State v. Garcia Pacheco

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: May 30, 2023 4 No. A-1-CA-39633 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 LEONA LOUISE GARCIA PACHECO, 9 Defendant-Appellant. 10 APPEAL FROM THE METROPOLITAN COURT OF BERNALILLO 11 COUNTY 12 Jill M. Martinez, Metropolitan Court Judge 13 Raúl Torrez, Attorney General 14 Santa Fe, NM 15 Leland M. Churan, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Bennett J. Baur, Chief Public Defender 19 Santa Fe, NM 20 Luz C. Valverde, Assistant Appellate Defender 21 Albuquerque, NM 22 for Appellant 1 OPINION 2 WRAY, Judge. 3 {1} Defendant Leona Garcia Pacheco appeals the metropolitan court’s conviction 4 for driving while under the influence of intoxicating liquor (DWI), impaired to the 5 slightest degree, contrary to NMSA 1978, Section 66-8-102(A) (2016).1 On appeal, 6 Defendant asserts that the metropolitan court improperly admitted and relied on a 7 breath test result based on a single usable breath sample and that its admission was 8 not harmless. We have previously affirmed the suppression of breath test results 9 when an officer obtained only a single usable breath sample, based on the regulation 10 in effect at that time. See State v. Ybarra, 2010-NMCA-063, ¶ 1 , 148 N.M. 373 , 237 11 P.3d 117 ; see also 7.33.2.12(B)(1) NMAC (3/14/2001) (the 2001 Regulation). The 12 regulation relied on in Ybarra, however, has since been amended, and the State 13 maintains that the current regulation, 7.33.2.15 NMAC (the Current Regulation), 14 does not require the breath test to be excluded. We hold that the State did not lay a 15 sufficient foundation to admit the breath test results under the Current Regulation, 16 but that the error in admitting the results was harmless. We therefore affirm. [1] Section 66-8-102(D)(3) was held to be unconstitutional by this Court in State v. Storey, 2018-NMCA-009, ¶ 32 , 410 P.3d 256 . Section 66-8-102(D)(3) refers to aggravated DWI, which is not at issue here, and Storey did not affect the constitutionality of Section 66-8-102(A). 1 BACKGROUND 2 {2} The criminal complaint alleged that Defendant was pulled over for swerving 3 within the lane of traffic. A DWI officer, Deputy Fernandez, arrived and observed 4 that Defendant had bloodshot and watery eyes and emitted an odor of alcohol. After 5 attempting the field sobriety tests, Defendant was arrested, could provide only one 6 breath alcohol sample, and was charged with aggravated DWI under Section 66-8- 7 102(D)(1), because the single breath test result showed greater than .16 grams per 8 210 liters of breath. At trial, Defendant argued that the single breath test was not 9 admissible because the Scientific Laboratory Division (SLD) standard for accuracy 10 required two breath samples, as set forth in Ybarra. The metropolitan court admitted 11 the single breath sample into evidence. Later, at the directed verdict stage, the 12 metropolitan court dismissed the aggravated DWI charge but proceeded on the lesser 13 included offense of DWI, impaired to the slightest degree, under Section 66-8- 14 102(A). See State v. Notah-Hunter, 2005-NMCA-074, ¶ 22 , 137 N.M. 597 , 113 P.3d 15 867 (establishing that the offense of DWI impaired to the slightest degree is a lesser 16 included offense of aggravated DWI). In this ruling, the metropolitan court noted 17 that the breath test result was relevant to show the presence of alcohol. The 18 metropolitan court convicted Defendant of DWI, impaired to the slightest degree, 19 and Defendant appealed. [2] 1 DISCUSSION 2 {3} Defendant argues that the metropolitan court improperly admitted and relied 3 on the breath test results because the single breath test was unreliable, and its 4 admission was not harmless. The State responds that the breath test was admissible 5 under the Current Regulation and that regardless, any error was harmless. We review 6 the admission of evidence for an abuse of discretion, see State v. Martinez, 2007- 7 NMSC-025, ¶ 7, 141 N.M. 713 , 160 P.3d 894 , and “[t]he interpretation of an 8 administrative regulation is a question of law that we review de novo,” Ybarra, [9] 2010-NMCA-063, ¶ 7 (internal quotation marks and citation omitted). We begin by 10 considering the admission of the breath test result. 11 I. The Breath Test Was Not Admissible Under the Circumstances 12 {4} Breath test results are admissible only when the State lays an appropriate 13 evidentiary foundation. See Martinez, 2007-NMSC-025, ¶ 9 . “[T]o meet 14 foundational requirements, the [s]tate does not need to show compliance with all 15 regulations, but only with those that are accuracy-ensuring.” Id. ¶ 11 (internal 16 quotation marks and citation omitted). In Ybarra, we observed that the 2001 17 Regulation was an accuracy-ensuring regulation, and we therefore analyzed the 18 regulatory requirements to evaluate the proper foundation in order to admit the 19 breath test. Ybarra, 2010-NMCA-063, ¶ 9 ; see also State v. Vaughn, 2005-NMCA- 20 076, ¶ 38, 137 N.M. 674 , 114 P.3d 354 (noting that “[i]t is reasonable to conclude [3] 1 that the requirement for two samples is for greater accuracy”). To support the 2 argument that the breath test was without foundation and inadmissible because the 3 officer did not obtain two breath test results, Defendant relies largely on Ybarra. 4 {5} In Ybarra, the defendant consented to take a breath test after being arrested 5 for DWI. 2010-NMCA-063, ¶ 2 . After providing one sample, the defendant 6 requested to use an inhaler for asthma, and the officer agreed. Id. ¶ 3. Two minutes 7 later, the defendant’s second sample registered an error—“Range Exceeded.” Id. ¶ 4 8 (internal quotation marks omitted). The officer terminated the test at that point, 9 determined blood testing was unnecessary, and concluded that enough evidence to 10 establish intoxication had been gathered—including the defendant’s admission to 11 consuming alcohol and the results of the first breath test. Id. The district court 12 granted the defendant’s motion to suppress the breath test. Id. ¶ 5. 13 {6} On appeal, this Court considered the 2001 Regulation, which required that 14 “two breath samples shall be collected and analyzed.” 7.33.2.12(B)(1) NMAC 15 (3/14/2001) (emphasis added). Interpreting this regulation, the Ybarra Court 16 explained that 17 as a general rule, in order for a breath test to meet SLD’s requirements, 18 police must obtain at least two individual samples; if the results of those 19 samples are not within .02 grams of one another, police must obtain a 20 third. The only time police may take less than two samples occurs when 21 a defendant ‘declines or is physically incapable of consenting’ to the 22 second. [1] 2010-NMCA-063, ¶ 9 (quoting the 2001 Regulation) (alteration omitted). Because 2 “the evidence [was] unequivocal that [the d]efendant did not, without justification, 3 fail to provide a breath sample and that he had actively consented to do so throughout 4 the testing procedure,” this Court determined that the 2001 Regulation did “not allow 5 the use of the single sample that resulted in a breath alcohol value.” Id. ¶ 12. The 6 Ybarra Court further concluded, again based on the 2001 Regulation, that the officer 7 could not appropriately discontinue testing based on a subjective view that the 8 defendant “was incapable of completing the test, not incapable of consenting to it.” 9 Id. ¶ 16. Because strict compliance with the 2001 Regulation was necessary, the 10 Ybarra Court affirmed the suppression of the breath test because the “police failed 11 to comply with” the regulation. Id. ¶ 22. In reaching this result, this Court rejected 12 the state’s argument that the 2001 Regulation’s requirements were met when officers 13 made a good faith effort to comply with the provision. Id. ¶¶ 19-21. 14 {7} In April 2010, however, the 2001 Regulation was amended and replaced by 15 7.33.2.15 NMAC, which states in relevant part that “[t]he breath test operator should 16 make a good faith attempt to collect and analyze at least two samples of breath.” 17 7.33.2.15(B)(2) NMAC (emphasis added). The State contends that under the Current 18 Regulation, Deputy Fernandez’s good faith attempt to collect two samples justified 19 the admission of the breath test result. To address the State’s arguments, we analyze [5] 1 the impact of the regulatory amendment on the collection and analyzation of breath 2 samples. 3 {8} Comparing the Current Regulation to the 2001 Regulation, the 2001 4 Regulation required that “two breath samples shall be collected and analyzed,” 5 7.33.2.12(B)(1) NMAC (3/14/2001), while the Current Regulation requires only that 6 an officer “should make a good faith attempt to collect and analyze at least two 7 samples of breath,” 7.33.2.15(B)(2) NMAC. Thus, under the 2001 Regulation, if the 8 operator collected two samples but one was not readable, the operator could not 9 satisfy the requirement to analyze two samples unless one of the exceptions applied. 10 In the Current Regulation, the collection and analyzation of at least two samples is 11 not mandatory—an “operator should make a good faith attempt to collect and 12 analyze at least two samples of breath.” 7.33.2.15(B)(2) NMAC. Thus, if the 13 operator is unable to analyze two samples, but made a good faith attempt to do so, 14 the operator complied with the Current Regulation. This Court in Ybarra required 15 strict compliance with the 2001 Regulation and therefore rejected good faith 16 compliance. Ybarra, 2010-NMCA-063, ¶¶ 19-21 . Based on the Current Regulation, 17 we agree with the State that we can no longer discount the operator’s good faith 18 attempt to collect and analyze two samples. 19 {9} The question remains, however, whether Deputy Fernandez attempted in good 20 faith to collect and analyze two samples. While we agree that Deputy Fernandez [6] 1 made a good faith attempt at collection, we cannot reach the same conclusion with 2 respect to analyzation. Importantly, both regulations require that the operator collect 3 a third sample of breath or blood if the difference between the first and second 4 sample is greater than .02 grams per 210 liters of breath. See 7.33.2.15(B)(2) NMAC; 5 7.33.2.12(B)(1) NMAC (3/14/2001). The State argues that Defendant’s insufficient 6 sample result did not “register .02 outside of the first sample” and therefore a third 7 sample was not required. The Ybarra Court rejected this argument and determined 8 that under the 2001 Regulation, when a second sample is “inconsistent with the 9 first,” a third attempted breath or blood test is mandatory. See Ybarra, 2010-NMCA- 10 063, ¶ 18; see also 7.33.2.15(B)(2) NMAC. The language relied on in Ybarra has 11 not changed in the Current Regulation. Deputy Fernandez did not attempt a third 12 breath test or a blood test. Deputy Fernandez testified that Defendant attempted to 13 produce a second sample but the result was not usable because of Defendant’s 14 respiratory health issues. Because Deputy Fernandez did not attempt a third breath 15 test or a blood test, two samples could not be analyzed. The Current Regulation only 16 permits fewer samples to be analyzed “[i]f the subject declines or is physically 17 incapable of consent for the second or third samples.” 7.33.2.15(B)(2) NMAC. The 18 State does not suggest that either exception would apply to permit the analyzation of 19 fewer than two samples. Deputy Fernandez’s decision not to attempt to collect a 20 third sample undermined the good faith attempt to analyze two samples. See Ybarra, [1] 2010-NMCA-063, ¶ 18 . We therefore conclude that Deputy Fernandez did not 2 comply with the accuracy-insuring regulations to establish the necessary foundation 3 to admit the breath test results. 4 II. The Admission of the Breath Test Results Was Harmless Error 5 {10} The State nevertheless maintains that admitting the breath test was harmless 6 error. We review this admission of evidence for nonconstitutional error, see State v. 7 Serna, 2013-NMSC-033, ¶ 22 , 305 P.3d 936 , which “is harmless when there is no 8 reasonable probability the error affected the verdict,” State v. Ocon, 2021-NMCA- 9 032, ¶ 29, 493 P.3d 448 (internal quotation marks and citation omitted). We assess 10 “the potential impact of an error on the outcome” by reviewing “all of the 11 circumstances surrounding the error,” which include “the source of the error, the 12 emphasis placed on the error, evidence of the defendant’s guilt apart from the error, 13 the importance of the erroneously admitted evidence to the prosecution’s case, and 14 whether the erroneously admitted evidence was merely cumulative.” Id. (alteration, 15 internal quotation marks, and citation omitted). Defendant contends that the 16 circumstances of this case, including the metropolitan court’s reliance on the breath 17 test results and the other evidence of guilt, demonstrate that the error of admitting 18 the breath test results was not harmless. We turn to consider all of the circumstances 19 surrounding the error, focusing on “the central inquiry of whether [the] error was [8] 1 likely to have affected the [judge]’s verdict.” State v. Tollardo, 2012-NMSC-008 , 2 ¶ 42, 275 P.3d 110 . 3 {11} The metropolitan court admitted the breath test results, but subsequently 4 granted a directed verdict as to the aggravated charge. The metropolitan court 5 observed, however, that the breath card would be admissible to establish the 6 presence of alcohol, in order to support a conclusion that Defendant was impaired to 7 the slightest degree. See State v. Franklin, 2020-NMCA-016, ¶ 10 , 460 P.3d 69 8 (observing that breath alcohol tests have been held to be relevant to demonstrate the 9 presence of alcohol in the impaired to the slightest degree context). During closing 10 argument and rebuttal, the State mentioned the breath test result. The metropolitan 11 court, however, did not mention the result when it announced its guilty verdict. 12 Instead, the metropolitan court relied on other evidence and explained Defendant’s 13 inability to safely operate a vehicle 14 was demonstrated by the testimony regarding [Defendant’s] bloodshot, 15 watery eyes, [Defendant’s] slurred speech, the odor of alcohol, 16 [Defendant’s] failure to follow instructions on the field sobriety tests, 17 [Defendant’s] conducting on the few field sobriety tests that were 18 administered, [Defendant’s] words and [Defendant’s] actions, 19 [Defendant’s] admission to drinking an alcoholic beverage, the 20 presence of an open container, [and Defendant’s] bad driving. 21 The metropolitan court’s explanation gives us confidence that the erroneously 22 admitted breath test result did not affect the verdict. See Tollardo, 2012-NMSC-008 , 23 ¶ 42. [9] 1 {12} Defendant argues that the metropolitan court inappropriately relied on the 2 inadmissible breath test results, because the scientific evidence carried “an air of 3 objective reliability,” the metropolitan court pointed to the breath test results during 4 the directed verdict proceeding, and the record does not clearly demonstrate that the 5 results were not a factor in the verdict. Defendant relies on Franklin and State v. 6 Gardner, 1998-NMCA-160 , 126 N.M. 125 , 967 P.2d 465 , to support these 7 arguments. In Franklin, we considered harmless error in relation to inadmissible 8 blood test results. 2020-NMCA-016, ¶ 9 . The DWI conviction was “based on [the] 9 defendant’s impairment to the slightest degree” and though the blood test result was 10 relevant to show the presence of alcohol, the record showed no indication that the 11 district court did not also consider the testimony about the blood test results. Id. ¶ 10. 12 This was particularly so because the district court announced the results of the test 13 during its verdict and noted that the result of the blood test was concerning. Id. This 14 Court therefore could not conclude that the district court did not rely on the 15 inadmissible blood alcohol test results in making its final decision and held that “any 16 error that may exist with respect to the admission of the blood test results was not 17 harmless.” Id. In Gardner, we held that the numerical breath test results were 18 improperly admitted into evidence and concluded that “when the only scientific 19 evidence presented at trial was admitted in error, the court cannot say that the effect 20 is harmless.” 1998-NMCA-160, ¶¶ 20-21 . [10] 1 {13} Unlike in Franklin, in which the district court announced the blood alcohol 2 test results during its verdict and expressed concern, the metropolitan court in the 3 present case did not rely on—or even mention—the breath card when delivering the 4 verdict. 2 While, like in Gardner, the breath tests results were the “only scientific 5 evidence presented at trial,” 1998-NMCA-160, ¶ 21 , the metropolitan court 6 considered Defendant’s breath test results at most to demonstrate the presence of 7 alcohol. In that light, the breath test results were cumulative of Defendant’s 8 admission to drinking alcohol. See Ocon, 2021-NMCA-032, ¶¶ 29, 31 (considering 9 the cumulative nature of the evidence in the harmless error analysis and concluding 10 that the erroneously admitted evidence was cumulative of the defendant’s 11 admission). 12 {14} Although the metropolitan court was aware of the breath test result, the court 13 did not reference the breath test while delivering the verdict and any reliance on the 14 breath test was limited to the presence of alcohol, which was cumulative of 15 Defendant’s admission. The other evidence supported the verdict that Defendant was 16 impaired to the slightest degree. For these reasons, we conclude there is no [2] The recording of the district court’s verdict is not complete and cuts off before the district court completed giving its ruling. The log notes for the proceeding indicate that twelve seconds are missing from the end of the recording. Defendant does not argue that the metropolitan court referenced the breath test results in the missing portion of the recording, and so we rely with confidence on the record before us. [11] 1 reasonable probability that the admission of the breath test result affected the verdict 2 and its admission was harmless. 3 CONCLUSION 4 {15} Although the single breath test result was improperly admitted under the 5 Current Regulation, the error was harmless, and we affirm. 6 {16} IT IS SO ORDERED. 7 ______________________________ 8 KATHERINE A. WRAY, Judge 9 WE CONCUR: 10 __________________________ 11 ZACHARY A. IVES, Judge 12 __________________________ 13 JANE B. YOHALEM, Judge