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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                    NO. A-1-CA-37306

 5 ELLIE HUE OWENS

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Martha Anne Kelly, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Caitlin C.M. Smith, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 VANZI, Chief Judge.
 1   {1}   Defendant Ellie Hue Owens appeals from his conviction for driving while under

 2 the influence of intoxicating liquor or drugs (DWI). This Court’s calendar notice

 3 proposed to summarily remand on Defendant’s ineffective assistance of counsel claim.

 4 The State filed a memorandum in opposition to the proposed disposition. We are not

 5 persuaded by the State’s arguments and remand. Because we remand, we do not

 6 address Defendant’s other issues.

 7   {2}   This Court’s calendar notice proposed to remand for ineffective assistance of

 8 counsel due to trial counsel’s failure to file a motion to suppress the results of the

 9 blood draw on the basis that the blood was drawn by an emergency medical technician

10 (EMT) at the San Juan Regional Medical Center, contrary to State v. Garcia,

11 2016-NMCA-044, 370 P.3d 791. Garcia held that under NMSA 1978, Section 66-8-

12 103 (1978), an EMT is not authorized to draw blood for the purpose of determining

13 alcohol or drug content under the Implied Consent Act (Act), NMSA 1978, Section

14 66-8-105 to -112 (1978, as amended through 2015), and the results of the test were

15 therefore inadmissible. 2016-NMCA-044, ¶ 23. Based on our holding in Garcia, we

16 proposed to conclude that the record on appeal established a prima facie case of

17 ineffective assistance of counsel warranting remand to the district court for an

18 evidentiary hearing. See State v. Dylan J., 2009-NMCA-027, ¶ 42, 145 N.M.719, 204

19 P.3d 44 (recognizing that we “limit remand to those cases in which the record on




                                             2
 1 appeal establishes a prima facie case of ineffective assistance” (quoting State v.

 2 Swavola, 1992-NMCA-089, ¶ 3, 114 N.M. 472, 840 P.2d 1238).

 3   {3}   The State argues that Defendant failed to make a prima facie showing of

 4 prejudice because he cannot demonstrate the second prong of Strickland v.

 5 Washington, 466 U.S. 668, 687 (1984), that but for counsel’s error in failing to move

 6 to suppress the blood test, the result would have been different. [MIO 5] See Dylan

 7 J., 2009-NMCA-027, ¶ 38 (stating that a defense is prejudiced if, as a result of the

 8 deficient performance, “there was a reasonable probability that . . . the result of the

 9 trial would have been different” (internal quotation marks and citation omitted).

10 Specifically, the State asserts that the result would have been the same because even

11 if the blood test had been suppressed, there was sufficient evidence for the jury to find

12 Defendant guilty under the impaired to the slightest degree theory, for which the jury

13 was also instructed. See State v. Sanchez, 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36

14 P.3d 446 (defining “under the influence” as meaning that the defendant was “less able

15 to the slightest degree, either mentally or physically, or both, to exercise the clear

16 judgment and steady hand necessary to handle a vehicle with safety to the [defendant]

17 and the public.” (alteration, internal quotation marks, and citation omitted)). [MIO 8;

18 RP 106] The State asserts there was evidence of Defendant’s slurred speech, an odor

19 of alcohol on his person, his admission to drinking, an open can of beer in his car, his



                                               3
 1 poor performance on field sobriety tests that led officers to believe he was impaired,

 2 and a presumptive breath test taken by the homeless shelter where Defendant resided

 3 confirming the presence of alcohol. [MIO 9]

 4   {4}   We propose to conclude that even considering the evidence to support

 5 impairment to the slightest degree, we cannot say that Defendant was not prejudiced

 6 by the blood draw results, which showed a blood alcohol content of 0.14. [DS 3] See

 7 State v. Gardner, 1998-NMCA-160, ¶ 21, 126 N.M. 125, 967 P.2d 465 (holding that

 8 where the only scientific evidence—blood test results—presented at trial was

 9 erroneously admitted, the court cannot say that the error is harmless despite

10 overwhelming evidence including the defendant’s erratic driving, appearance,

11 bloodshot eyes, slurred speech, the odor of alcohol, and failed field sobriety tests).

12   {5}   For all of these reasons, and those stated in the calendar notice, we remand to

13 the district court for an evidentiary hearing on Defendant’s ineffective assistance of

14 counsel claim.

15   {6}   IT IS SO ORDERED.

16                                         _______________________________
17                                         LINDA M. VANZI, Chief Judge


18 WE CONCUR:


19 ____________________________

                                              4
1 MICHAEL E. VIGIL, Judge


2 ____________________________
3 STEPHEN G. FRENCH, Judge




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