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          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

     STATE OF NEW MEXICO,

            Plaintiff-Appellee,

     v.                                                                                 No. 35,381

     DOMINIQUE AMPARAN,

            Defendant-Appellant.


 1 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 2 Alisa Ann Hadfield, District Judge

 3 Hector H. Balderas, Attorney General
 4 Santa Fe, NM

 5 for Appellee

 6 Bennett J. Baur, Chief Public Defender
 7 Santa Fe, NM

 8 Josephine H. Ford, Assistant Appellate Defender
 9 Albuquerque, NM

10 for Appellant


11                                 MEMORANDUM OPINION
 1 BUSTAMANTE, Judge.

 2   {1}   Dominique Amparan (Defendant) appeals from his conviction for driving under

 3 the influence of intoxicating liquor (DWI), first offense, pursuant to NMSA 1978,

 4 Section 66-8-102(A) and (C) (2010). This Court’s notice of proposed disposition

 5 proposed to affirm the district court’s judgment and memorandum opinion. [RP 90-

 6 96] We have duly considered Defendant’s memorandum in opposition and remain

 7 unpersuaded. We therefore affirm Defendant’s conviction.

 8   {2}   Defendant continues to argue that the State failed to prove beyond a reasonable

 9 doubt that the breath alcohol test (BAT) results were sufficiently reliable to prove his

10 guilt of per se DWI or that the alcohol in Defendant’s system impaired his driving to

11 the slightest degree. [DS 11; RP 67] Defendant argues that because his breath test

12 results of .09/.09 were within the allowable margin of error of .07 to .09, his actual

13 results could have been below .08, and questions about the accuracy-ensuring

14 procedures became more important than they would be if his breath score had been

15 .14, for example. [MIO 2] Defendant also asserts that because he provided an

16 insufficient sample five times before providing a sufficient sample, and no air blanks

17 were run after these failed attempts, the reliability of his BAT results was

18 compromised. [MIO 2] Defendant contends that while the officer testified that the

19 machine appeared to be working and a valid sample was obtained within three minutes


                                              2
 1 as required, he did not testify that the tubing was clear of alcohol between the

 2 unrecorded partial samples and the one that was recorded and used to convict him, and

 3 for this reason, the BAT card was inadmissible. [MIO 3-4] Alternatively, Defendant

 4 argues that a person of reasonable caution would not have reached a “subjective state

 5 of near certitude” that his breath alcohol content was .08 or higher. [MIO 4] See State

 6 v. Maes, 2007-NMCA-089, ¶ 12, 142 N.M. 276, 164 P.3d 975 (“To support a

 7 conviction under a beyond a reasonable doubt standard, the evidence and inferences

 8 drawn from that evidence must be sufficiently compelling so that a hypothetical

 9 reasonable factfinder could have reached a subjective state of near certitude of the

10 guilt of the accused.” (internal quotation marks and citation omitted)).

11   {3}   As the officer testified and as the State acknowledged, the regulations only

12 require that blanks be run between any subject sample and calibration sample. [DS 5-

13 6; MIO 3] See 7 NMAC 7.33.2.14(C)(2) (2010) (“The minimum requirements for an

14 evidential breath sample for implied consent testing are: (a) a system blank analysis

15 shall be used preceding each breath sample[.]”). The officer testified that a person has

16 three minutes in which to provide a valid, sufficient sample for testing [DS 9], and that

17 what Defendant did was perfectly proper. [DS 9] Defendant provides no authority, by

18 way of either case law or regulations, to indicate that the results were inadmissible.

19 State v. Martinez, 2007-NMSC-025, ¶ 21, 141 N.M. 713, 160 P.3d 894. (“When


                                               3
 1 considering whether the result of a BAT is reliable enough to be entered into evidence,

 2 Rule 11-104(A) governs and Rule 11-104(B) does not. The admission of evidence

 3 based on its reliability or lack thereof is a policy-based decision the judge, and the

 4 judge alone, makes.”). To the extent Defendant continues to argue that the lack of any

 5 information on the BAT card to reflect the aborted samples casts doubt on the validity

 6 and accuracy of the results, that goes to the weight to be given the BAT results and not

 7 their admissibility. See State v. Christmas, 2002-NMCA-020, ¶12, 131 N.M. 591, 40

 8 P.3d 1035 (concluding “that any discrepancy in regard to the validity of [the

 9 d]efendant’s breathalyzer results went to the weight of the evidence to be considered

10 by the jury”); see also State v. Anderson, 1994-NMSC-089, ¶ 66, 118 N.M. 284, 881

11 P.2d 29 (recognizing questions concerning test results or statistical probabilities go

12 to the weight of the evidence and are the concerns of the fact finder). And defense

13 counsel properly questioned the BAT results and argued that the totality of the

14 evidence cast doubt at least on the accuracy and weight they should be given. [MIO

15 2]

16   {4}   Defendant also continues to argue that the State failed to produce substantial

17 evidence of impairment. [MIO 4-5] However, because we affirm on the basis of the

18 BAT results, we do not reach Defendant’s challenge to the sufficiency of evidence

19 under the impaired to the slightest degree standard. For the reasons stated in the


                                              4
1 district court’s memorandum opinion, this Court’s notice of proposed disposition, we

2 affirm.

3   {5}   IT IS SO ORDERED.


4                                   _______________________________________
5                                   MICHAEL D. BUSTAMANTE, Judge

6 WE CONCUR:


7
8 JONATHAN B. SUTIN, Judge


 9
10 STEPHEN G. FRENCH, Judge




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