This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.
Facts
The Defendant was arrested for driving while intoxicated (DWI) and consented to a breath alcohol test. The first sample registered a breath alcohol concentration (BrAC) of 0.22. The Defendant, who had asthma, requested to use his inhaler before the second test. After using the inhaler, the second test resulted in an error message indicating "Range Exceeded." The officer terminated the test, relying on the first sample to prove intoxication, and did not attempt a third test or a blood draw (paras 2-4).
Procedural History
- District Court, Date Unspecified: The court granted the Defendant’s motion to suppress the breath test results, finding that the officer failed to comply with 7.33.2.12(B)(1) NMAC, which requires multiple breath samples unless the subject declines or is physically incapable of consent (paras 5-6).
Parties' Submissions
- Appellant (State): Argued that the officer complied with 7.33.2.12(B)(1) NMAC because the Defendant was physically incapable of providing a second sample due to asthma and that the officer made a good faith effort to obtain two samples (para 6).
- Appellee (Defendant): Contended that the officer failed to comply with the regulation, as the Defendant consented to testing and was not physically incapable of providing additional samples. The Defendant argued that the officer prematurely terminated the test and failed to follow proper procedures (paras 5, 10-11).
Legal Issues
- Did the officer comply with 7.33.2.12(B)(1) NMAC by terminating the breath test after obtaining only one valid sample?
- Was the suppression of the breath test results appropriate due to non-compliance with the regulation?
Disposition
- The Court of Appeals affirmed the district court’s decision to suppress the breath test results (para 22).
Reasons
Per Kennedy J. (Fry C.J. and Vanzi J. concurring):
- The regulation 7.33.2.12(B)(1) NMAC requires two breath samples unless the subject declines or is physically incapable of consent. The Defendant consented to testing and provided two samples, but the officer terminated the test based on an assumption about the Defendant’s physical ability, not his consent (paras 9-13).
- The officer’s subjective belief that the Defendant could not provide a second valid sample was insufficient to justify terminating the test. The regulation distinguishes between physical incapacity to consent and physical difficulty in providing a sample (paras 10-13).
- The officer failed to comply with the regulation by not attempting a third breath sample or a blood draw after the second test produced an error message. The officer’s actions did not meet the strict compliance standard required by State v. Gardner (paras 16-20).
- The Court emphasized that strict compliance with the regulation is necessary to ensure the accuracy and reliability of breath tests. The officer’s failure to follow the prescribed procedures rendered the test results inadmissible (paras 19-21).