STATE V. HOBBS, 2016-NMCA-022,
366 P.3d 304
STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
TARRAH HOBBS, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2016-NMCA-022, 366 P.3d 304
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Briana H. Zamora, District Judge.
Certiorari Denied, February 15, 2016,
No. S-1-SC-35708. Released for Publication March 8, 2016.
Hector H. Balderas, Attorney General,
Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque,
NM, for Appellee.
Ben A. Ortega, Albuquerque, NM, for
Appellant.
New Mexico District Attorneys
Association, Robert P. Tedrow, Kari E. Brandenburg, District Attorney, Michelle
S. Garcia, Assistant District Attorney, Albuquerque, NM, for Amicus Curiae.
LINDA M. VANZI, Judge. WE CONCUR: JAMES J.
WECHSLER, Judge, TIMOTHY L. GARCIA, Judge.
{1} The Legislature has
delegated to the Scientific Laboratory Division of the Department of Health
(SLD) administrative authority over blood and breath tests administered to
persons suspected of driving while under the influence of intoxicants.
See
NMSA 1978, §
24-1-22 (2003). In
State v. Martinez,
2007-NMSC-025,
141
N.M. 713,
160 P.3d 894, our Supreme Court held that “a threshold showing” that
the instrument used to administer a breath alcohol test (BAT) was SLD-certified
at the time of the test is a Rule
11-104(A) NMRA foundational requirement for
admission of the BAT results into evidence.
Martinez,
2007-NMSC-025,
¶¶ 9, 11-12, 23.
Martinez went on to hold that this foundational
requirement was satisfied by the hearsay testimony of the officer who
administered the BAT that he saw a “sticker” on the breathalyzer instrument
indicating that it was SLD-certified at the time of the defendant’s BAT.
Id.
¶ 23. Defendant Tarrah Hobbs contends that, although this foundational
requirement was satisfied in her case, the trial court should not have admitted
her BAT results into evidence because there was no testimony that the officer
who administered her BAT “witnessed documentation from SLD approving” (1) the
gas tank (also referred to as the gas canister) that was attached to the
breathalyzer instrument and (2) the gas reference standard inside the tank,
“much less that such documentation was present at the time the test was taken.”
1 The district court affirmed and so
do we, although on different grounds.
{2} In the early
morning hours of January 14, 2012, Officer Richard Locke of the Albuquerque
Police Department (APD) pulled Defendant over for driving 51 miles per hour in
a 40 mile-per-hour zone. Defendant appeared to be intoxicated and, pursuant to
APD policy, Officer Locke requested a special unit to investigate her for
driving under the influence (DUI).
{3} Officer Jared
Frazier responded to the scene and administered field sobriety tests, which
Defendant failed. Officer Frazier determined that Defendant was impaired and
placed her under arrest for DUI. After Defendant agreed to submit to a BAT,
Officer Frazier started the required twenty-minute deprivation period.
{4} Officer Frazier was
certified by the SLD to administer BATs on the Intoxilyzer 8000 instrument (IR
8000), which he called the “machine,” and he administered Defendant’s BAT on
the IR 8000 located at the prisoner transport center. Officer Frazier testified
that he used a clean mouthpiece, explained the procedure to Defendant, and ran
a total of five air-blank checks. He testified that air-blank checks flush out
the machine and check the ambient air for interference, and that all of the
air-blank checks he ran resulted in readings of .00. He also explained the
range of allowable results on calibration checks of the IR 8000 and testified
that diagnostic and calibration checks were run and passed. Officer Frazier
further testified that he saw a copy of the SLD certification affixed to the
front of the IR 8000 and that the machine appeared to be functioning normally.
The machine collected two breath samples from Defendant.
{5} The State moved to
admit Defendant’s BAT results. At defense counsel’s request, the trial court
deferred ruling on the admission of the BAT results until after
cross-examination. On cross-examination, Officer Frazier conceded that he did
not know who had prepared the SLD certification of the IR 8000; nor did he have
anything to do with ensuring that the machine complied with SLD regulations, or
with inspections, or other accuracy aspects of the machine.
{6} When questioned
specifically about the gas canisters used on the machine, Officer Frazier
testified that he has nothing to do with their approval, selection, or
purchase, and that he did not know the make, model, or serial number of the
canister used on the day of Defendant’s test. About eight months after
Defendant’s BAT, Officer Frazier went to SLD and the APD Crime Lab, where he
learned that the gas canisters used on the machine were the same make and model
as those listed in the SLD regulations.
{7} At the end of
Officer Frazier’s testimony, defense counsel moved to exclude Defendant’s BAT
results on the ground that they lacked a sufficient foundation to support their
admission into evidence. Specifically, defense counsel argued that the gas
canister is a piece of equipment separate from the IR 8000, and that Officer
Frazier failed to “make the connection that this is a SLD approved piece of
equipment” because he did not know the canister’s serial number, the
manufacturer, or its expiration date.
{8} The trial court
admitted the BAT results over Defendant’s objection. Officer Frazier was
recalled to the stand and testified that Defendant’s two BAT results were .11.
The trial court found Defendant guilty of DUI under New Mexico’s “per se” DUI
statute, which provides that it is illegal for a person to drive a vehicle with
“an alcohol concentration of eight one hundredths [.08] or more in [his or her]
blood or breath.”
See NMSA 1978, §
66-8-102(C)(1) (2010). Defendant
appealed to the Second Judicial District Court, challenging the admission of
her BAT results on the basis that the State failed to establish that the gas
canister complied with “accuracy ensuring” SLD regulations. The district court
affirmed on the ground that “Officer Frazier’s testimony was sufficient to
establish, by a preponderance of the evidence, the [gas reference standard] was
approved by SLD.” This appeal timely followed.
{9} “The interpretation
of an administrative regulation is a question of law that we review de novo,”
applying the same rules we use to interpret statutes.
State v. Willie,
2009-NMSC-037, ¶ 9,
146 N.M. 481,
212 P.3d 369. “The principal command of
statutory construction is that the court should determine and effectuate the
intent of the [L]egislature, using the plain language of the statute as the
primary indicator of legislative intent.”
Id. (alteration, internal
quotation marks, and citation omitted). If the plain meaning is “doubtful,
ambiguous, or if an adherence to the literal use of the words would lead to
injustice, absurdity or contradiction, we will construe the statute according
to its obvious spirit or reason.”
Id. (alteration, internal quotation
marks, and citation omitted).
{10} “We review an
alleged error in the admission of evidence for an abuse of discretion” and will
overturn a trial court’s evidentiary ruling “only when the facts and
circumstances of the case do not support [its] logic and effect.”
Martinez,
2007-NMSC-025, ¶ 7 (internal quotation marks and citation omitted).
{11} New Mexico’s Implied
Consent Act (ICA) requires that “[a] test of blood or breath or both, approved
by the [SLD] pursuant to the provisions of Section
24-1-22 NMSA 1978, shall be
administered at the direction of a law enforcement officer having reasonable
grounds to believe the person to have been driving a motor vehicle within this
state while under the influence of intoxicating liquor or drug.” NMSA 1978,
§ 66-8-107(B) (1993). Such test results “may be introduced into evidence
in any civil action or criminal action arising out of the acts alleged to have
been committed by the person tested for driving a motor vehicle while under the
influence of intoxicating liquor or drugs.” NMSA 1978, §
66-8-110(A) (2007).
Pursuant to Section 24-1-22, the Legislature has delegated authority over all
aspects of such testing to SLD. That statute provides, in pertinent part, as
follows:
A. The [SLD] is authorized to
promulgate and approve satisfactory techniques or methods to test persons believed
to be operating a motor vehicle . . . under the influence of drugs or alcohol
and to issue certification for test operators and their instructors. . . . The
[SLD] is further authorized to establish or approve quality control measures
for alcohol breath testing and to establish or approve standards of training
necessary to ensure the qualifications of individuals conducting these analyses
or collections.
B. The [SLD] shall establish
criteria and specifications for equipment, training, quality control, testing
methodology, blood-breath relationships and the certification of operators,
instructors and collectors of breath samples.
{12} Under its statutory
authority, the SLD has promulgated regulations in the form of a rule (Rule)
governing “the certification of laboratories, breath alcohol instruments,
operators, key operators, and operator instructors of the breath alcohol
instruments as well as establish[ing] the methods of taking and analyzing
samples of blood and breath testing for alcohol or other chemical substances
under the [ICA].”
7.33.2.2 NMAC. The stated objective of the many regulations
set forth in the Rule is “to establish standards and procedures” for
certification and “methods of taking and analyzing samples” for such testing.
Id.
7.33.2.6 NMAC.
{13} The Rule defines
“Breath alcohol instrument” as “[a]ny evidential breath testing device that is
capable of analyzing breath to establish the concentration of alcohol contained
in a breath sample” and requires that “[s]uch
instruments must be approved
and individually certified by SLD for use in testing pursuant to the [ICA]
and this rule.”
7.33.2.7(G) NMAC (emphasis added). It defines “Equipment” as
“[d]evices which are not a component of the breath alcohol instrument but
assist in meeting the requirements of an evidentiary breath test, including but
not limited to simulators, gas tanks, gas brackets, and reference standards.”
7.33.2.7(L)
NMAC. Defendant’s argument presumes that the Rule 11-104(A) foundational
requirements applicable to an individual “breath alcohol instrument” also apply
to individual pieces of “equipment”—here, the gas tank attached to the
instrument and the gas reference standard it contains. The Rule itself,
however, treats the “breath alcohol instrument” (hereinafter, instrument) very
differently from “equipment.”
{14} SLD selects the
instruments used in New Mexico based on criteria that include performance in
SLD’s evaluation process, field history, manufacturer support capability, and
evaluations by other users, including approval by the National Highway Traffic
Safety Administration.
7.33.2.9 NMAC. The Rule requires that both instruments
and equipment (as relevant here, gas tanks and reference standards) must be
approved
by SLD before they may be used in BATs.
See 7.33.2.9(A) NMAC (stating
that manufacturers of instruments and reference standards must “submit their
instrumentation and equipment to SLD for approval”);
7.33.2.9(H) NMAC (stating
that SLD may withdraw approval of instrument and equipment “if the manufacturer
fails to comply with the provisions of the approval criteria or the terms of
any contracts with SLD”). It also requires that SLD maintain a list of the
instruments and equipment it has approved for use under the ICA.
See 7.33.2.16(B)
NMAC. Finally, as the State notes in its answer brief, the SLD publishes a list
of SLD approved breath and blood alcohol testing or collection devices.
Although there is nothing in the record concerning the contents of the list in
2012, the current list, updated on April 2, 2014, identifies the IR 8000 as the
approved instrument; identifies by manufacturer and model approved gas
reference standard tanks; and clarifies that “[a]ll tanks, which are compatible
with the [IR] 8000, containing an approved reference standard, are approved for
use.” N.M. Dep’t of Health, List of Approved Breath & Blood Alcohol Testing
or Collection Devices & Accessories,
available at http://nmhealth.org/publication/view/general/1537/.
{15} As to equipment, the
only other requirements stated in the Rule are that breath alcohol samples
“shall be collected and analyzed pursuant to the procedures prescribed by SLD
and
employing only SLD approved equipment[,]”
7.33.2.15(B)(1) NMAC
(emphasis added), and that “calibration checks” of instruments must be
performed using gas reference standards that have been approved by SLD.
7.33.2.14(C)(2)(b) NMAC. The Rule defines “Calibration check” as “[t]he analysis
of an externally delivered, controlled, ethanol vapor specimen of known alcohol
concentration” and requires that “SLD shall determine the breath alcohol
simulators
2 or gases to be used.”
7.33.2.7(I)
NMAC. In a calibration check, the instrument is checked to ensure that its
analysis of one or more reference standards (here, gas) of known alcohol
concentration produces a reading within a specified range.
7.33.2.14(C)(2)(b)(i)-(iii) NMAC.
{16} In contrast to equipment,
instruments, once approved, must also be
certified by SLD.
See
7.33.2.10(A) NMAC (“[B]reath alcohol instruments to be used for implied consent
evidential testing must be approved and certified by SLD.”). The Rule’s
certification requirements for instruments are extensive.
7.33.2.10 NMAC. So
too, are the certification requirements for operators,
7.33.2.11 NMAC; key
operators,
7.33.2.12 NMAC; and operator instructors,
7.33.2.13 NMAC. For
example, each individual instrument must be certified “for a period of up to
one year,” and “[a] certificate shall be issued for each instrument and shall
be maintained by the responsible agency.”
7.33.2.10(A) NMAC. The certification
of each instrument must be renewed annually based on compliance with the Rule
and, again, a certificate must be issued for each instrument and maintained by
the responsible agency.
7.33.2.10(C) NMAC. To obtain initial certification an
individual instrument must be inspected and calibration-checked by SLD,
7.33.2.10(A)(1) NMAC, and at least one certified key operator must be
responsible for its maintenance.
7.33.2.10(A)(2) NMAC. The Rule contains
numerous continuing requirements for individual instruments, including
submission of logbooks and records at scheduled times; annual analysis of four
proficiency samples; calibration checks at least once every seven days or with
each subject test or both; biannual inspections that include evaluation of the
instrument’s electronic functions and settings, analysis of a series of alcohol
controls with an accuracy requirement of the greater of +5 percent or .005 on
all target values, and review of the instrument’s sensitivity for the detection
of any interfering substances.
7.33.2.10(B)(1) NMAC. For instruments used at
fixed locations, the Rule imposes additional requirements.
7.33.2.10(B)(2)
NMAC. SLD may deny, suspend, or revoke the certification of any instrument for
ICA testing on grounds including that the instrument is not on the SLD-approved
list and that calibration results do not meet criteria established by SLD.
7.33.2.10(D)(1) NMAC.
{17} As noted, the Rule
requires that breath samples must be collected and analyzed “pursuant to the
procedures prescribed by SLD and employing only SLD approved equipment and
certified instruments.”
7.33.2.15(B)(1) NMAC. These procedures include
collection and analysis by certified operators or certified key operators, a
good faith attempt to collect and analyze at least two samples, taken not more
than fifteen minutes apart and after a twenty-minute period (often referred to
as the “deprivation period”) during which the subject has not had anything to
eat, drink or smoke.
7.33.2.15(2) NMAC. As relevant here, the Rule also
specifies the following “minimum requirements” for an ICA breath sample: (a) a
system air-blank analysis before each sample; and (b) a calibration check using
SLD-approved gas standards in accordance with one or both of the following
procedures: (i) the instrument must be maintained and calibration-checked by
the key operator, with calibration checks at least once every seven days
resulting in readings within prescribed ranges upon analysis of two separate
gas standards, each simulating a different specified alcohol concentration;
(ii) a single calibration check with each subject test using a gas standard
that simulates 0.08 grams per 210 liters, resulting in a reading within ±0.01
of the specified standard.
7.33.2.14(C)(2) NMAC.
Confirmation That SLD Has
Approved the Equipment On a Breath Alcohol Instrument Is Not Required by SLD
Regulations and Is Not a Foundational Prerequisite to Admission of BAT Results
{18} Our Supreme Court
has held that, to meet foundational requirements under Rule 11-104(A), the
State need not show strict compliance with all SLD regulations set forth in the
Rule, but only with those regulations that are “accuracy-ensuring.”
Martinez,
2007-NMSC-025, ¶ 11 (citing
State v. Dedman,
2004-NMSC-037, ¶ 13,
136 N.M. 561,
102 P.3d 628,
overruled on other grounds by State v.
Bullcoming,
2010-NMSC-007,
147 N.M. 487,
226 P.3d 1). In
Martinez,
our Supreme Court held that SLD regulations governing certification of
instruments “clearly exist to ensure that the result of a test conducted on a
breathalyser is accurate[,]” and thus, a threshold showing of current SLD
certification of an instrument at the time of the BAT is a foundational
prerequisite for admission of BAT results into evidence.
2007-NMSC-025, ¶¶
11-12. In
Dedman, the Court held that the purpose of an SLD regulation
requiring collection of a blood alcohol sample by “veni-puncture” was not to
ensure the accuracy of the test and, as a result, a showing of compliance with
that requirement was not a foundational prerequisite to the admissibility of
blood alcohol reports.
2004-NMSC-037, ¶¶ 14-19.
{19} Defendant asserts
that SLD approves tanks and gases because they are used in “self-calibration
checks by an [IR 8000] during a breath test” and that “[i]t follows that both
the process of approval and the purpose of the tanks and gases should ensure
the accuracy of breath test results.” She concludes that “[t]he minimum
foundation for showing approval of the simulator solution [sic] is the same as
that for showing certification of a breath machine[,]” and therefore, “upon
objection, the officer testifying for this foundation should be aware of SLD
documentation asserting the approval of both the certification of the breath
machine and approval of accessories.” The argument lacks merit.
{20} The certification
requirements for the instrument relate to its “routine function . . . in order
to [ensure] that it gives accurate readings.”
Dedman,
2004-NMSC-037, ¶
12 (internal quotation marks and citation omitted). Similarly, “[t]he purpose
of calibration is to ensure that the machine is working properly so that a
valid breathalyzer test result is obtained.”
State v. Montoya,
1999-NMCA-001, ¶ 12,
126 N.M. 562,
972 P.2d 1153. The calibration check
specified in the Rule checks the instrument to ensure that its analysis of one
or more gas reference standards of known alcohol concentration produces a
reading within a specified range. 7.33.2.14(C)(2)(b)(i)-(iii) NMAC. If it does,
the instrument is deemed to be functioning properly; if it does not, there is a
problem. While it is possible that a given tank may contain a gas that is not
at the alcohol concentration specified by the Rule, the defect presumably would
be revealed in an instrument reading outside the range prescribed by the Rule.
In this case, Officer Frazier testified that calibration checks were run and
passed.
{21} The Legislature has
delegated full authority to SLD over the testing of persons believed to be DUI,
including the establishment of criteria and specifications for equipment,
quality control, testing methodology and standards, and the certification of
breath alcohol instruments, operators, and instructors. Section 24-1-22(A),
(B). And the regulations embodied in the SLD Rule plainly treat instruments
very differently from equipment used with instruments. As discussed, the Rule
imposes extensive and explicit certification requirements on instruments (as
well as operators, key operators, and operator instructors), including that
each individual instrument have a current certificate evidencing compliance
with SLD regulations. In contrast, the only requirements for equipment stated
in the Rule are that SLD approve and maintain a list of approved manufacturer’s
equipment,
see 7.33.2.9(A) NMAC;
7.33.2.16(B) NMAC; that SLD-approved
equipment be used to collect and analyze breath alcohol samples,
see
7.33.2.15(B)(1) NMAC; and that instrument calibration checks be performed using
SLD-approved gas reference standards,
see 7.33.2.14(C)(2)(b) NMAC. The
Rule contains no requirement that SLD or certified instrument operators must
confirm that each individual tank and its contents are SLD-approved before a
BAT is administered. The Rule itself contains no indication that such
individual confirmation is necessary to ensure the accuracy of a BAT result.
And the SLD’s current approved list suggests the contrary, stating that “[a]ll
tanks, which are compatible with the [IR] 8000, containing an approved
reference standard, are approved for use.” N.M. Dep’t of Health, List of
Approved Breath & Alcohol Testing or Collection Devices & Accessories,
available
at http://nmhealth.org/ publication /view/general/1537/.
{22} Neither the plain
language nor the “obvious spirit or reason” of the SLD Rule even suggests that
the regulations requiring SLD approval of equipment are “accuracy ensuring” in
the same manner as the regulations imposing numerous certification requirements
on SLD-approved instruments on a per-instrument basis. And Defendant has
provided no basis from which to conclude that confirmation by the certified
instrument operator at the time of the BAT that the gas tank and the reference
standard it contains are SLD-approved is necessary to ensure the accuracy of
the BAT. We conclude that the State need not make a threshold showing that the
certified operator of a certified breath alcohol instrument confirmed at the
time of the test that equipment attached to the instrument is SLD-approved in
order to lay a sufficient foundation under Rule 11-104(A) for the admission of
BAT results into evidence. As noted in
Martinez, “once the trial court
determines that the [s]tate has met the foundational requirements for the admission
of a BAT card, a defendant may successfully challenge the reliability of the
breath test.”
2007-NMSC-025, ¶ 24. And a defendant is entitled to discovery
concerning SLD-approved equipment to use in challenging the foundation for or
the reliability of his or her BAT results.
Id.
{23} The trial court did
not abuse its discretion in admitting Defendant’s BAT results into evidence. We
affirm.