the rule we announce today, which comports with constitutionalprinciples, places the primary burden on the courts and the prosecutors to assure that cases are brought totrial.” Id. at 529. “The approach we accept is a balancing test, in which the conduct of both the prosecutionand the defendant are weighed. A balancing test necessarily compels courts to approach speedy trial caseson an ad hoc basis. We can do little more than identify some of the factors which courts should assess indetermining whether a particular defendant has been deprived of his right. Though some might express themin different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’sassertion of his right, and prejudice to the defendant.” Id. at 530. “The length of is to some extent atriggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessityfor inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of theright to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon thepeculiar circumstances of the case.” Id. at 530-531. “Closely related to length of delay is the reason thegovernment assigns to justify the delay. Here, too, different weights should be assigned to different reasons.” Id. at 531. The third factor is the defendant’s responsibility to assert his right. “Whether and how adefendant asserts his right is closely related to the other factors we have mentioned. The strength of hisefforts will be affected by the length of the delay, to some extent by the reason for the delay, and mostparticularly by the personal prejudice, which is not always readily identifiable, that he experiences. Themore serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of hisspeedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is beingdeprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant toprove that he was denied a speedy trial.” Id. at 531-532. “A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial rightwas designed to protect. This Court has identified three such interests: (I) to prevent oppressive pretrialincarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that thedefense will be impaired. Of these, the most serious is the last, because the inability of a defendantadequately to prepare his case skews the fairness of the entire system.” Id. at 532. “We regard none of thefour factors identified above as either a necessary or sufficient condition to the finding of a deprivation ofthe right of speedy trial. Rather, they are related factors and must be considered together with such othercircumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engagein a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of theaccused, this process must be carried out with full recognition that the accused’s interest in a speedy trial isspecifically affirmed in the Constitution.” Id. at 532. “We do not hold that there may never be a situationin which an indictment may be dismissed on speedy trial grounds where the defendant has failed to objectto continuances. There may be a situation in which the defendant was represented by incompetent counsel,was severely prejudiced, or even cases in which the continuances were granted ex parte. But barringextraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied thisconstitutional right on a record that strongly indicates...that the defendant did not want a speedy trial.” Id.at 536.

116

State v. Garza, 2009-NMSC-038, 146 N.M. 499. We “...abolish the presumption that a defendant’s right toa speedy trial has been violated based solely on the threshold determination that the length of delay is‘presumptively prejudicial.’” Garza, 2009-NMSC-038, ¶1. “...[We] also update our guidelines fordetermining the length of delay necessary to trigger the speedy trial inquiry to twelve months for simplecases, fifteen months for cases of intermediate complexity, and eighteen months for complex cases. Weemphasize that these guidelines are merely thresholds that warrant further inquiry into a defendant’s claimedspeedy trial violation and should not be construed as bright-line tests dispositive of the claim itself.” Garza,2009-NMSC-038, ¶2. “...[T]he substance of the speedy trial right is defined only through an analysis of thepeculiar facts and circumstances of each case.” Garza, 2009-NMSC-038, ¶11. “...[T]he speedy trial rightrequires actual and articulable deprivation of a defendant’s constitutional right.” Garza, 2009-NMSC-038,¶12. “Violation of the speedy trial right is only determined through a review of the circumstances of a case,which may not be divorced from a consideration of the State and the defendant’s conduct and the harm tothe defendant from the delay.” Garza, 2009-NMSC-038, ¶13. “In adopting the Barker analysis, this Courthas similarly rejected bright-line analyses of the right to a speedy trial.” Garza, 2009-NMSC-038, ¶14. “...[W]e abolish the presumption that a defendant’s right to a speedy trial has been violated based solely onthe threshold determination that the length of delay is ‘presumptively prejudicial.’ We hold instead that a‘presumptively prejudicial’ length of delay is simply a triggering mechanism, requiring further inquiry intothe Barker factors.” Garza, 2009-NMSC-038, ¶21. ...[W]here the defendant proves actual prejudice, theState retains its burden of persuasion on the ultimate question of whether the defendant’s right to a speedytrial has been violated.” Garza, 2009-NMSC-038, ¶22. (Internal citations omitted). “If a court determinesthat the length of delay is ‘presumptively prejudicial,’ then it should consider the length of delay as one offour factors in the analysis, none of which alone are [sic] sufficient to find a violation of the right.” Garza,2009-NMSC-038, ¶23. “Considering the length of delay as one of the four Barker factors, the greater thedelay the more heavily it will potentially weight against the State.” Garza, 2009-NMSC-038, ¶24. “‘Closelyrelated to the length of delay is the reason the government assigns to justify the delay.’ ‘The reasons for aperiod of the delay may either heighten or temper the prejudice to the defendant caused by the length of thedelay.’ Barker identified three types of delay, indicating that ‘different weights should be assigned todifferent reasons’ for the delay. First, Barker held that ‘[a] deliberate attempt to delay the trial in order tohamper the defense should be weighted heavily against the government.’” Garza, 2009-NMSC-038, ¶25. (Internal citations omitted). “Second, Barker distinguished intentional delay from negligent or administrativedelay, and held that ‘[a] more neutral reason such as negligence of overcrowded courts should be weightedless heavily but nevertheless should be considered since the ultimate responsibility for such circumstancesmust rest with the government rather than with the defendant.’” Garza, 2009-NMSC-038, ¶26. (Internalcitations omitted). “The degree of weight we assign against the State for negligent delay is closely relatedto the length of delay: ‘[O]ur toleration of such negligence varies inversely with its protractedness, and itsconsequent threat to the fairness of the accused’s trial.’ Finally, ‘a valid reason, such as a missing witness,should serve to justify appropriate delay.’ Accordingly, we balance the reasonableness of the manner inwhich the State has moved a case toward trial ‘against the costs of going forward with a trial whose probativeaccuracy the passage of time has begun by degrees to throw into question.’” Garza, 2009-NMSC-038, ¶¶26-27. (Internal citations omitted). “...[T]he defendant’s assertion of or failure to assert his right to a speedytrial is one of the factors to be considered in an inquiry into the deprivation of the right.’ This factor isclosely related to the other Barker factors, because ‘[t]he strength of [the defendant’s] efforts will be affectedby the length of delay, to some extent by the reason for the delay, and most particularly by the personalprejudice, which is not always readily identifiable, that [the defendant] experiences.’ Generally, we assessthe timing of the defendant’s assertion and the manner in which the right was asserted. Thus, we accordweight to the ‘frequency and force’ of the defendant’s objections to the delay. We also analyze thedefendant’s actions with regard to the delay.” Garza, 2009-NMSC-038, ¶¶31-32. (Internal citationsomitted). “It is necessary, therefore, to closely analyze the circumstances of each case.” Garza, 2009-NMSC-038, ¶33. “‘The United States Supreme Court has identified three interests under which we analyzeprejudice to the defendant: (I) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and

117

concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’ As to the first twotypes of prejudice, ‘[s]ome degree of oppression and anxiety is inherent for ever[y] defendant who is jailedwhile awaiting trial.’ Therefore, we weigh this factor in the defendant’s favor only where the pretrialincarceration or the anxiety suffered is undue. The oppressive nature of the pretrial incarceration dependson the length of incarceration, whether the defendant obtained release prior to trial, and what prejudicialeffects the defendant has shown as a result of the incarceration.” Garza, 2009-NMSC-038, ¶35. (Internalcitations omitted). “The third type of prejudice is the ‘most serious.’ Again, however, it is necessary for adefendant to substantiate this type of prejudice.” Garza, 2009-NMSC-038, ¶36. “If the defendant assertsthat the delay caused the unavailability of a witness and impaired the defense, the defendant must ‘state[ ]with particularity what exculpatory testimony would have been offered,’ and [t]he defendant must alsopresent evidence that the delay caused the witness’s unavailability.’” Garza, 2009-NMSC-038, ¶36. (Internal citations omitted). “We similarly hold that generally a defendant must show particularizedprejudice of the kind against which the speedy trial right is intended to protect. However, if the length ofdelay and the reasons for the delay weigh heavily in defendant’s favor and defendant has asserted his rightand not acquiesced to the delay, then the defendant need not show prejudice for a court to conclude thatdefendant’s right has been violated.” Garza, 2009-NMSC-038, ¶39. “We hold, therefore, that one year isthe appropriate guideline for determining when the length of delay for a simple case may be consideredpresumptively prejudicial.” Garza, 2009-NMSC-038, ¶47. “Accordingly, we also shift the guidelines forcases of greater complexity: Fifteen months may be presumptively prejudicial for intermediate cases andeighteen months may be presumptively prejudicial for complex cases. We emphasize that these guidelinesshould not be construed as bright-line tests. Rather, they are meant to guide the district courts’ determinationof ‘presumptively prejudicial’ delay. The situation may arise where a defendant alerts the district court tothe possibility of prejudice to his defense and the need for increased speed in bringing the case to trial, i.e.,the impending death of a key witness. Where that possibility is realized and the defendant suffers actualprejudice as a result of delay, these guidelines will not preclude the defendant from bringing a motion fora speedy trial violation though the delay may be less than one year. However, it will then be up to the districtcourt to decide whether the delay was sufficient to require further inquiry into the speedy trial analysis.” Garza, 2009-NMSC-038, ¶¶48-49. THESE GUIDELINES ONLY APPLY TO SPEEDY TRIAL MOTIONSINITIATED ON OR AFTER AUGUST 13, 2007.

FACTS: Defendant arrested in June 2006 and criminal complaint filed in magistrate court. Case stayed in magistrate court for four months, and then State refiled in districtcourt in Nov. 2006. Defendant’s first and only speedy trial demand was part of hiswaiver of arraignment and plea of not guilty in Nov. 2006. Defendant filed motionto dismiss claiming a speedy trial violation in April 2007. Motion denied by trialcourt. Court held that the delay of ten months and six days was sufficient to triggerinquiry into Barker factors. Court found that the length of delay was notextraordinary and did not weigh heavily in Defendant’s favor. The Court found thatthe delay was negligent, which weighed only slightly in Defendant’s favor. Courtfound that the demand for speedy trial was sufficient to assert the right. Theassertion wasn’t especially vigorous or mitigated by apparent acquiescence to thedelay on Defendant’s part, so it weighed slightly in Defendant’s favor. Court foundthat Defendant made no showing of prejudice that was cognizable under Barkerbecause he only spent two hours in jail and was released with normal bondrestrictions. Because Defendant failed to show prejudice and the other factorsdidn’t weigh heavily in Defendant’s favor, the Court couldn’t conclude that therehad been a speedy trial violation.

118

State v. Spearman, 2012-NMSC-023. “Speedy trial analysis under the United States Constitution requiresa balancing and weighing of several factors, including the length of delay, the cause of the delay, timelyassertion of the right, and prejudice to the accused. When, as here, one of those factors–in this case the causeof the delay–weighs heavily against the State based on its own dilatory and deceptive conduct in prosecutingthe case, the district court justly may dismiss the charges even though the remaining factors favor the accusedonly slightly.” Spearman, 2012-NMSC-023, ¶1. “A difficulty arises, however, when determining howheavily to weigh the delay against the State. When weighing ‘the length of delay, we consider ‘the extentto which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.’” Spearman, 2012-NMSC-023, ¶23. “We never intended Garza to hold that the second prong of the prejudiceanalysis–anxiety and concern caused by undue delay–is no longer relevant.” Spearman, 2012-NMSC-023,¶36. “In addition, an accused does not need to be incarcerated to suffer some of the same hardships andprejudice the right to a speedy trial was meant to prevent. In Barker, the United States Supreme Court statedthe reasons that pretrial incarceration can be prejudicial, beyond the loss of liberty that necessarilyaccompanies it. ‘It often means loss of a job; it disrupts family life; and it enforces idleness...The time spentin jail is simply dead time.’ The Court also made clear that an accused does not need to be in jail to sufferprejudice, stating ‘even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraintson his liberty and by living under a cloud of anxiety, suspicion, and often hostility.’” Spearman, 2012-NMSC-023, ¶36. (Internal citations omitted).

FACTS: Defendant charged with practicing architecture without a license, fraud, andforgery. 19 days after being charged, defense counsel filed a demand for speedytrial. Case set for trial. State sought continuance of first trial setting because awitness was out of town and unable to attend trial. Defense filed a motion toexclude and a hearing was set. State moved to continue hearing because counselwould be out of the country. Case reset for trial. 7 days before the second trialdate, State moved to continue again stating that it needed more time to respond toDefendant’s motions. Case set for trial a third time. State filed another motion tocontinue indicating that the State’s key material witness would be out of the stateon the trial date. Court granted motion to continue, and case was reset for trial. 6days before the fourth trial setting, the State moved to continue. According to theState, the case had been reassigned to a new prosecutor who needed more time toprepare for trial. Defendant filed a motion to dismiss for speedy trial violation. More than 15 months had passed since the indictment and trial was still more thana month away. Court held that the length of delay weighed against the State. Thereason for the delay weighed heavily against the State because the State wasresponsible for all of the delay. While Defendant didn’t aggressively assert his rightto a speedy trial, he did not acquiesce to the delay, and the Court found that thethird factor weighed against the State. Defendant argued that he had lostemployment, had to file for bankruptcy, and move as a result of the case. Courtfound that Defendant suffered some prejudice, but was unable to determine fromthe record if the prejudice was the result of the delay. Court remanded the case andordered an evidentiary hearing to allow Defendant to submit evidence as toprejudice caused by the delay.

119

State v. Serros, 2015-NMSC-_______, (No. 34,637, Nov. 12, 2015). “...[M]erely showing delay in bring anaccused’s case to trial is not enough to establish a speedy trial violation; rather, we must scrutinize everyclaimed violation to determine whether the accused has suffered an ‘actual and articulable deprivation’ ofthe right to a speedy trial.” Serros, 2015-NMSC-_______, ¶4. “We weigh [the Barker] factors accordingto the unique circumstances of each case in light of ‘the State and the defendant’s conduct and the harm tothe defendant from the delay.’” Serros, 2015-NMSC-_______, ¶5. “The first factor, the length of delay, hasa dual function: it acts as a triggering mechanism for considering the four Barker factors if the delay crossesthe threshold of being ‘presumptively prejudicial,’ and it is an independent factor to consider in evaluatingwhether a speedy trial violation has occurred.” Serros, 2015-NMSC-_______, ¶22. “...[T]he parties’ faultin causing the delay is irrelevant to the analysis of the first Barker factor. The length of delay is an objectivedetermination that is capable of measurement with some precision, and once established, it colors the restof the speedy trial analysis. A delay that crosses the threshold for presumptive prejudice necessarily weighsin favor of the accused; the only question is, how heavily? A delay that ‘scarcely crosses the ‘bare minimumneeded to trigger judicial examination of the claim’’ is of little help to a defendant claiming a speedy trialviolation. Conversely, an extraordinary delay, like the delay in this case, weighs heavily in favor of adefendant’s speedy trial claim, bearing in mind that no single factor is dispositive of whether a violation hasoccurred.” Serros, 2015-NMSC-_______, ¶26. (Internal citations omitted). “The remaining Barker factorsleave ample room to consider whether the other circumstances in the case, including the fault of the parties,outweigh the length of the delay.” Serros, 2015-NMSC-_______, ¶27. “We previously have recognizedthree types of delay that may be attributed to the State and weighted against it at varying levels. First, ‘‘[a]deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against thegovernment.’ ‘Second, ‘negligent or administrative delay...‘should be weighted less heavily but neverthelessshould be considered since the ultimate responsibility for such circumstances must rest with the governmentrather than with the defendant.’’ As the length of delay increases, negligent or administrative delay weighsmore heavily against the State. And third, ‘appropriate delay,’ justified for ‘a valid reason, such as a missingwitness,’ is neutral and does not weigh against the State. The U.S. Supreme Court also has recognized afourth type of delay that this Court has not yet considered, delay ‘caused by the defense,’ which weighsagainst the defendant.” Serros, 2015-NMSC-_______, ¶29. (Internal citations omitted). “Accordingly, weadopt and extend Stock’s two-part approach for determining whether the reasons for the delay in such a caseshould weigh against a defendant or the State. We first consider whether Defendant is to blame for thedelays in this case because he personally caused or acquiesced to the delay in his case. If not, then weconsider whether the State has met its obligation to bring Defendant’s case to trial.” Serros, 2015-NMSC-_______, ¶43. “We are mindful that the actions of defense counsel ordinarily are attributable to thedefendant. But when the evidence found by the district court shows that both defense counsel were actingcontrary to Defendant’s wishes when they agreed to the State’s requests to delay trial, we will not weigh theiractions against Defendant.” Serros, 2015-NMSC-_______, ¶46. “We acknowledge the crucial role that pleanegotiations play in our criminal justice system, but it is well settled that the possibility of a plea agreementdoes not relieve the State of its duty to pursue a timely disposition of the case.” Serros, 2015-NMSC-_______, ¶69. “The third interest, [to limit the possibility that the defense will be impaired], which Barkercharacterized as ‘the most serious,’ protects the defendant’s ability to assert an adequate defense at trial fromthe prejudicial effect of the passage of time, such as the death or disappearance of a witness or the loss ofmemory. A defendant who claims this type of prejudice must show ‘with particularity what exculpatory[evidence] would have been offered [and] that the delay caused the [evidence’s] unavailability.’” Serros,2015-NMSC-_______, ¶85. (Internal citations omitted). “Stock and this case teach that as the delay mountsin bringing a defendant to trial, the State’s obligation to alert the district court becomes increasingly pressing,especially when the defendant is held in custody awaiting trial. Ideally, the State, the defendant, defensecounsel, and the district court all would be aligned in their efforts to bring the defendant to trial in a timelyfashion.” Serros, 2015-NMSC-_______, ¶95. “We acknowledge that there are times when defense counselmay prefer delay in the best interests of his client. When the client expressly concurs, the delay will continueto be attributed to the accused. But it is the State that is ultimately tasked with bringing the accused to trial

120

in a timely manner. Accordingly, we do not deem it unfair to impose upon the prosecution the burden ofmonitoring the progress of the case, and at some point, alerting the trial court of potential speedy trialconsequences.” Serros, 2015-NMSC-_______, ¶96. “That does not relieve the remaining participants fromtheir own obligations to protect the constitutional rights of the accused. But it is uniquely the duty of theprosecution–as the State’s representative–to ensure that the accused is prosecuted in a manner consistent withthe Constitution.” Serros, 2015-NMSC-_______, ¶97.

121

Miscellaneous

Amending Criminal Complaint or Indictment

Rule 7-303(A) NMRA. (Metropolitan Court). “A complaint or citation shall not be deemed invalid, norshall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected, becauseof any defect, error, omission, imperfection or repugnancy therein which does not prejudice the substantialrights of the defendant upon the merits. The court may at any time prior to a verdict cause the complaint orcitation to be amended with respect to any such defect, error, omission, imperfection or repugnancy if noadditional or different offense is charged and if substantial rights of the defendant are not prejudiced.”

Rule 5-204 (A) NMRA. (District Court). “A complaint, indictment or information shall not be deemedinvalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manneraffected, because of any defect, error, omission, imperfection or repugnancy therein which does not prejudicethe substantial rights of the defendant upon the merits. The court may at any time prior to a verdict causethe complaint, indictment, or information to be amended with respect to any such defect, error, omission orrepugnancy if no additional or different offense is charged and if substantial rights of the defendant are notprejudiced.”

Arguments in Briefs

State ex rel. CYFD v. Arthur C., 2011-NMCA-022, 149 N.M. 472. “We assume where arguments in briefsare unsupported by cited authority, counsel after diligent search, was unable to find any supporting authority. We therefore will not do this research for counsel.” Arthur C., 2011-NMCA-022, ¶46.

Criminal Complaint

State v. Raley, 1974-NMCA-024, 86 N.M. 190. “We cannot approve the use of initials instead of words ina criminal complaint to identify the offense. It can lead to absurdity, uncertainty, vagueness, unidentifiabilityand mistake. Due process of law requires a specific description of the offense for which a defendant is tobe put on trial.” Raley, 1974-NMCA-024, 192. The initials “DWI” on a criminal complaint will not sufficeas the name of the charge.

State v. Mitchell, 2010-NMCA-059, 148 N.M. 842. “Rule 7-210(J) NMRA defines ‘signed’ as including ‘anoriginal signature, a copy of an original signature, a computer generated signature or any other signatureotherwise authorized by law.’ Thus, anything that requires a signature under the rules of procedure formetropolitan court can be signed by a computer-generated signature. A criminal complaint that commencesan action in metropolitan court consists of a sworn statement containing the facts, the common name of theoffense charged, and the specific section number of the statute or ordinance that contains the offense. Thecomplaint in this case complied with these requirements.” Mitchell, 2010-NMCA-059, ¶2. “In our notice,we indicated that there did not appear to be a dispute that the signature was the arresting officer’s computer-generated signature. Further, we indicated that we did not see how Defendant was prejudiced by theelectronic signature.” Mitchell, 2010-NMCA-059, ¶4.

122

Designating Officer to Sit at Counsel Table

Rule 11-615(B) NMRA. “At a party’s request, the court must order witnesses excluded so that they cannothear other witnesses’ testimony, or the court may do so on its own. This rule does not authorize excluding...an officer or employee of a party that is not a natural person, after being designated as the party’srepresentative by its attorney...”

State v. Chavez, 1983-NMCA-120, 100 N.M. 730. “Upon request for exclusion of witnesses, the partyseeking to have witnesses remain has the burden of proving to the court that an exception should be made.” Chavez, 1983-NMCA-120, 732. “Allowing counsel for the State to have an investigative agent at counseltable throughout the trial even though the agent is or may be a witness is an exception to the rule ofexclusion. The presence of an investigative agent during trial may be important to the State when the caseis complex or involves specialized subject matter. When an exception is granted to the rule of exclusion thetrial court, under [Rule 11-615 NMRA], can order that the police officer be called first in order to avoidgiving the prosecutor an unfair advantage or the appearance that the State is being favored.” Chavez, 1983-NMCA-120, 732. (Internal citations omitted).

Drug Charges

State v. Gerald B., 2006-NMCA-022, 139 N.M. 113. “...[E]xpert testimony is not required to identify illegaldrugs. ‘Lay opinion concerning the identification of marijuana is admissible, and the qualifications of thewitness go to weight and not admissibility.’ Officer Worth’s many years of experience in narcotics and druginvestigations qualified him to give his opinion that the substance was marijuana. The jury was entitled toconsider the officer’s testimony and give it whatever weight the jury deemed appropriate.” Gerald B., 2006-NMCA-022, ¶23.

State v. Rubio, 1990-NMCA-090, 110 N.M. 605. “Lay opinion concerning the identification of marijuanais admissible, and the qualifications of the witness go to the weight and not admissibility.” Rubio, 1990-NMCA-090, 607. “The identity of a controlled substance may further be established by persons having layexperience with the drug through prior use, trading, or law enforcement.” Rubio, 1990-NMCA-090, 607.

Exclusion of Witnesses

Rule 11-615 NMRA. “At a party’s request, the court must order witnesses excluded so that they cannot hearother witnesses’ testimony, or the court may do so on its own. This rule does not authorize excludingA. a party who is a natural person,B. an officer or employee of a party that is not a natural person, after being designated as the party’srepresentative by its attorney,C. a person whose presence a party shows to be essential to presenting the party’s claim or defense, orD. a person authorized by law to be present.”

Identification of Defendant

State v. Hutchinson, 1983-NMSC-029, 99 N.M. 616. “A witness does not have to physically point out adefendant in a courtroom, because identification by name is enough. This is true so long as the evidence issufficient to permit the inference that the person on trial was the person who committed the crime.” Hutchinson, 1983-NMSC-029, ¶30. (Internal citations omitted).

123

Jeopardy

State v. Eden, 1989-NMCA-038, 108 N.M. 737. “Jeopardy attaches only when the jury is impaneled, or, ina bench trial, when the state presents some evidence.” Eden, 1989-NMCA-038, 743.

State v. Vaughn, 2005-NMCA-076, 137 N.M. 674. “Jeopardy begins or attaches when the trier of fact isempowered to decide guilt or innocence and jeopardy terminates upon an acquittal, a conviction, or withcertain types of mistrial.” Vaughn, 2005-NMCA-076, ¶8.

State v. Yazzie, 2010-NMCA-028, 147 N.M. 768. “The United States Constitution protects an accused frombeing tried twice for the same offense. This protection attaches, in a jury trial, when the jury is sworn. Thus,once a jury has been selected and sworn, a criminal defendant has a vested right to have her guilt orinnocence decided by that jury.” Yazzie, 2010-NMCA-028, ¶9.

State v. Gonzales, 2013-NMSC-016. “It is settled law that if a conviction is overturned for insufficientevidence, the reversal is treated as an acquittal for double jeopardy purposes.” Gonzales, 2013-NMSC-016,¶17. “In addition, an acquittal of a greater offense prevents retrial of lesser included offenses that could havebeen, but were not submitted to the jury.” Gonzales, 2013-NMSC-016, ¶18.

State v. Angel, 2002-NMSC-025, 132 N.M. 501. “Three situations implicate double jeopardy protections:a second prosecution for the same offense after acquittal; a second prosecution for the same offense afterconviction; and multiple punishments for the same offense.” Angel, 2002-NMSC-025, ¶7. “In order tosuccessfully claim double jeopardy, a former jeopardy must have occurred-there must have been a previousproceeding in which jeopardy attached.” Angel, 2002-NMSC-025, ¶7. “It is only after a defendant is deemedto have been put in former jeopardy that any subsequent prosecution of the defendant brings the guaranteeagainst double jeopardy into plea.” Angel, 2002-NMSC-025, ¶8.

Joinder

Rule 5-203(A) NMRA. “Two or more offenses shall be joined in one complaint, indictment or informationwith each offense stated in a separate count, if the offenses, whether felonies or misdemeanors or both:(1) are of the same or similar character, even if not part of a single scheme or plan; or(2) are based on the same conduct or on a series of acts either connected together or constituting parts of asingle scheme or plan.”

State v. Gonzales, 2013-NMSC-016. “Until today, we have not considered the proper remedy when theprosecution fails to join charges under Rule 5-203(A). While the rule does not specify a remedy, we clearlyintended that the rule have force...A bar against a subsequent prosecution on charges that should have beenjoined under Rule 5-203(A) is the only effective remedy to enforce the mandatory nature of the rule.” Gonzales, 2013-NMSC-016, ¶30. “Thus, we hold that a failure to join offenses under Rule 5-203(A) barspiecemeal prosecution in a subsequent trial.” Gonzales, 2013-NMSC-016, ¶31.

State v. Aragon, 2016-NMCA-_______, (No. 34,653, Jul. 12, 2016) “We conclude that nothing in thelanguage of Rule 5-203(A) required compulsory joinder in this case.” Aragon, 2016-NMCA-_______, ¶8. “We see no reason why the State could not proceed with and resolve the traffic citation in magistrate courtwith Defendant’s no contest plea. Nor do we see any reason why later, after determining that the DWIshould not be filed as a felony, the State could not then file a misdemeanor DWI charge in magistrate court. Further, the speeding offense played no part in the per se 0.08 charge and conviction. Thus, the offenses arenot of the same or similar character, nor are the offenses based on the same conduct...A defendant should

124

not be allowed to bar his later prosecution simply by rushing to plead to a considerably lesser traffic offense.” Aragon, 2016-NMCA-_______, ¶9.

FACTS: Defendant arrested for speeding and felony DWI. Defendant arraigned on DWIcharge in Magistrate Court, and the State dismissed charge shortly after. Speedingcharge filed in separate cause in Magistrate Court after DWI dismissed. Defendantpleaded no contest to speeding charge. 3 months after Defendant pleaded tospeeding charge, State determined DWI was only a second offense and refiled DWIin original Magistrate Court case. Court held that nothing in Rule 5-203(A)required compulsory joinder, and State could proceed on charges separately.

Judicial Notice

Rule 11-201(B) NMRA. “The court may judicially notice a fact that is not subject to reasonable disputebecause it (1) is generally known within the court’s territorial jurisdiction, (2) can be accurately and readilydetermined from sources whose accuracy cannot reasonably be questioned, or (3) notice is provided bystatute.”

Rule 11-201(C) NMRA. “The court (1) may take judicial notice on its own, or (2) must take judicial noticeif a party requests it and the court is supplied with the necessary information.”

Rule 11-201(D) NMRA. “The court may take judicial notice at any state of the proceeding.”

Rule 11-201(E) NMRA. “On timely request, a party is entitled to be heard on the propriety of taking judicialnotice and the nature of the facts to be noticed. If the court takes judicial notice before notifying a party, theparty, on request, is still entitled to be heard.”

Rule 11-201(F) NMRA. “In a criminal case, the court must instruct the jury that it may or may not acceptthe noticed fact as conclusive.”

City of Aztec v. Gurule, 2010-NMSC-006. “When a court takes judicial notice of a fact, it must be done onthe record. There are two main reasons trial courts should make a clear record when taking judicial noticeof a fact: (1) to facilitate appellate review, and (2) to provide notice, as required by due process, to theopposing party.” Gurule, 2010-NMSC-006, ¶7.

Jury Selection

Bustos v. City of Clovis, 2016-NMCA-018. “...[R]acial discrimination in selecting a jury in a criminal caseviolates the Equal Protection Clause of the United States Constitution. Racial discrimination not onlyviolates the right of the defendant, it also unconstitutionally discriminates against the excluded juror, andundermines public confidence in the fairness of our system of justice...Thus, when even a single juror isstricken for racial reasons, reversible error is committed regardless of whether the jury that is chosen isactually fair and unbiased or retains its ‘representative’ character, because equal protection has beenviolated.” Bustos, 2016-NMCA-018, ¶23. (Internal citations omitted). “First, the opponent of a peremptorychallenge has the burden to establish a prima facie case ‘indicating that the peremptory challenge has beenexercised in a discriminatory way[.]’ To establish a prima facie case the challenging party must show that‘(1) a peremptory challenge was used to remove a member of a protected group from the jury panel, and (2)the facts and other related circumstances raise an inference that the individual was excluded solely on thebasis of his or her membership in a protected group.’” Bustos, 2016-NMCA-018, ¶26. (Internal citationsomitted). “Second, if a prima facie showing is made, the burden then shifts to the proponent of the challengeto come forward with a race or gender-neutral explanation for the challenge. This does not require a

125

persuasive or even plausible explanation. While a mere denial of a discriminatory motive is not sufficient,as long as a discriminatory intent is not inherent in the explanation, the reason offered is deemed to beneutral. If the explanation offered is not neutral, then a finding of purposeful discrimination may be madewithout any further showing by the opponent to the challenge.” Bustos, 2016-NMCA-018, ¶27. (Internalcitations omitted). “Third, if a neutral explanation is tendered, the district court then determines whether theopponent of the strike has proved purposeful discrimination. In this regard, the burden of persuasion ondiscrimination never shifts from the opponent of the strike.” Bustos, 2016-NMCA-018, ¶28. (Internalcitations omitted). “In making its factual findings, the district court has a responsibility to ‘(1) evaluate thesincerity of both parties, (2) rely on its own observations of the challenged jurors, and (3) draw on itsexperience in supervising voir dire.’” Bustos, 2016-NMCA-018, ¶29.

Jury Trial Eligibility

District Court

Rule 5-605(A) NMRA. “Criminal cases required to be tried by jury shall so be tried unless the defendantwaives a jury trial with the approval of the court and the consent of the state.”

Metropolitan Court

NMSA 1978, §34-8A-5(B). “With respect to criminal actions: (1) if the penalty does not exceed ninety days’imprisonment or if the penalty is a fine or forfeiture of a license, the action shall be tried by the judge withouta jury; (2) if the penalty exceeds ninety days’ but does not exceed six months’ imprisonment, either partyto the action may demand a trial by jury. The demand shall be made orally or in writing to the court at orbefore the time of entering a plea or in writing to the court within ten days after the time of entering a plea. If demand is not made pursuant to this subsection, trial by jury is deemed waived; or (3) if the penaltyexceeds six months’ imprisonment, the case shall be tried by jury unless the defendant waives a jury trialwith the approval of the court and the consent of the state.”

Rule 7-602(A) NMRA. Petty Misdemeanor Offense. “When authorized by law, either party to the actionmay demand a trial by jury. The demand shall be made: (1) orally or in writing to the court at or before thetime of entering a plea; or (2) in writing to the court within ten (10) days after the time of entering a plea. If demand is not made as provided in this paragraph, trial by jury is deemed waived.”

Rule 7-602(B) NMRA. Misdemeanor Offense. “If the offense is a misdemeanor or other offense orcombination of offenses where the potential or aggregate penalty includes imprisonment in excess of six (6)months, the case shall be tried by jury unless the defendant waives a jury trial with the approval of the courtand the consent of the state.”

Magistrate Court

Rule 6-602(A) NMRA. “If the offense charged is a petty misdemeanor or an offense punishable by no morethan six (6) months in jail, either party to the action may demand a trial by jury. The demand shall be made:(1) orally or in writing to the court at or before the time of entering a plea; or (2) in writing to the courtwithin ten (10) days after the time of entering a plea. If demand is not made as provided in this paragraph,trial by jury is deemed waived.”

Rule 6-602(B) NMRA. “If the offense is a misdemeanor or other offense or combination of offenses wherethe potential or aggregate penalty includes imprisonment in excess of six (6) months, the case shall be triedby jury unless the defendant waives a jury trial with the approval of the court and the consent of the state.”

126

State v. Grace, 1999-NMCA-148, 128 N.M. 379. “The pertinent inquiry...is whether Defendant faced thepossibility of more than six months’ confinement. The relevant time of inquiry is the period immediatelybefore trial.” Grace, 1999-NMCA-148, ¶9.

Mistrial

State v. Yazzie, 2010-NMCA-028, 147 N.M. 768. “‘[T]he power to grant a mistrial ought to be usedsparingly and only with the utmost caution, under urgent circumstances, and for very plain and obviouscauses.’” Yazzie, 2010-NMCA-028, ¶9 (citing from Cardine v. Commonwealth, 283 S.W.3d 641, 647 (Ky.2009)). “When a mistrial is declared over a defendant’s objection and the jury is discharged, the doublejeopardy protection generally prohibits a defendant from being retried for the same offense ‘unless themistrial was found to have been declared for reasons of manifest necessity.’ ‘[M]anifest necessity must bethe basis’ wherever the mistrial is a result of a sua sponte judicial decision.” Yazzie, 2010-NMCA-028, ¶10. “To say that a mistrial is required because of ‘manifest necessity’ means that in order to preserve the endsof public justice, it is clear and evident that terminating the trial is necessary because of somethingextraordinary which occurred in trial.” Yazzie, 2010-NMCA-028, ¶11. Two requirements that must besatisfied on appeal: “First, the circumstances necessitating the mistrial must be extraordinary ones, sufficientto override the defendant’s double jeopardy interests. Second, the trial judge must determine whether analternative measure–less drastic than a mistrial–can alleviate the problem so that the trial continue to animpartial verdict.” Yazzie, 2010-NMCA-028, ¶12.

FACTS: Victim asked if he had pleaded guilty to battering Defendant. Before Victimanswered and without considering any alternative, the trial court declared a mistrialsua sponte. Defendant objected. Court held that there was no manifest necessityto declare a mistrial.

State v. Messier, 1984-NMCA-085, 101 N.M. 582. “No mechanical rule exists for determining the existenceof manifest necessity. The standard involves a careful weighing of defendant’s right to have his trialcompleted and the public’s interest in a fair trial and just judgment. Determination of the propriety ofmanifest necessity must be made under the particular facts of each individual case.” Messier, 1984-NMCA-085, 584-585. “Before a mistrial is granted, other reasonable alternatives must be considered.” Messier,1984-NMCA-085, 585.

State v. O’Kelley, 1991-NMCA-049, 113 N.M. 25. “It is well established under New Mexico case law thata retrial after a mistrial caused by a hung jury does not violate the constitutional prohibition on doublejeopardy. In such circumstances, the further proceeding has been viewed as a continuation of the prior one.” O’Kelley, 1991-NMCA-049, 27-28.

Motions to Suppress

City of Santa Fe v. Marquez, 2012-NMSC-031. “...[We] hold, prospectively, that Rule 5-212(C) requiresthat motions to suppress be filed before trial and that the district courts must adjudicate suppression issuesbefore trial, absent good cause.” Marquez, 2012-NMSC-031, ¶28.

127

Open Container

State v. Nevarez, 2010-NMCA-049, 148 N.M. 820. “...[W]e disagree with the State that Section 66-8-138(B)is violated by mere constructive possession of an open container. Defendant could not have been properlyconvicted based on a finding than on open container was merely in the vehicle, even if the evidence wasotherwise sufficient to establish knowledge of and control over the open container. However, this holdingshould not be construed under Section 68-8-138(B) to mean that, as a matter of law, a defendant may beconvicted only when observed with an open container in hand or perhaps within an article of clothing.” Nevarez, 2010-NMCA-049, ¶¶20-21. “Therefore, we hold that Section 66-8-138(B) requires more than factsmerely showing that an open container was located within a defendant’s vehicle, but does not go so far asrequiring that a defendant must be observed in actual physical possession of an open container.” Nevarez,2010-NMCA-049, ¶22.

Parties to a Crime

NMSA 1978, §66-8-120. “Every person who commits, attempts to commit, conspires to commit or aid orabets in the commission of any act declared herein to be a crime, whether individually or in connection withone or more persons or as a principal, agent, or accessory, shall be guilty of such offense, and every personwho falsely, fraudulently, forcibly or willfully induces, causes, coerces, requires, permits or directs anotherto violate any provision of the Motor Vehicle Code or any other law of this state pertaining to motor vehiclesis likewise guilty of such offense.”

State v. Marquez, 2010-NMCA-064, 148 N.M. 511. Defendant was passenger in vehicle in which driver(Leo Lucero) was involved in an accident in which two people were killed and five people injured. Defendant charged with two counts of homicide by vehicle and five counts of great bodily injury underNMSA 1978, §66-8-120. “For Defendant to be convicted of aiding and abetting homicide or great bodilyharm by vehicle, it would be necessary for the State to demonstrate that Defendant encouraged and sharedthe intent of conscious wrongdoing with Lucero to the extent that it escalated to a partnership in theenterprise.” Marquez, 2010-NMCA-064, 13. (Court noted that the inquiry would be different for DWI [sincehomicide or great bodily injury by vehicle is NOT a strict liability crime and requires mens rea].) Courtconcluded that Defendant’s presence in the vehicle, his purchase of additional alcohol, his statements afterthe accident, his partnership before the accident, his knowledge of Lucero’s intoxication, and Lucero’sdriving following Defendant’s encouragement were all factors of the shared intent of conscious wrongdoing.

State v. Lovato, 2011-NMCA-065, 150 N.M. 39. Court concluded that NMSA 1978, §66-8-120 providedfair notice that the conduct Defendant engaged in could expose him to criminal prosecution. Defendantcharged with one count of homicide by vehicle and one count of accident involving death or personalinjuries. The Defendant and (Carlos Fierro) went out drinking. It was Defendant’s idea to go out. Theyconsumed alcohol and then Fierro drove them to another bar at Defendant’s encouragement. They consumedmore alcohol (purchased by Defendant). After leaving the second bar, Fierro hit a man with his vehicle. Fierro drove away.

128

Pleas

Lafler v. Cooper, 566 U.S. ______, 132 S. Ct. 1376 (2012). “Defendants have a Sixth Amendment right tocounsel, a right that extends to the plea-bargaining process. During plea negotiations, defendants are‘entitled to the effective assistance of competent counsel.’” Id. at 3-4. “If a plea bargain has been offered,a defendant has the right to effective assistance of counsel in considering whether to accept it. If that rightis denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction onmore serious charges or the imposition of a more severe sentence.” Id. at 9.

Missouri v. Frye, 566 U.S. ______, 132 S. Ct. 1399 (2012). “...[C]riminal defendants require effectivecounsel during plea negotiations.” Id. at 8. “This Court now holds that, as a general rule, defense counselhas the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions thatmay be favorable to the accused...When defense counsel allowed the offer to expire without advising thedefendant or allowing him to consider it, defense counsel did not render the effective assistance theConstitution requires.” Id. at 9.

North Carolina v. Alford, 400 U.S. 25 (1970). “Alford Plea” Defendant can plead guilty to a charge inwhich there is strong evidence of guilt and no substantial evidentiary support for the Defendant’s claim ofinnocence. An express admission of guilt is not a constitutional requisite to the imposition of criminalpenalty. An individual accused of a crime may voluntarily, knowingly, and understandingly consent to theimposition of a prison sentence even if he is unwilling or unable to admit his participation in the actsconstituting the crime.

Conditional Plea• Not permitted in CR or TR cases because there is no record• Not permitted in DW or DV cases where the DWI or DV charges were dismissed or are being

dismissed as part of the plea. MUST include the DWI or DV offense.• Must be to DISPOSITIVE issues only. Dispositive = issues which if the defendant prevails, there

is ZERO POSSIBILITY that the State can prevail on the charges to which the defendant pleadedunder any theory.• Examples of dispositive issues:

• Reasonable suspicion• Six-month rule or speedy trial• Identification• Jurisdiction• Proof of service/Notice on a TRO case

• Examples of issues that are NOT dispositive:• Police team/misdemeanor arrest rule• Probable cause (because you only lose evidence after arrest)• Breath card admissibility (because you can convict on impaired to the slightest

degree)• Proof of HHM in a DV (because you can prove lesser included offenses)

• Motions to suppress are dispositive ONLY if you would lose ALL of the evidence needed to proveany element of the offense, if the defendant prevails on appeal.

129

Pre-Sentence Confinement Credit

State v. Calvert, 2003-NMCA-028. “We hold that a trial court must award presentence confinement creditto first-time offenders and has discretionary authority to grant presentence confinement credit, for anyeligible time served, against a mandatory minimum ‘consecutive’ jail term imposed against a defendant whohas been convicted of a second or third offense of driving under the influence (DWI) pursuant to Section 66-8-102.” Calvert, 2003-NMCA-028, ¶2. “...[W]e hold that the Legislature did not intend to limit a trialcourt’s discretion to award presentence confinement credit against a mandatory minimum consecutivesentence imposed for a second or third DWI conviction. To hold otherwise would create inconsistent resultsbetween first, second, and third convictions” Calvert, 2003-NMCA-028, ¶34. “...[W]hen a court sentencesa defendant to a minimum consecutive sentence statutorily stated in terms of hours, it is an error, as a matterof law, to award a full day credit where a defendant has served only a fraction of that time. Defendants maybe given credit but only for the actual time served.” Calvert, 2003-NMCA-028, ¶41.

State v. Nieto, 2013-NMCA-065. “Therefore, we conclude that it was within the discretion of the districtcourt to choose to suspend Defendant’s sentence and to decide the parameters of probation most suitable(within the five-year limit). The pre-sentence confinement credit need not be credited against the probationtime ordered by the district court.”

Preservation of Issues

Kilgore v. Fuji Heavy Indus. Ltd., 2009-NMCA-078, 146 N.M. 698. “The primary purposes for thepreservation rule are: (1) to specifically alert the district court to a claim of error so that any mistake can becorrected at that time, (2) to allow the opposing party a fair opportunity to respond to the claim of error andto show why the district court should rule against that claim, and (3) to create a record sufficient to allow thisCourt to make an informed decision regarding the contested issue.” Kilgore., 2009-NMCA-078, ¶50. (Basedon Rule 11-103 (A) (1) NMRA, “specific grounds” required for objections).

Pre-Trial Dismissal

State v. Gomez, 2003-NMSC-012, 133 N.M. 763. Pretrial dismissal is inappropriate where the State canreasonably assert the existence of additional evidence. Gomez, 2003-NMSC-012, ¶7. (Rule 7-304 NMRA:only “purely legal matters can be dismissed pretrial.” See State v. Foulenfont, 119 N.M. 788, 790)

State v. Martinez, 2011-NMSC-010, 149 N.M. 370. There exists “a strong public policy that favors resolvingcriminal cases on their merits.” Martinez, 2011-NMSC-010, ¶9.

Duran v. Eichwald, 2009-NMSC-030, 146 N.M. 341. “We are troubled by an outcome that precludes a trialon the merits because of a procedural rule violation for which there has not been a clear showing of prejudiceto the accused.” Eichwald, 2009-NMSC-030, ¶9.

130

Pre-Trial Interviews

State v. Harper, 2011-NMSC-044, 150 N.M. 745. “A court has the discretion to impose sanctions for theviolation of a discovery order that results in prejudice to the opposing party...The assessment of sanctions‘depends...upon the extent of the Government’s culpability...weighed against the amount of prejudice to thedefense.’ Extreme sanctions such a dismissal are ‘to be used only in exceptional circumstances.’ ‘The trialcourt...should seek to apply sanctions that affect the evidence at trial and the merits of the case as little aspossible.’ Under this rubric, the mere showing of violation of a discovery order, without a showing ofprejudice, is not grounds for sanctioning a party. Prejudice must be more than speculative; the party claimingprejudice must prove prejudice–it is not enough to simply assert prejudice.” Harper, 2011-NMSC-044, ¶16. “Our case law generally provides that the refusal to comply with a district court’s discovery order only risesto the level of exclusion or dismissal where the State’s conduct is especially culpable, such as whereevidence is unilaterally withheld by the State in bad faith, or all access to the evidence is precluded by Stateintransigence.” Harper, 2011-NMSC-044, ¶17. “‘[T]he focus in determining prejudice is on whether themissing evidence is important and critical to the case.’” Harper, 2011-NMSC-044, ¶19. “Therefore, whendiscovery has been produced late, prejudice does not accrue unless the evidence is material and the disclosureis so late that it undermines the defendant’s preparation for trial.” Harper, 2011-NMSC-044, ¶20. “Therefore, like outright dismissal of a case, the exclusion of witnesses should not be imposed except inextreme cases, and only after an adequate hearing to determine the reasons for the violation and theprejudicial effect on the opposing party.” Harper, 2011-NMSC-044, ¶21.

FACTS: Defense requested interviews. Five months later, defense told court that partiesweren’t prepared for trial because PTIs of Victim and her examining Dr. hadn’tbeen conducted. Court set deadline for PTIs, but never entered order. Statescheduled PTI of Victim, who failed to appear. State never scheduled Dr. PTIbecause payment arrangements hadn’t been made. Court excluded both witnessesand State unable to proceed. NMSC found that exclusion improper. NMSC notedthat State’s conduct wasn’t characterized by degree of culpability that gives rise toan exclusionary sanction. NMSC found that Defendant wasn’t prejudiced by thedelay in scheduling because PTI requested late and defense never filed a motion tocompel or sought subpoenas. Defendant also had a copy of Victim’s Safehouseinterview. With respect to Dr. PTI, NMSC held that State didn’t refuse to complywith court’s order because court on notice that State needed payment for Dr.

Reasonable Doubt Examples in Closing

State v. Montoya, 2016-NMCA-______, (No. 34,143, Aug. 8, 2016). “This Court has recognized that, while‘[f]inal summation is basic to the right of a defendant in a criminal trial to make his defense[, t]his right isnot...without limitation.’ Rather, ‘a trial court has wide discretion in dealing with and controlling counsel’sargument to the jury and, if no abuse of this discretion or prejudice to [the] defendant is evident, error doesnot result.’” Montoya, 2016-NMCA-______, ¶14 (citing from State v. Pace, 1969-NMSC-055, ¶21). (Internal citations omitted). “We further hold that the district court did not abuse its discretion in prohibitingdefense counsel from deviating from the definition of ‘reasonable doubt’ contained in UJI 14-5060...OurSupreme Court has held that ‘UJI 14-5060 adequately expresses [the] definition [of ‘beyond a reasonabledoubt’] and is to be used in all jury trials, unadorned by any added, illustrative language.’” Montoya, 2016-NMCA-______, ¶14 (citing from State v. Garcia, 2005-NMSC-017, ¶10).

131

Search Warrants

State v. Boyse, 2013-NMSC-024, ¶1. “Thus, we hold as a matter of law that the New Mexico Constitutionallows for alternative methods for requesting and approving search warrants, including by telephone.” Boyse,2013-NMSC-024, ¶1. “Based on the plain meaning of the term, we conclude that a ‘showing’ of probablecause required under Article II, Section 10 is not limited to a writing that the issuing judge sees rather thanhears or ascertains by other means. Rather, the plain meaning of ‘showing’ as used in Article II, Section 10is a presentation or statement of facts or evidence that may be accomplished through visual, audible or othersensory means.” Boyse, 2013-NMSC-024, ¶14.

Statute of Limitations

NMSA 1978, §30-1-8. “A person shall not be prosecuted, tried or punished in any court of this state unlessthe indictment is found or information or complaint is filed within the time as provided:(A) for a second degree felony, within six years from the time the crime was committed;(B) for a third or fourth degree felony, within five years from the time the crime was committed;(C) for a misdemeanor, within two years from the time the crime was committed;(D) for a petty misdemeanor, within one year from the time the crime was committed...(H) for any crime not contained in the Criminal Code or where a limitation is not otherwise provided for,within three years from the time the crime was committed...”

State v. Trevizo, 2011-NMCA-069. “...[W]e conclude that the Legislature intended for [DWI (first offense)and reckless driving] to be treated as petty misdemeanors. We further conclude that, pursuant to Section 30-1-8(D), a one-year statute of limitations applies.” Trevizo, 2011-NMCA-069, ¶19.

Uniform Jury Instructions

General Use Note: “Except for grand jury proceedings, when a uniform instruction is provided for theelements of a crime, a defense or a general explanatory instruction on evidence or trial procedure, theuniform instruction should be used without substantive modification or substitution. No instruction shall begiven on a subject which a use note directs that no instruction be given. To avoid fundamental error, it isthe duty of the court to properly instruct the jury on the law. Thus, an elements instruction may only bealtered when the alteration is adequately supported by binding precedent or the unique circumstances of aparticular case, and where the alteration is necessary in order to accurately convey the law to the jury. If thecourt determines that a uniform instruction must be altered, the reasons for the alteration must be stated inthe record. For a crime for which no uniform instruction on essential elements is provided, an appropriateinstruction stating the essential elements must be drafted. However, all other applicable uniform instructionsmust also be given. For other subject matters not covered by a uniform instruction, the court may give aninstruction that is brief, impartial, free from hypothesized facts, and otherwise similar in style to theseinstructions.”

Cowan v. Powell, 1993-NMCA-075. “Additionally, since the uniform jury instructions were adopted, trialcourts must given them without substitution or substantive modification.” Cowan, 1993-NMCA-075, ¶7.

State v. Cabezuela, 2011-NMSC-041. “[Jury instructions] are to be read and considered as a whole and whenso considered they are proper if they fairly and accurately state the applicable law.” Cabezuela, 2011-NMSC-041, ¶21. (Internal citations omitted).

132

Witness Commenting on Truthfulness of Another Witness

State v. Soto, 2007-NMCA-077, 142 N.M. 32. “...[T]his Court established a ‘strict prohibition upon askingthe defendant if another witness is ‘mistaken’ or ‘lying.’’ Such improper questioning is particularlyprejudicial when the witness is asked to comment on the truthfulness of a law enforcement officer’stestimony. The reasons behind this rule are several. First, the defendant’s opinion regarding the truthfulnessof another witness is irrelevant. In addition, this type of questioning can become a misleading argument tothe jury that either the defendant or the witnesses are lying. Moreover, asking a witness to comment on theveracity of another witness encroaches on the jury’s role to determine the credibility of witnesses. Further,our Supreme Court has expressed particular concern that these types of questions distort the burden of proofby leaving the jury with the unfair impression that in order to acquit, they must determine that lawenforcement officers are lying if their testimony is contrary to that of the defendant. Finally, the Courtrecognized...that ‘‘were they lying’ questions’ are not compatible with a prosecutor’s duties because unfairlyquestioning a defendant to make him look bad in front of the jury is inconsistent with the prosecutor’s dutiesto seek justice and ensure a fair trial.” Soto, 2007-NMCA-077, ¶15. “Generally, the rule does not precludea good-faith attempt to clarify a defendant’s testimony by asking about apparent inconsistencies in regardto testimony of other witnesses. Nor does the rule prohibit questioning designed to elicit an explanation forany such inconsistencies.” Soto, 2007-NMCA-077, ¶16.

133