State v. Pacheco

536 P.3d 513

STATE of New Mexico, Plaintiff-Appellee,

v.Leona Louise Garcia PACHECO, Defendant-Appellant.

No. A-1-CA-39633

Court of Appeals of New Mexico.

Filing Date: July 17, 2023

Certiorari Denied, August 31, 2023, No. S-1-SC-40054

Raúl Torrez, Attorney General, Santa Fe, NM, Leland M. Churan, Assistant Attorney General, Albuquerque, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Santa Fe, NM, Luz C. Valverde, Assistant Appellate Defender, Albuquerque, NM, for Appellant

WRAY, Judge.

{1} Having granted the State's motion for rehearing and considered Defendant's response, we withdraw the opinion filed May 30, 2023, and substitute the following in its place. Defendant Leona Garcia Pacheco appeals the metropolitan court's conviction for driving while under the influence of intoxicating liquor (DWI), impaired to the slightest degree, contrary to NMSA 1978, Section 66-8-102(A) (2016).¹ On appeal, Defendant asserts that the metropolitan court improperly admitted and relied on a breath test result based on a single usable breath sample and that its admission was not harmless. We have previously affirmed the suppression of breath test results when an officer obtained only a single usable breath sample, based on the regulation in effect at that time. See State v. Ybarra , 2010-NMCA-063, ¶ 1, 148 N.M. 373, 237 P.3d 117 ; see also 7.33.2.12(B)(1) NMAC (3/14/2001) (the 2001 Regulation). The regulation relied on in Ybarra , however, has since been amended, and the State maintains that the current regulation, 7.33.2.15 NMAC (the Current Regulation), does not require the breath test to be excluded. We hold that the State did not lay a sufficient foundation to admit the breath test results under the Current Regulation, but that the error in admitting the results was harmless. We therefore affirm.

BACKGROUND

{2} The criminal complaint alleged that Defendant was pulled over for swerving within the lane of traffic. A DWI officer, Deputy Fernandez, arrived and observed that Defendant had bloodshot and watery eyes and emitted an odor of alcohol. After attempting the field sobriety tests, Defendant was arrested, could provide only one usable breath alcohol sample, and was charged with aggravated DWI under Section 66-8-102(D)(1), because the single breath test result showed greater than .16 grams per 210 liters of breath. At trial, Defendant argued that the single breath test was not admissible because the Scientific Laboratory Division (SLD) standard for accuracy required two breath samples, as set forth in Ybarra . The metropolitan court admitted the single breath sample into evidence. Later, at the directed verdict stage, the metropolitan court dismissed the aggravated DWI charge but proceeded on the lesser included offense of DWI, impaired to the slightest degree, under Section 66-8-102(A). See State v. Notah-Hunter , 2005-NMCA-074, ¶ 22, 137 N.M. 597, 113 P.3d 867 (establishing that the offense of DWI impaired to the slightest degree is a lesser included offense of aggravated DWI). In this ruling, the metropolitan court noted that the breath test result was relevant to show the presence of alcohol. The metropolitan court convicted Defendant of DWI, impaired to the slightest degree, and Defendant appealed.

DISCUSSION

{3} Defendant argues that the metropolitan court improperly admitted and relied on the breath test results because the single breath test was unreliable, and its admission was not harmless. The State responds that the breath test was admissible under the Current Regulation and that regardless, any error was harmless. We review the admission of evidence for an abuse of discretion, see State v. Martinez , 2007-NMSC-025, ¶ 7, 141 N.M. 713, 160 P.3d 894, and "[t]he interpretation of an administrative regulation is a question of law that we review de novo," Ybarra , 2010-NMCA-063, ¶ 7, 237 P.3d 117 (internal quotation marks and citation omitted). We begin by considering the admission of the breath test result.

I. The Breath Test Was Not Admissible Under the Circumstances

{4} Breath test results are admissible only when the State lays an appropriate evidentiary foundation. See Martinez , 2007-NMSC-025, ¶ 9, 160 P.3d 894. "[T]o meet foundational requirements, the [s]tate does not need to show compliance with all regulations, but only with those that are accuracy-ensuring." Id. ¶ 11 (internal quotation marks and citation omitted). In Ybarra , we observed that the 2001 Regulation was an accuracy-ensuring regulation, and we therefore analyzed the regulatory requirements to evaluate the proper foundation in order to admit the breath test. Ybarra , 2010-NMCA-063, ¶ 9, 237 P.3d 117 ; see also State v. Vaughn , 2005-NMCA-076, ¶ 38, 137 N.M. 674, 114 P.3d 354 (noting that "[i]t is reasonable to conclude that the requirement for two samples is for greater accuracy"). To support the argument that the breath test was without foundation and inadmissible because the officer did not obtain two breath test results, Defendant relies largely on Ybarra .

{5} In Ybarra , the defendant consented to take a breath test after being arrested for DWI. 2010-NMCA-063, ¶ 2, 237 P.3d 117. After providing one sample, the defendant requested to use an inhaler for asthma, and the officer agreed. Id. ¶ 3. Two minutes later, the defendant's second sample registered an error—"Range Exceeded." Id. ¶ 4 (internal quotation marks omitted). The officer terminated the test at that point, determined blood testing was unnecessary, and concluded that enough evidence to establish intoxication had been gathered—including the defendant's admission to consuming alcohol and the results of the first breath test. Id. The district court granted the defendant's motion to suppress the breath test. Id. ¶ 5.

{6} On appeal, this Court considered the 2001 Regulation, which required that "two breath samples shall be collected and analyzed." 7.33.2.12(B)(1) NMAC (3/14/2001) (emphasis added). Interpreting this regulation, the Ybarra Court explained that

as a general rule, in order for a breath test to meet SLD's requirements, 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 samples occurs when a defendant ‘declines or is physically incapable of consenting’ to the second.

2010-NMCA-063, ¶ 9, 237 P.3d 117 (quoting the 2001 Regulation) (alteration omitted). Because "the evidence [was] unequivocal that [the d]efendant did not, without justification, fail to provide a breath sample and that he had actively consented to do so throughout the testing procedure," this Court determined that the 2001 Regulation did "not allow the use of the single sample that resulted in a breath alcohol value." Id. ¶ 12. The Ybarra Court further concluded, again based on the 2001 Regulation, that the officer could not appropriately discontinue testing based on a subjective view that the defendant "was incapable of completing the test, not incapable of consenting to it." Id. ¶ 16. Because strict compliance with the 2001 Regulation was necessary, the Ybarra Court affirmed the suppression of the breath test because the "police failed to comply with" the regulation. Id. ¶ 22. In reaching this result, this Court rejected the state's argument that the 2001 Regulation's requirements were met when officers made a good faith effort to comply with the provision. Id. ¶¶ 19-21.

{7} In April 2010, however, the 2001 Regulation was amended and replaced by 7.33.2.15 NMAC, which states in relevant part that "[t]he breath test operator should make a good faith attempt to collect and analyze at least two samples of breath." 7.33.2.15(B)(2) NMAC (emphasis added). The State contends that under the Current Regulation, Deputy Fernandez's good faith attempt to collect two samples justified the admission of the breath test result. To address the State's arguments, we analyze the impact of the regulatory amendment on the collection and analyzation of breath samples.

{8} Comparing the Current Regulation to the 2001 Regulation, the 2001 Regulation required that "two breath samples shall be collected and analyzed," 7.33.2.12(B)(1) NMAC (3/14/2001), while the Current Regulation requires only that an officer "should make a good faith attempt to collect and analyze at least two samples of breath," 7.33.2.15(B)(2) NMAC. Thus, under the 2001 Regulation, if the operator collected two samples but one was not readable, the operator could not satisfy the requirement to analyze two samples unless one of the exceptions applied. In the Current Regulation, the collection and analyzation of at least two samples is not mandatory—an "operator should make a good faith attempt to collect and analyze at least two samples of breath." 7.33.2.15(B)(2) NMAC. Thus, if the operator is unable to analyze two samples, but made a good faith attempt to do so, the operator complied with the Current Regulation. This Court in Ybarra required strict compliance with the 2001 Regulation and therefore rejected good faith compliance. Ybarra , 2010-NMCA-063, ¶¶ 19-21, 237 P.3d 117. Based on the Current Regulation, we agree with the State that generally, we can no longer discount the operator's good faith attempt to collect and analyze two samples.

{9} We must also consider, however, the remainder of the accuracy ensuring requirements. Importantly, both the Current Regulation and the 2001 Regulation direct that "[i]f the difference in the results of the two samples exceeds 0.02 grams per 210 liters (BrAC), a third sample of breath or blood shall be collected and analyzed." See 7.33.2.15(B)(2) NMAC ; 7.33.2.12(B)(1) NMAC (3/14/2001). The State argues that because the second attempted sample registered as "---*" and not a number, Defendant's result did not "register .02 outside of the first sample," and therefore an attempt to collect a third sample was not required. We recognize that the third sample requirement could be read...