 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                    NO. 28,299

10 JERRY RUDOLPH,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
13 Eugenio S. Mathis, District Judge


14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Jacqueline R. Medina, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Will O’Connell, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant


23                                 MEMORANDUM OPINION
 1 CASTILLO, Judge.

 2        Defendant appeals his conviction for per se driving while under the influence

 3 (DWI), contrary to NMSA 1978, Section 66-8-102(C)(1) (2005) (amended 2008).

 4 Defendant contends that because the State did not prove that his blood alcohol

 5 concentration (BAC) exceeded .08 at the time of driving, the jury’s guilty verdict is

 6 not supported by sufficient evidence. We agree with Defendant and accordingly

 7 vacate his conviction.

 8 I.     BACKGROUND

 9        The following facts were presented at trial. At 12:17 a.m. on February 15,

10 2007, an officer received a tip that involved a possible drunk driver in a white pickup

11 truck. The officer observed Defendant driving a vehicle that matched the description

12 and followed Defendant to a residence. Defendant did not use a turn signal before

13 turning into the carport of the residence. The officer pulled up directly behind

14 Defendant’s vehicle and activated his emergency lights.

15        The officer stopped Defendant before he entered the house and noticed that

16 Defendant slurred his words and smelled of alcohol. In addition, Defendant admitted

17 to drinking that night, but he refused to take the field sobriety tests. At 12:48 a.m., the

18 officer arrested Defendant for DWI. The officer then obtained a warrant for a blood

19 sample and drove Defendant to the hospital. Defendant’s blood was drawn at 2:55

                                                2
 1 a.m., and the resulting chemical analysis showed .11 BAC.

 2        At trial, the State relied solely on Defendant’s .11 BAC result to establish that

 3 his BAC was greater than .08 at the time of driving. The jury found Defendant guilty

 4 of per se DWI. Defendant appeals, arguing that there was insufficient evidence to

 5 support his conviction.

 6 II.    DISCUSSION

 7 A.     Standard of Review

 8        In reviewing a judgment for sufficiency of evidence, we examine the record to

 9 determine “whether substantial evidence of either a direct or circumstantial nature

10 exists to support a verdict of guilt beyond a reasonable doubt with respect to every

11 element essential to a conviction.” State v. Sutphin, 107 N.M. 126, 130-31, 753 P.2d

12 1314, 1318-19 (1988). Furthermore, this Court will “resolve all disputed facts in

13 favor of the [s]tate, indulge all reasonable inferences in support of the verdict, and

14 disregard all evidence and inferences to the contrary.” State v. Notah-Hunter,

15 2005-NMCA-074, ¶ 13, 137 N.M. 597, 113 P.3d 867 (internal quotation marks and

16 citation omitted). Our role is not to weigh the evidence, nor do we “substitute [our]

17 judgment for that of the fact finder so long as there is sufficient evidence to support

18 the verdict.” Sutphin, 107 NM. at 131, 753 P.2d at 1319.

19 B.     Sufficiency of the Evidence


                                              3
 1        We observe that since Defendant’s arrest in 2007, the Legislature has amended

 2 the per se DWI statute to include language prohibiting the operation of a vehicle if the

 3 person’s BAC is .08 or greater within three hours of driving. See NMSA 1978, § 66-

 4 8-102(C)(1) (2008). The version of Section 66-8-102(C)(1) that was in effect at the

 5 time of Defendant’s arrest does not include the three-hour window. We analyze

 6 Defendant’s argument, however, under the statute that was in effect at the time of the

 7 offense. See State v. Perea, 2001-NMSC-026, ¶¶ 2-3, 130 N.M. 732, 31 P.3d 1006

 8 (applying the version of the statute in effect on the date of the offense).

 9        In order for a jury to convict a defendant of per se DWI, the state must prove

10 beyond a reasonable doubt that a defendant’s BAC was at or more than .08 at the time

11 of driving. See § 66-8-102(C)(1); State v. Christmas, 2002-NMCA-020, ¶ 20, 131

12 N.M. 591, 40 P.3d 1035 (“The per se offense under Subsection C relates to the time

13 of driving.”). Thus, under the applicable version of Section 66-8-102(C)(1), the State

14 must present evidence to prove a nexus between the BAC test resulting in .08 or

15 greater and the time of driving. State v. Baldwin, 2001-NMCA-063, ¶ 8, 130 N.M.

16 705, 30 P.3d 394.

17        Defendant, relying primarily on State v. Day (Day II), 2008-NMSC-007, 143

18 N.M, 359, 176 P.3d 1091, which reversed State v. Day (Day I), 2006-NMCA-124, 140

19 N.M. 544, 144 P.3d 103, argues that because the BAC test was conducted two and


                                              4
 1 one-half hours after his arrest, retrograde extrapolation evidence was necessary to

 2 prove his BAC at the time of driving. The State acknowledges that no retrograde

 3 extrapolation testimony was presented in this case, but argues that Day II is factually

 4 distinguishable. Further, the State points to several pre-Day cases, specifically State

 5 v. Collins, 2005-NMCA-044, 137 N.M. 353, 110 P.3d 1090, superceded on other

 6 grounds by regulation as stated in State v. Willie, 2008-NMCA-030, ¶ 13, 143 N.M.

 7 615, 179 P.3d 1223; Baldwin, 2001-NMCA-063; and State v. Cavanaugh, 116 N.M.

 8 826, 867 P.2d 1208 (Ct. App. 1993), to support its position that Defendant’s BAC of

 9 .11 was excessive enough to eclipse the need for scientific retrograde evidence; thus,

10 the evidence presented at trial supported Defendant’s conviction beyond a reasonable

11 doubt.

12          We begin with a discussion of the Day cases. Then we address the State’s

13 reliance on several pre-Day cases and its assertion that Defendant’s case is factually

14 distinguishable from Day II.

15 1.       Day Cases

16          In Day I, this Court reversed the defendant’s conviction for per se DWI because

17 the state failed to present evidence linking a BAC test to the time of driving. 2006-

18 NMCA-124, ¶ 25. In that case, the officer conducted the BAC test one hour and six

19 minutes after the defendant was stopped. Id. This Court reasoned that “[t]he


                                               5
 1 relation-back endeavor is not something the jurors could rationally do without

 2 evidence of the scientific process related to the facts of the case that were necessary

 3 for an absorption-elimination analysis.” Id. Further, the Court concluded that it was

 4 the state’s burden to provide such scientific evidence in order to prove guilt beyond

 5 a reasonable doubt. Id. Elaborating, the Court stated that scientific evidence is

 6 required whenever the state wishes to connect a latter-performed BAC test with an

 7 earlier BAC. Id. Because the state did not present such scientific evidence, the

 8 defendant’s conviction could not stand. Id.

 9        In Day II, our Supreme Court considered the evidence presented at trial and

10 concluded that the defendant’s conviction was supported by substantial evidence.

11 2008-NMSC-007, ¶¶ 23, 26. Although the state did not provide an expert to testify

12 regarding retrograde extrapolation, the defendant had offered such testimony in

13 presenting his defense. Id. ¶ 26. As a result, the jury received testimony about the

14 way that the body processes alcohol and therefore had a basis on which to find that the

15 defendant’s BAC test related back to the time of driving. Id. ¶¶ 24, 25. Additionally,

16 the Day II Court limited the use of behavioral evidence—evidence of the defendant’s

17 appearance and actions—to the calculation of a scientific retrograde analysis. Id. ¶

18 32. According to Day II, behavioral evidence is not “sufficient to show the required

19 nexus between a BAC test and an earlier BAC.” Id. With Day I and Day II as


                                              6
 1 background, we turn to the State’s arguments.



 2 2.     Reliance on Collins, Baldwin, and Cavanaugh

 3        The State argues that Defendant’s BAC was excessive enough to eliminate the

 4 need for retrograde extrapolation evidence. The State first relies on State v. Collins

 5 because it was cited in Day I as support for the proposition that retrograde

 6 extrapolation evidence is not required when the BAC is ascertained immediately after

 7 driving or when the result of a later-taken BAC is extremely high. See Day I, 2006-

 8 NMCA-124, ¶ 23. Although we ultimately conclude that Day II controls in the

 9 present case, we address the State’s argument nevertheless.

10        In Collins, soon after arrest, the defendant was found to have a BAC of between

11 .17 and .18. 2005-NMCA-044, ¶ 3. He was charged with aggravated DWI, requiring

12 a BAC of .16 or above, as well as the lesser included charge of DWI, requiring a BAC

13 of only .08 or above. Id. ¶ 4. This Court concluded that the jury’s determination that

14 the BAC results did not support a conviction of aggravated DWI did not prevent the

15 jury from also finding that the BAC results were “probably indicative of a BAC

16 somewhere between .08 and .15.” Id. ¶ 51. Thus, in Collins the defendant’s BAC

17 result was so far above the .08 threshold that it was reasonable for the jury to rely on

18 the result. We observe that Collins did not consider a time delay between driving and


                                              7
 1 the administration of the test.

 2        We are not persuaded that Collins is a sufficient basis for us to alleviate the

 3 State’s burden of proof in the present case. Here, the test was administered two and

 4 a half hours after driving, and the .11 result was not nearly so high as the .17 to .18

 5 range from Collins. In addition, the delay between driving and testing was significant.

 6 This Court has previously explained that per se DWI convictions are reversed based

 7 on “a lack of relation-back evidence” when “the lapse of time between the time of

 8 driving and the time of BAC testing is at least two hours.” State v. Martinez, 2002-

 9 NMCA-043, ¶ 12, 132 N.M. 101, 45 P.3d 41. Given the length of time involved, as

10 well as the significantly lower BAC result than was present in Collins, we are not

11 persuaded that Collins and the dictum from Day I apply to the present case.

12        The State also relies on Baldwin and Cavanaugh, cases in which this Court held

13 that a jury can infer a defendant’s guilt as to DWI based on behavioral evidence

14 together with a sufficiently high BAC. See Baldwin, 2001-NMCA-063, ¶¶ 23-24

15 (reversing conviction on per se DWI because evidence of unremarkable

16 contemporaneous behavior together with a .08 BAC test taken over two hours after

17 arrest was insufficient ); Cavanaugh, 116 N.M. at 829-30, 867 P.2d at 1211-12

18 (affirming conviction of per se DWI when the defendant tested at a BAC of

19 approximately .13 one hour and forty minutes after arrest and officers testified to the


                                              8
 1 defendant’s intoxicated behavior immediately before, during, and after driving the

 2 vehicle). In the present case, the State argues that police testimony regarding

 3 Defendant’s appearance at the time of arrest at 12:48 a.m.—along with Defendant’s

 4 .11 BAC at 2:55 a.m.—is enough to permit the jury to relate Defendant’s BAC back

 5 to the time of driving. Day II, however, instructs that behavioral evidence is no longer

 6 relevant to establish the nexus between a BAC result and the time of driving. 2008-

 7 NMSC-007, ¶ 32. According to Day II, behavioral evidence only has relevance in the

 8 context of retrograde extrapolation evidence. See id. No scientific evidence was

 9 offered in the present case, and the police testimony as to Defendant’s behavior at the

10 time of driving is therefore irrelevant to establish the requisite nexus between the time

11 of the blood test and the time of driving. Thus, neither Cavanaugh nor Baldwin

12 support the State’s argument.

13 3.     Comparison of Facts in the Day Cases to the Present Case

14        The State asserts that because the Day cases dealt with a BAC of .08, instead

15 of .11 as in the instant case, the holdings are limited to cases where a defendant’s BAC

16 is “marginal.” We disagree. The Day opinions do not address a maximum BAC, and

17 we find no language in either case with the limitation suggested by the State. See

18 State v. Lewis, 2008-NMCA-070, ¶ 21, 144 N.M. 156, 184 P.3d 1050 (“[C]ases are

19 not authority for propositions not considered.” (alteration in original) (internal


                                               9
 1 quotation marks and citation omitted)). To the contrary, Day II specifically states that

 2 if an earlier BAC is to be inferred from a later BAC test result, the fact finder must

 3 have knowledge of the scientific process of how the alcohol absorption/metabolism

 4 curve works over time. 2008-NMSC-007, ¶ 31. We conclude that Day II is

 5 controlling. Because the jury here was asked to deduce a BAC based on a test result

 6 conducted two and one-half hours later, we conclude that Day II requires that

 7 scientific evidence be presented to make the connection. Without this evidence, the

 8 State failed to meet its burden to prove Defendant guilty of per se DWI beyond a

 9 reasonable doubt.

10 III.   CONCLUSION

11        Based on the above analysis, we hold that Defendant’s conviction was not

12 supported by substantial evidence, and we vacate Defendant’s conviction for per se

13 DWI.

14        IT IS SO ORDERED.

15                                                 ________________________________
16                                                 CELIA FOY CASTILLO, Judge
17 WE CONCUR:


18 ________________________________
19 ROBERT E. ROBLES, Judge




                                              10
1 ________________________________
2 TIMOTHY L. GARCIA, Judge




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