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                                                                   New Mexico Compilation
                                                                 Commission, Santa Fe, NM
                                                                '00'04- 14:03:13 2016.10.03

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-080

Filing Date: July 7, 2016

Docket No. 33,875

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

CHRIS HALL,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Vicki W. Zelle, Assistant Appellate Defender
Albuquerque, NM

for Appellant

                                         OPINION

HANISEE, Judge.

{1}     Defendant Chris Hall appealed his conviction in the metropolitan (metro) court for
driving while intoxicated (DWI), contrary to NMSA 1978, Section 66-8-102(C)(1) (2010),
to the district court. The district court affirmed the metro court’s sentencing order and filed
a memorandum opinion. Defendant now appeals to this Court. He challenges the
constitutionality of the sobriety checkpoint at which he was stopped, the admission into

                                              1
evidence of his breath test results, and the sufficiency of the evidence to support his
conviction. We conclude that while the checkpoint was constitutional, the metro court erred
in admitting Defendant’s breath results. Because the evidence was otherwise sufficient to
support Defendant’s conviction, we reverse and remand for a new trial.

BACKGROUND

{2}     Shortly after 10:00 p.m. on January 20, 2012, Defendant was stopped at a DWI
checkpoint on Central Avenue in Albuquerque, New Mexico, just west of the Rio Grande
River. The checkpoint—in place between 10:00 p.m. and 3:00 a.m.—had been planned by
Sergeant Lecompte, DWI Unit Supervisor for the Bernalillo County Sheriff’s Office
(BCSO), and approved by his lieutenant. An approved tactical plan (tact plan) laid out the
parameters of the checkpoint, including the placement of signs, cones, reflective tape, and
emergency lighting at the checkpoint site. The tact plan also included guidelines for field
officers conducting stops at the checkpoint, specifying that initial contact with each driver
should be limited to 15-30 seconds, with the officer introducing himself, announcing the
purpose of the checkpoint, and asking the driver if he or she has consumed alcohol or drugs.
If additional investigation was required following the initial contact, the officer was to
remove the driver from the vehicle to conduct standardized field sobriety tests (FSTs) in a
separate investigation area. Sergeant Lecompte briefed each of the field officers on the tact
plan prior to initiating the checkpoint and remained on-site to supervise and to ensure that
the tact plan was being followed.

{3}    The first officer to make contact with Defendant was BCSO Sergeant Perea, who
upon making contact detected an odor of alcohol coming from inside Defendant’s truck. In
accordance with the suggested checkpoint dialogue contained in the tact plan, and because
Defendant was the only person inside the truck, Sergeant Perea asked Defendant if he had
consumed any alcoholic beverages that evening. Defendant responded that he had a beer
about an hour prior. Sergeant Perea then conducted a seated horizontal gaze nystagmus
(HGN) test on Defendant. Based on the odor of alcohol, Defendant’s admission to drinking
beer an hour prior, and Defendant’s performance on the seated HGN test, Sergeant Perea
removed Defendant from his truck and proceeded to conduct a battery of three standardized
FSTs. Defendant’s performance on the FSTs resulted in his arrest for DWI.

{4}     Defendant was then taken to the “BATmobile”—located at the checkpoint
site—where he consented to a breath test. Following a 20-minute deprivation period, as
measured by Sergeant Perea’s wristwatch, Defendant provided two breath samples using an
Intoxilyzer 8000. The breath test results revealed that Defendant had 0.10 grams of alcohol
per 210 liters of breath, which was above the “per se” legal limit. See § 66-8-102(C)(1)
(providing that it is illegal for a person to drive a vehicle with “an alcohol concentration of
eight one hundredths [0.08] or more in [his or her] blood or breath”).

{5}   At a bench trial in the metro court, Defendant challenged the constitutionality of the
DWI checkpoint. He also objected to the admissibility of the breath test results. The metro

                                              2
court found that the checkpoint was constitutional and admitted the breath test results. The
metro court then found Defendant guilty of per se DWI, although it acquitted Defendant of
DWI based on impairment to the slightest degree, contrary to Section 66-8-102(B).

{6}     On appeal, the district court affirmed Defendant’s conviction for per se DWI,
determining that the checkpoint was constitutional and that the breath results were properly
admitted into evidence. While we agree with the district court that the checkpoint was
constitutional, we disagree with respect to the breath test and conclude that the metro court
erred in admitting the breath results.

DISCUSSION

{7}      “For on-record appeals the district court acts as a typical appellate court, with the
district court simply reviewing the record of the [metro] court trial for legal error.” State v.
Trujillo, 1999-NMCA-003, ¶ 4, 126 N.M. 603, 973 P.2d 855. “In subsequent appeals such
as this, we apply the same standards of review employed by the district court.” State v. Bell,
2015-NMCA-028, ¶ 2, 345 P.3d 342. “A trial court’s determination on a motion to suppress
evidence involves a mixed question of law and fact, as to which our review is de novo.” Id.

I.     The DWI Checkpoint Was Constitutional

{8}     Defendant contends that the DWI checkpoint at which he was stopped was not
constitutional under New Mexico law. This Court has held that a sobriety checkpoint is a
seizure. See State v. Bates, 1995-NMCA-080, ¶ 9, 120 N.M. 457, 902 P.2d 1060 (stating
“there is no question that a [checkpoint] is a seizure”). However, “a DWI [checkpoint], at
which drivers are stopped without probable cause or reasonable suspicion, is not a per se
violation of the Fourth Amendment to the United States Constitution; the constitutionality
of the [checkpoint] depends on whether it is reasonable.” Id. ¶ 6 (citing City of Las Cruces
v. Betancourt, 1987-NMCA-039, ¶ 9, 105 N.M. 655, 735 P.2d 1161). The ultimate question
for this Court is whether the facts and inferences before the lower courts support its
conclusion that the checkpoint was reasonable. Bates, 1995-NMCA-080, ¶ 21.

{9}     A sobriety checkpoint “is constitutionally permissible so long as it is reasonable
within the meaning of the [F]ourth [A]mendment as measured by its substantial compliance
with [eight factors].” Betancourt, 1987-NMCA-039, ¶ 16. The eight Betancourt factors are:
(1) the role of supervisory personnel, (2) restrictions on the discretion of field officers, (3)
safety, (4) reasonable location, (5) time and duration, (6) indicia of official nature of the
checkpoint, (7) length and nature of detention, and (8) advance publicity. Id. ¶ 13. “[A]
sobriety checkpoint conducted in substantial compliance with the eight Betancourt factors
is [also] constitutional under the New Mexico Constitution.” State v. Madalena, 1995-
NMCA-122, ¶ 26, 121 N.M. 63, 908 P.2d 756.

{10} At trial, following the testimony of Sergeant Lecompte, which focused on the details
of the tact plan, approval of the tact plan by his supervisor, restrictions on the discretion of

                                               3
field officers, and BCSO’s efforts to ensure widespread advance publicity, the State moved
the metro court to find the checkpoint constitutional under Betancourt. Defendant objected,
arguing that three of the factors had not been met. Specifically, Defendant challenged the
safety of the checkpoint, the reasonableness of the checkpoint’s location, and whether there
was advance publicity. The metro court heard Defendant’s argument and the State’s response
and concluded that the checkpoint was constitutional. Later in the trial, Defendant renewed
his challenge to the constitutionality of the checkpoint, arguing that the discretion of the field
officers was not adequately constrained. The metro court again ruled that the checkpoint was
reasonable and constitutional. The district court affirmed. We address each challenged
Betancourt factor in turn.

A.      Safety

{11} First, Defendant argues that the checkpoint was unsafe due to its location west of the
bridge over the Rio Grande River. According to Defendant, the first checkpoint-related
signage—a sign warning drivers to “reduce speed”—was located at the apex of the bridge,
and the entirety of the checkpoint was not visible to westbound drivers prior to reaching the
top of the bridge. Defendant testified at trial that another vehicle drove straight through the
checkpoint presumably in an attempt to avoid being stopped. Defendant also points out that
emergency maneuvers were limited by the nature of the bridge and by oncoming eastbound
traffic and asserts that several vehicles attempted to avoid the checkpoint by making U-turns
over the median on the bridge.

{12} The State responds by stressing that the “reduced speed” sign was followed by
additional signage, cones, and flashing lights from marked police vehicles, and that the
checkpoint site itself included signage, flashing lights, overhead lighting from the
BATmobile, and officers wearing reflective vests. The State also argues that there was “no
testimony that any officer or motorist was injured or involved in a vehicle collision” and that
“Defendant’s argument is premised on the actions of one motorist who attempted to evade
the checkpoint,” highlighting that such evasion is not necessarily indicative of the
checkpoint’s safety, but rather of the mind-set of the driver of the vehicle, as noted by the
district court in its memorandum opinion. See State v. Anaya, 2009-NMSC-043, ¶ 15, 147
N.M. 100, 217 P.3d 586 (“Evading a marked DWI checkpoint is a specific and articulable
fact that is sufficient to predicate reasonable suspicion for an investigatory stop.”).

{13} We note that there was testimony that the bridge over the Rio Grande River has a
slight, “roughly” one percent grade and that two photographs of the checkpoint location were
entered into evidence at trial. In light of the facts outlined above and the evidence presented
to the metro court, we conclude no error in the metro court’s determination that the safety
factor was substantially complied with. See Bates, 1995-NMCA-080, ¶ 25 (weighing
reasonableness in favor of the state where there were warning signs ahead of the checkpoint
and a separate, lighted area for secondary investigations).

B.      Reasonable Location

                                                4
{14} Second, Defendant contends that the checkpoint’s location was not reasonable.
Sergeant Lecompte testified that he chose the location based upon DWI arrest statistics from
past checkpoints conducted there. Defendant asserts that the location’s “detection value” is
questionable given the fact that no arrests were made during the most recent checkpoint at
that location. We agree with the State, however, that the lack of arrests during the previous
checkpoint could tend to demonstrate the successful deterrent effect of placing sobriety
checkpoints at that particular location. Furthermore, while Betancourt made it clear that “a
location chosen with the actual intent of stopping and searching only a particular group of
people, i.e., Hispanics, [B]lacks, etc., would not be tolerated[,]” there was no evidence
produced at trial to indicate any such discriminatory purpose, and Defendant does not argue
that there was such a purpose. 1987-NMCA-039, ¶ 13. We conclude that Sergeant
Lecompte’s testimony was sufficient to establish that the checkpoint location was selected
on the basis of prior arrest statistics and on the successful deterrent effect of past checkpoints
at the same location, and therefore supported the trial court’s determination that the
checkpoint was reasonable. See id. ¶ 11 (“The need to deter, detect[,] and remove drunk
drivers from the public highways weighs heavily in favor of the state.”).

C.      Advance Publicity

{15} Third, Defendant argues that the advance publicity factor was not met, based on the
fact that the officer who was responsible for faxing notice to the media did not testify at trial.
Although Sergeant Lecompte testified that the other officer faxed notice to several media
outlets on January 16, 2012, Defendant contended that Sergeant Lecompte did not have
personal knowledge regarding whether the media actually received notice and also that a
four-day notice was not sufficient. While Defendant maintains that no actual confirmation
receipt of the faxes were received from any media outlet, it appears from Sergeant
Lecompte’s testimony that fax confirmation sheets were included in the tact plan submitted
to his supervisor, reflecting that the faxes successfully went through to “several different
media outlets.” The metro court found that this factor was complied with by ruling that the
checkpoint was constitutional. The district court, however, expressed that “[t]he State’s
failure to provide proof that the media was actually notified causes the [c]ourt some
concern[.]” Nevertheless, given our conclusions in this opinion on the remaining Betancourt
factors, we need not resolve the differing perspectives of the metro and district courts
regarding whether BCSO’s attempt to generate advance publicity of this checkpoint satisfies
the final Betancourt factor. See State v. Swain, 2016-NMCA-024, ¶¶ 12-13, 366 P.3d 711
(“Based on our longstanding [caselaw], a lack of advance publicity, without more, is simply
not sufficient to find that a DWI checkpoint constitutes an illegal seizure.”); see also Bates,
1995-NMCA-080, ¶ 26 (“Whether or not there is advance publicity is not dispositive of the
reasonableness of a DWI [checkpoint].”).

D.      Restrictions on the Discretion of Field Officers

{16} After the metro court found the checkpoint to be constitutional under Betancourt,
Sergeant Perea took the stand. During voir dire by defense counsel, Sergeant Perea stated

                                                5
that his contact with Defendant—prior to removing Defendant from his vehicle to perform
standardized FSTs—extended to somewhere between two and three minutes, included the
giving of a “seated” HGN test, and “possibly” or “could have” included additional
conversation. Defendant then renewed his objection to the constitutionality of the
checkpoint, arguing that Sergeant Perea’s testimony established that he was not limited in
his discretion, as required by the second Betancourt factor. The metro court found that
conducting the seated HGN test, as well as not doing the same with other motorists, “did
widen the scope and was beyond the discretion of the stopping officer at that point,” but the
court ultimately concluded that the totality of the circumstances weighed against suppression
of the evidence.

{17} For its part, the district court observed that a constitutionally reasonable checkpoint
serves as an adequate substitute for reasonable suspicion and “can justify the stop and initial
inquiry.” An officer would then be permitted to expand the scope of the stop if he had
reasonable and articulable suspicion of criminal activity. State v. Leyva, 2011-NMSC-009,
¶ 10, 149 N.M. 435, 250 P.3d 861. Importantly, this is the reasoning that undergirds the
operation of sobriety checkpoints such as the one in question. Specifically, the tact plan
guidelines here provided the officers with 15-30 seconds in which to observe the driver’s
condition and to ask about prior alcohol or drug consumption. The officer’s observations,
as well as the driver’s answers to the initial inquiry, could then provide the officer with
reasonable suspicion to support detaining the driver for additional investigation. See id. The
district court in this case concluded that Sergeant Perea had reasonable suspicion based on
his observation of Defendant and Defendant’s affirmative answer to having consumed
alcohol. See State v. Walters, 1997-NMCA-013, ¶ 26, 123 N.M. 88, 934 P.2d 282 (holding
that an officer acting in a community caretaker role had reasonable suspicion to investigate
further after the officer spoke to the defendant and detected the odor of alcohol).

{18} Notably, Defendant does not appear to challenge the determination that Sergeant
Perea had reasonable suspicion to expand the checkpoint stop into a full-blown DWI
investigation. Instead, he takes issue with the fact that Sergeant Perea had some additional
conversation with him and conducted the seated HGN test instead of immediately removing
him from his truck to undergo the full battery of FSTs. Thus, it appears that Defendant is
arguing that Sergeant Perea’s deviation from the tact plan guidelines—by not immediately
removing Defendant from his vehicle—rendered the checkpoint unconstitutional. The
district court agreed that the additional conversation and the abbreviated HGN test were not
part of the script, but relying on State v. Duarte, 2007-NMCA-012, 140 N.M. 930, 149 P.3d
1027, determined that these actions did not unreasonably expand the stop, nor were they
more invasive than removing Defendant from his vehicle to perform FSTs, which was the
next step in the tact plan. See id. ¶ 39 (declining to “fix a deviation from a script of questions
as a constitutional infirmity, without contemporaneous inquiry more broadly into the
invasiveness and intrusion of the contact”).

{19} Defendant contends that the metro court and the district court read Duarte too
broadly. Defendant attempts to distinguish Duarte by stressing the “very limited scope of

                                                6
permitted ‘initial contact’ ” in the present case and by stating that Sergeant Perea’s “breach
does not compare with the breach of procedure described in Duarte[] that was found ‘too
insubstantial to constitute constitutional harm.’ ” We observe, however, that in specifically
addressing the issue of the constitutional propriety of departures from a pre-approved script,
Duarte stated, “[w]hat makes this a viable issue is the unique substitution of a properly
implemented [checkpoint] for the requirement of individualized suspicion.” Id. ¶¶ 35, 38.
We are cautioned by Duarte that it is the “elimination of the requirement for individualized
suspicion” that creates the “serious concern about lack of uniformity and need for limitation
of discretion.” Id. But in Duarte, the deviation from the script occurred during the initial
questioning of the driver and before the officer had reasonable suspicion that the driver had
committed a crime. Id. ¶ 27. In the present case, Sergeant Perea had reasonable suspicion
that Defendant was driving while intoxicated before any purported deviation from the tact
plan. As such, the Duarte court’s “fear of unrestricted discretion in questioning, and the
invidious, intrusive invasion of privacy that can occur from such discretion” was not present
in this case. Id. ¶ 38. Consequently, we conclude that the presence of reasonable suspicion
following the initial contact justified further detention for additional investigation,
notwithstanding Sergeant Perea’s subsequent deviation from the tact plan guidelines. Cf.
State v. Villas, 2002-NMCA-104, ¶ 10, 132 N.M. 741, 55 P.3d 437 (recognizing that
“[u]nder the New Mexico Constitution, after the checkpoint stop, a police officer cannot
further detain a motorist without reasonable suspicion of criminal activity”); Brown v. Texas,
443 U.S. 47, 51 (1979) (stating that “the Fourth Amendment requires that a seizure must be
based on specific, objective facts indicating that society’s legitimate interests require the
seizure of the particular individual, or that the seizure must be carried out pursuant to a plan
embodying explicit, neutral limitations on the conduct of individual officers” (emphasis
added)).

E.      Other Betancourt Factors

{20} Finally, to the extent that Defendant is challenging the supervisory personnel factor
and the length and nature of detention factor on appeal, we observe that these factors were
not challenged in the metro court. Consequently, we conclude that Defendant’s arguments
on these factors were not preserved for appeal. See State v. Varela, 1999-NMSC-045, ¶ 25,
128 N.M. 454, 993 P.2d 1280 (stating that “[i]n order to preserve an error for appeal, it is
essential that the ground or grounds of the objection or motion be made with sufficient
specificity to alert the mind of the trial court to the claimed error or errors, and that a ruling
thereon then be invoked” (internal quotation marks and citation omitted)).

{21} Therefore, because sufficient evidence was produced at trial to establish that the DWI
checkpoint in this case substantially complied with all of the Betancourt factors, perhaps
with the exception of advance publicity, we conclude that the metro court did not err in
finding the checkpoint to be constitutional.

II.     The Metro Court Abused Its Discretion by Admitting the Breath Card Into
        Evidence

                                                7
{22} Defendant argues that his breath test results should not have been admitted for two
reasons: (1) he presented evidence tending to show that the annual proficiency tests on the
Intoxilyzer 8000 had not been conducted, and (2) the required twenty-minute deprivation
period was not conducted prior to his breath test.

A.      Proficiency Testing

{23} We observed in State v. Hobbs, 2016-NMCA-022, ¶ 1, 366 P.3d 304, cert. denied,
2016-NMCERT-002, ___ P.3d ___ that the Scientific Laboratory Division of the Department
of Health (SLD) has administrative authority over blood and breath tests administered to
persons suspected of driving under the influence of intoxicants. See NMSA 1978, § 24-1-22
(2003). Under its authority, the SLD has promulgated regulations under the New Mexico
Administrative Code 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 New Mexico Implied Consent Act,
[NMSA 1978, § 66-8-107(B) (1993)].” 7.33.2.2 NMAC.

{24} At issue in this case is the certification of the Intoxilyzer 8000 used to measure
Defendant’s breath alcohol level. See 7.33.2.10(A) NMAC (“Any breath alcohol instrument
to be used for implied consent evidential testing must be approved and certified by SLD.”);
see also State v. Onsurez, 2002-NMCA-082, ¶ 13, 132 N.M. 485, 51 P.3d 528 (“[T]he [s]tate
must show that the machine used for administering a breath test has been certified by
SLD.”).

{25} In State v. Martinez, 2007-NMSC-025, ¶¶ 9, 11-12, 23, 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
went on to state that this foundational requirement can be 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. 2007-
NMSC-025, ¶ 23. In the present case, Sergeant Perea testified in the metro court that the
Intoxilyzer 8000 used to measure Defendant’s breath alcohol level was certified by SLD. He
testified that he observed the Martinez sticker reflecting that the date of Defendant’s test was
within the date range of the machine’s certification.

{26} However, Martinez also held that “a defendant may be able to critically challenge an
officer’s foundational testimony concerning certification” based on information obtained
during discovery. Id. ¶ 24. In this case, Defendant presented documentation obtained from
SLD via subpoena indicating that SLD had no information available regarding proficiency
tests conducted on the Intoxilyzer 8000 used to test Defendant’s breath for the current
certification year (2011-2012). Defendant also subpoenaed the proficiency testing
documentation for the preceding period (2010-2011), but SLD’s response did not mention

                                               8
or include such documentation. Defendant informed the court at trial that SLD “never
responded to [the] 2010-2011 request.” Therefore, we must presume none existed. Defendant
used this information to challenge the officer’s threshold showing that the BAT machine was
certified under the SLD regulations and to argue for the inadmissibility of the breath results.

{27} The State argued in the metro court that the section of the SLD regulations dealing
with proficiency testing does not set out a mandatory requirement. Instead, relying on the
presence of the word “should” in the applicable section of the regulation, the State argued
that failure to analyze proficiency samples does not affect the certification of the breath
alcohol instrument. See 7.33.2.10(B)(1)(b) NMAC (“Four proficiency samples should be
analyzed yearly on each such certified instrument.”). The metro court agreed with the State’s
position. The district court affirmed, noting in a footnote that the previous version of the
regulation, 7.33.2.11(G)(2) NMAC (2001), specifically stated that “[c]ertification of the
breath alcohol testing instruments shall be dependent upon the following . . . Satisfactory
performance on the requisite proficiency testing. Six (6) proficiency samples should be
analyzed yearly on each such certified instrument.” Although the proficiency test language
is couched under “[c]ontinuing responsibilities” within the current version of the regulation,
the district court concluded that removal of the previous mandatory language, “shall be
dependent upon the following,” made the proficiency tests no longer mandatory. Compare
7.33.2.10(B) NMAC, with 7.33.2.11 NMAC (2001).

{28} In Martinez, the Court held that the SLD regulations governing certification of a
BAT machine are accuracy-ensuring. 2007-NMSC-025, ¶ 11. After listing a number of
requirements for certification under the 2001 version of the regulations, including two yearly
calibration tests, an annual inspection by SLD, monthly submission of records pertaining to
all tests conducted on the machine, satisfactory performance of six yearly proficiency
samples, and a calibration check at least every seven days and/or a 0.08 calibration check
conducted on each subject, the Court held that before a BAT card is admitted into evidence,
the State must make a threshold showing that the machine has been certified. Id. ¶¶ 11-12.

{29} In Hobbs, this Court—interpreting the current version of the regulation—noted that
the “certification requirements for instruments are extensive.” 2016-NMCA-022, ¶ 16. We
observed that an instrument must obtain initial certification, that must then be renewed
annually based on compliance with the 7.33.2.10. NMAC. Hobbs, 2016-NMCA-022, ¶ 16.
We further noted that the regulation “contains numerous continuing requirements for
individual instruments, including . . . annual analysis of four proficiency samples[.]” Id.
Among the other requirements listed in the “[c]ontinuing responsibilities” section of the
current version of the regulation are: submission of logbooks and records at scheduled times;
calibration checks at least once every seven days or with each subject test or both; and
biannual inspections of the machine at SLD. Id.; see also 7.33.2.10(B)(1). In other words,
our jurisprudence permitting the admissibility of breath test results does so based upon
ongoing accuracy-ensuring processes that guard against inconsistent, varying, and erroneous
results. Despite its use within 7.33.2.10(B)(1)(b), the word “should” does not precede the
process for admissibility of breath test results and the requirement that they are produced by

                                              9
a properly certified device established in applicable caselaw. In light of our regulatory
interpretation in Hobbs and the principle set forth in Martinez, we conclude that satisfactory
performance on four annual proficiency tests is titled “[c]ontinuing responsibilities” for a
reason and remains a mandatory accuracy-ensuring requirement for certification under the
current version of the regulation.

{30} Because the metro court—based on its erroneous understanding that the proficiency
tests are not mandatory under the SLD regulations—failed to consider whether Defendant
sufficiently challenged the admissibility of the breath test results, it abused its discretion in
admitting the results. See State v. Favela, 2013-NMCA-102, ¶ 16, 311 P.3d 1213 (“An abuse
of discretion may . . . occur when the district court exercises its discretion based on a
misunderstanding of the law.” (internal quotation marks and citation omitted)). However,
we do not determine as a matter of law that Defendant’s challenge to the admissibility of the
breath test results—through a document indicating that SLD does not have available records
of the required proficiency tests for this particular machine—serves to defeat the State’s
threshold showing. Rather, we reverse and remand to the metro court in order for it to reach
a determination that incorporates consideration of both the evidence produced by Defendant
and Sergeant Perea’s testimony that he observed a sticker indicating that the machine was
certified by SLD on the date in question. See State v. Willie, 2009-NMSC-037, ¶ 12, 146
N.M. 481, 212 P.3d 369 (holding that whether a regulation relating to breath tests has been
satisfied is a factual determination to be made by the trial court, that must be satisfied by a
preponderance of the evidence).

B.      Deprivation Period

{31} 7.33.2.15(B)(2) NMAC provides that “[b]reath [samples] shall be collected only after
the certified operator or certified key operator has ascertained that the subject has not had
anything to eat, drink[,] or smoke for at least twenty minutes prior to the collection of the
first breath sample.” In Willie, our Supreme Court held that the evidence was sufficient to
satisfy the deprivation requirement when the defendants were restrained for nearly an hour
after arrest “in such a way that it would be unlikely that they could have eaten, drunk, or
smoked anything” even though they were not observed continuously. Willie, 2009-NMSC-
037, ¶ 16.

{32} In this case, Sergeant Perea handcuffed Defendant and placed him in the BATmobile.
Although Sergeant Perea left the room for a few moments to retrieve a laptop computer, he
left Defendant with another officer. We agree, therefore, with the metro court and the district
court that there was sufficient testimony to prove by a preponderance of the evidence that
Defendant did not eat, drink, or smoke anything during that time frame and that the 20-
minute deprivation period was satisfied.

III.    Defendant’s Conviction Was Supported by Sufficient Evidence

{33}    Defendant argues that the breath test results—indicating that his breath alcohol level

                                               10
was 0.10/0.10, above the per se limit of 0.08—were not reliable, and consequently, the
evidence presented at trial was insufficient to support his conviction. Specifically, Defendant
contends that the lack of proficiency testing and the “suspect” compliance with the
deprivation period combine to result in inadequately reliable BAT. In support, Defendant
points to State v. King, 2012-NMCA-119, ¶ 16, 291 P.3d 160, where this Court recognized
that “[t]he [I]ntoxilyzer reading, even though the machine has been approved by the SLD,
and operated and maintained in accordance with the SLD regulations, is not conclusive
evidence of the offense. Nor is it conclusive evidence of the reliability of the test results.”
We acknowledge that a defendant may challenge the reliability of a BAT machine’s reading,
and we note that Defendant has conducted such a challenge in this case, pointing to issues
with verifying whether proficiency tests had been conducted and whether the twenty-minute
deprivation period was complied with.

{34} On appeal, the appellate court views the evidence in the light most favorable to the
verdict, resolving all conflicts and indulging all reasonable inferences in favor of the verdict.
State v. Apodaca, 1994-NMSC-121, ¶ 3, 118 N.M. 762, 887 P.2d 756. As stated earlier in
this opinion, we have determined that the metro court did not err in concluding that the
deprivation period was met. We have further observed that evidence was presented that there
was documentation on this particular Intoxilyzer 8000 indicating that it was certified by SLD
on the date of the tests in question. As such, we conclude that there was sufficient evidence
to support Defendant’s conviction for per se DWI, notwithstanding Defendant’s attack on
the reliability of the machine. See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986
P.2d 482 (recognizing that it is for the fact-finder (in this case, the judge) to resolve any
conflict in the testimony of the witnesses and to determine where the weight and credibility
lie).

CONCLUSION

{35} For the foregoing reasons, we conclude that the DWI checkpoint at which Defendant
was stopped was constitutional. We further conclude that the 20-minute deprivation period
was met and that the BAT results—0.10/0.10—constituted sufficient evidence to support
Defendant’s conviction for per se DWI. However, because the metro court admitted the
breath results based on its erroneous determination that the annual proficiency tests were not
required by SLD regulation, we reverse and remand to the metro court for a new trial.

{36}    IT IS SO ORDERED.

                                                ____________________________________
                                                J. MILES HANISEE, Judge

WE CONCUR:

____________________________________
MICHAEL E. VIGIL, Chief Judge

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____________________________________
JONATHAN B. SUTIN, Judge




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