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     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum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

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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 32,489

 5 TIMOTHY CASTILLO,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Karen L. Townsend, District Judge


 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Acting Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2   {1}   Defendant, Timothy Castillo, appeals from his conviction on one count of

 3 driving while under the influence of intoxicating liquor (DWI). [DS 1, RP 235] He

 4 contends the district court erred in refusing to instruct the jury on the defense of

 5 duress and in admitting into evidence the written certification of the Intoxilyzer used

 6 to perform Defendant’s breath alcohol test on the date of his arrest. [DS 2] We issued

 7 a notice proposing to summarily affirm and Defendant filed a memorandum in

 8 opposition. We remain unpersuaded by Defendant’s arguments and affirm.

 9 BACKGROUND

10   {2}   On July 25, 2010, Defendant and his girlfriend, Lorenda Etcitty, traveled to

11 Shiprock, New Mexico, to visit Etcitty’s family at Etcitty’s mother’s house. [MIO 1]

12 Defendant and Etcitty got into an argument while making dinner. [MIO 2] Some of

13 Etcitty’s relatives confronted Defendant about the argument. [MIO 2] Etcitty’s sister

14 pointed a shotgun at Defendant and Etcitty told them they had to leave. [MIO 2]

15 Defendant and Etcitty left the house in Defendant’s car, heading towards Shiprock.

16 [MIO 3]

17   {3}   Officer Tolth stopped Defendant’s vehicle approximately four or five miles

18 from Etcitty’s mother’s house in response to an “attempt to locate.” [MIO 3, RP 24-

19 29] Defendant testified that he was stopped within five minutes of leaving the house;


                                              2
 1 Defendant’s girlfriend testified that they had been traveling for five to twenty-five

 2 minutes prior to being stopped. [MIO 3] Defendant told Officer Tolth that they were

 3 driving back to Albuquerque. [MIO 3] Defendant admitted to drinking five or six

 4 beers and four bottles of beer were found in the passenger compartment of his vehicle.

 5 [RP 26, 28] Defendant took a breath alcohol test, which registered a blood alcohol

 6 level of .08. [MIO 4, RP 27]

 7   {4}   Defendant was charged with two counts: (1) DWI (first offense), and (2) open

 8 container. He was convicted of both counts in the magistrate court and appealed to

 9 the district court. [RP 1, 19, 20] A de novo trial was held in district court. [RP 167]

10 The district court granted Defendant’s motion for a directed verdict on the open

11 container charge. [RP 198, 235] The district court denied Defendant’s request to

12 instruct the jury on the defense of duress. [RP 200] The jury found Defendant guilty

13 of DWI and the district court entered judgment, sentence, and order of remand to the

14 magistrate court. [RP 233, 235]

15 DISCUSSION

16   {5}   Defendant raises two issues on appeal, which we review in turn.

17 A.      Jury Instruction

18   {6}   Defendant continues to argue that the district court erred in refusing to instruct

19 the jury on the defense of duress. [MIO 5] Our standard of review is as follows:


                                               3
 1         The propriety of jury instructions is a mixed question of law and fact.
 2         When considering a defendant’s requested instructions, we view the
 3         evidence in the light most favorable to the giving of the requested
 4         instructions. Viewing the facts in that manner, we review the issue
 5         de novo. When evidence at trial supports the giving of an instruction on
 6         a defendant’s theory of the case, failure to so instruct is reversible error.

 7 State v. Ramirez, 2008-NMCA-165, ¶ 4, 145 N.M. 367, 198 P.3d 866 (alteration,

 8 internal quotation marks, and citations omitted).

 9   {7}   In State v. Rios, we held that the defense of duress is available in DWI cases.

10 1999-NMCA-069, ¶ 28, 127 N.M. 334, 980 P.2d 1068. We noted, however, that

11 “[w]e must approach the application of this defense to DWI charges with care so as

12 not to vitiate the protectionary purpose of the strict liability statute.” Id. ¶ 16

13 (alteration, internal quotation marks, and citation omitted). We thus adopted a narrow

14 articulation of the duress defense in DWI cases, under which a defendant must

15 produce sufficient evidence that:

16         (1) he was under an unlawful and imminent threat of death or serious
17         bodily injury; (2) he did not recklessly place himself in a situation that
18         would likely compel him to engage in the criminal conduct; (3) he did
19         not have a reasonable legal alternative (in other words, he could not have
20         reasonably avoided the threatened harm or the criminal conduct in which
21         he engaged); and (4) a direct causal relationship existed between the
22         criminal action and the avoidance of the threatened harm.

23 Id. ¶ 17 (quoting State v. Baca, 114 N.M. 668, 674-75, 845 P.2d 762, 768-69 (1992)).

24 “The keystone of the analysis is that the defendant must have no alternative – either



                                                4
 1 before or during the event – to avoid violating the law.” Rios, 1999-NMCA-069, ¶ 17

 2 (alteration, internal quotation marks, and citation omitted).

 3   {8}    The district court denied Defendant’s request to instruct the jury on the defense

 4 of duress because the district court judge concluded that Defendant did not produce

 5 sufficient evidence that he had no reasonable legal alternative to driving while

 6 intoxicated. [RP 200] We proposed to affirm, noting Defendant was driving from

 7 five to twenty-five minutes prior to being stopped and there was no evidence he was

 8 being followed.

 9   {9}    In his memorandum in opposition, Defendant argues “there was sufficient

10 evidence that a reasonable juror could conclude that [Defendant] had no reasonable

11 alternative to his actions.”      [MIO 5]        Defendant contends that our proposed

12 disposition “does not give sufficient weight to the ‘light most favorable to the

13 instruction’ standard of review.” [MIO 5] He acknowledges that there was no

14 evidence that Defendant was being followed, but argues that this “[does] not establish

15 that [Defendant] and his girlfriend were out of danger.” [MIO 6]

16   {10}   We disagree.     The evidence reflects that Etcitty’s sister simply wanted

17 Defendant and Etcitty to leave the house. There was no evidence that Defendant was

18 being followed, and there was no other evidence that Defendant was in danger after

19 leaving the house. Defendant had been driving for at least five minutes when he was


                                                5
 1 stopped, and he told Officer Tolth that he was driving to Albuquerque. Viewing the

 2 evidence in the light most favorable to giving the duress instruction, we conclude that

 3 the evidence does not meet the narrow articulation of the duress defense, as set forth

 4 in Rios and Baca. See Rios, 1999-NMCA-069, ¶ 27; Baca, 114 N.M. at 674-75. We

 5 thus conclude that the district court did not err in refusing to instruct the jury on the

 6 defense of duress.

 7 B.       Admission of Intoxilyzer Certificate

 8   {11}   Defendant continues to argue that the district court erred in admitting into

 9 evidence the written certification of the Intoxilyzer used to measure his blood alcohol

10 level on the date of his arrest because Defendant did not have an opportunity to

11 confront the person who certified the machine. [MIO 7] Defendant cites State v.

12 Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M.

13 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), in support of his argument. [MIO 7]

14   {12}   In State v. Anaya, we held that “the scientific reliability and functionality of the

15 [breathalyzer] used to test Defendant’s breath is a foundational issue that is only

16 subject to challenge through expert testimony.” 2012-NMCA-094, ¶ 22, 287 P.3d

17 956. We explained: “Because the underlying science and functionality of the

18 [breathalyzer] bears only on the measurement to be used in conducting analytical,

19 scientific process, the scientific aspects of the breathalyzer machine are


                                                 6
1 non-testimonial and the Confrontation Clause does not apply.” Id. ¶ 25. Consistent

2 with Anaya, we conclude that the district court did not err in admitting the Intoxilyzer

3 certificate into evidence.

4 CONCLUSION

5   {13}   For the reasons stated above and in our previous notice, we affirm the judgment

6 of the district court.

7   {14}   IT IS SO ORDERED.


8                                                 ________________________________
9                                                 JAMES J. WECHSLER, Judge


10 WE CONCUR:


11 ________________________________
12 M. MONICA ZAMORA, Judge


13 ________________________________
14 J. MILES HANISEE, Judge




                                              7
