 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.

 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellant,

 9 v.                                                                           NO. 29,668

10 CHRISTOPHER HENRY,

11          Defendant-Appellee.


12 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
13 Louis E. DePauli, Jr., District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   M. Anne Kelly, Assistant Attorney General
17   Albuquerque, NM

18 for Appellant

19 Hugh W. Dangler, Chief Public Defender
20 Santa Fe, NM

21 for Appellee

22                                 MEMORANDUM OPINION

23 WECHSLER, Judge.
 1          The State appeals the district court’s grant of Defendant Christopher Henry’s

 2 motion to dismiss a charge of aggravated driving while under the influence of

 3 intoxicating liquor (DWI). This Court filed a notice of proposed summary disposition

 4 proposing to affirm on August 17, 2009. The State filed a memorandum in opposition

 5 on September 8, 2009, which we have given due consideration. We affirm the district

 6 court.

 7          The State asks whether, in a DWI case, a physical copy of the breath alcohol

 8 testing machine’s log book pages is a necessary part of the foundation for

 9 admissibility of breath test results, or whether an officer’s testimony that he had

10 inspected the log book would be sufficient. Specifically, in the present case, the

11 magistrate court suppressed the breath test results “due to the [S]tate’s inability to

12 produce copies of the log book for the RBT-IV used to test the defendant by reason

13 that the State Police no longer had the applicable log book because the Scientific Lab

14 Division had discontinued use of the RBT-IV.” [DS 2]

15          This Court “review[s] an alleged error in the admission of evidence for an abuse

16 of discretion.” State v. Martinez, 2007-NMSC-025, ¶ 7, 141 N.M. 713, 160 P.3d 894.

17 “The lower court’s ruling will be disturbed on appeal only when the facts and

18 circumstances of the case do not support [its] logic and effect.” Id. (alteration in

                                                2
 1 original) (internal quotation marks and citation omitted). We review a ruling on late

 2 discovery for abuse of discretion. State v. Duarte, 2007-NMCA-012, ¶ 14, 140 N.M.

 3 930, 149 P.3d 1027 (filed 2006). “In order to find an abuse of discretion, we must

 4 conclude that the decision below was against logic and not justified by reason.” Id.

 5 (internal quotation marks and citation omitted).

 6        In the docketing statement, the State cites Martinez as authority on the question

 7 of whether an officer’s testimony can suffice in lieu of a physical copy of the log

 8 book. [DS 3] The State’s memorandum in opposition informs us that an officer was

 9 available to testify on the scheduled day of trial regarding the status of the breath

10 testing machine. We assume without deciding that Martinez supports the State’s

11 position. We understand, however, that the magistrate court suppressed the breath test

12 evidence due to the State’s untimely disclosure of the status of the machine. [MIO 2]

13 The officer’s testimony, although it might have provided the requisite foundation if

14 allowed, would not have cured the untimely disclosure problem the magistrate court

15 intended to address. Further, as the district court later observed, the State could have

16 proceeded in magistrate court on an impaired to the slightest degree theory without

17 the breath test results, although the charge would not be for aggravated DWI. [RP 38]

18 See NMSA 1978, § 66-8-102(A), (D) (2008).


                                              3
 1        Next, the State asks whether, when a magistrate court suppresses evidence and

 2 dismisses a case, the State is permitted to refile in district court, and whether, if the

 3 State refiles a case in these circumstances, a new time limit starts under Rule 5-604

 4 NMRA. We address these two issues together. Although the docketing statement

 5 frames these issues in generic terms, we analyze them in the context of the facts of the

 6 present case.

 7        “We conduct a de novo review of the district court’s application of the

 8 six-month rule.” State v. Rayburns, 2008-NMCA-050, ¶ 7, 143 N.M. 803, 182 P.3d

 9 786. “However, we review the district court’s determination regarding questions of

10 historical fact with the deference of the substantial evidence standard.” Id.

11        Rule 6-506(B) NMRA provides: “The trial of a criminal citation or complaint

12 shall be commenced within one hundred eighty-two (182) days after whichever of the

13 following events occurs latest: (1) the date of arraignment . . . .” As of January 15,

14 2009, Rule 6-506(E) provides:

15        In the event the trial of any person does not commence within the time
16        specified in Paragraph B of this rule or within the period of any
17        extension provided in this rule, the complaint or citation filed against
18        such person may be dismissed with prejudice or the court may consider
19        other sanctions as appropriate.

20 Before January 15, 2009, the rule provided that the complaint “shall” be dismissed


                                               4
 1 with prejudice. Cf. Duran v. Eichwald, 2009-NMSC-030, ¶ 15, 146 N.M. 341, 210

 2 P.3d 238 (discussing the New Mexico Supreme Court’s amendment of Rule 5-604(F)

 3 NMRA in the same manner).

 4        In the present case, the record proper reveals the following sequence of events.

 5 Defendant was arraigned on June 11, 2008, and trial in magistrate court was

 6 eventually set for December 2, 2008. [RP 24] On the day of trial, before the trial

 7 began, Defendant moved to suppress the breath alcohol results due to the State’s

 8 failure to disclose the log book for the breath testing machine. [Id.; DS 2] The State

 9 alleges that the log book was not available because use of the RBT-IV machine had

10 been discontinued. [DS 2] The magistrate court granted Defendant’s motion, and the

11 State moved to dismiss. [Id.] The magistrate court granted the State’s motion on or

12 about December 15, 2008. [Id.] The State refiled the case in district court the same

13 day. [RP 1] The original time for trial under Rule 6-506(B) had run on December 10,

14 2008. [RP 25]

15        Defendant moved to dismiss the case in district court. [RP 24-27] The motion,

16 citing State v. Heinsen, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040,

17 acknowledged that the State had the option of refiling the case in district court as it

18 did, but also pointed out that under Heinsen, the district court could properly inquire


                                              5
 1 into the reason the State was refiling. [RP 25] The motion argued that the State had

 2 not timely disclosed evidence and that the State could have proceeded to trial on an

 3 impairment basis even without the breath alcohol results. [RP 25-26] Trial based on

 4 impairment to the slightest degree, however, could not have resulted in an aggravated

 5 DWI conviction, which is what the State appears to have sought.

 6        The facts of the present case closely resemble those in Rayburns, which the

 7 State invites this Court to reconsider. [MIO 13] There, the defendant (Rayburns)

 8 moved in limine to exclude breath test results because the state had failed to timely

 9 disclose certification of the machine. 2008-NMCA-050, ¶ 3. The magistrate court

10 granted the motion to exclude the evidence. Id. The state dismissed the charges and

11 refiled in district court. Id. ¶¶ 3, 4. The defendant argued that the state’s intent in

12 dismissing the charges was to circumvent the discovery sanction the magistrate court

13 had imposed for late disclosure. Id. ¶ 16. In affirming, we agreed that under Heinsen,

14 the state had not demonstrated a reasonable basis for dismissing and refiling the same

15 charges. Id. ¶ 17.

16        In the present case, the district court’s order of dismissal states:

17        3.    The State dismissed the [M]agistrate [C]ourt case with the intent
18        to prosecute the aggravated charge in [D]istrict [C]ourt instead of
19        proceeding on the prosecution of the case in magistrate court absent the
20        suppressed evidence on a theory of impairment which only could have

                                               6
 1        resulted in a non-aggravated DWI upon conviction;

 2        4.    The suppression of the evidence due to the fault of the State does
 3        not provide a legitimate reason for the State to circumvent the 182 day
 4        rule.

 5 [RP 38] This rationale for dismissal is essentially the same as that in Rayburns. If the

 6 State, alleged to be at fault in not providing the log book, were allowed to refile, it

 7 would avoid the effect of the magistrate court’s exclusion of that evidence from trial.



 8        In asking this Court to reconsider Rayburns, the State draws our attention to

 9 Duarte, in which the state had disclosed certification and calibration of the breath

10 machine three days and one day, respectively, before trial. 2007-NMCA-012, ¶ 13.

11 [MIO 12] This Court held that, even assuming the state had breached its duty to

12 disclose, the defendant had not shown that the outcome of his trial would have been

13 different if he had more timely received the certification and calibration information.

14 Id. ¶ 19. We note significant differences between Duarte and the present case. First,

15 in Duarte, the district court denied the motion to suppress and the defendant was

16 convicted. Id. ¶¶ 1, 7   In the present case, the magistrate court granted the motion

17 to suppress, and Defendant was never tried. Analyzing the issue of prejudice would

18 require us to speculate whether Defendant would have incurred prejudice had he gone


                                              7
1 to trial, which we decline to do. Second, Duarte did not implicate the six-month rule.

2 Finally, while in Duarte the defendant received the certification and calibration before

3 trial, in the present case, Defendant apparently never received any such information.

4

5        Finding no reason to reconsider Rayburns, we affirm the district court.

6        IT IS SO ORDERED.



7                                                _______________________________
8                                                JAMES J. WECHSLER, Judge

9 WE CONCUR:



10 ______________________________
11 CYNTHIA A. FRY, Chief Judge



12 ______________________________
13 LINDA M. VANZI, Judge




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