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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 vs.                                                                         NO. 31,898

 5 MARTIN MOLINA,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 Steven L. Bell, District Judge

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

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender
13 Eleanor Brogan, Assistant Appellate Defender
14 Santa Fe, NM


15                                 MEMORANDUM OPINION

16 GARCIA, Judge.
 1        Molina (Defendant) appeals his conviction for driving while intoxicated. In our

 2 notice of proposed summary disposition, we proposed to affirm. Defendant has filed

 3 a memorandum in opposition, which we have duly considered. As we are not

 4 persuaded by his arguments, we affirm.

 5 Expansion of the Scope of the Stop

 6        Defendant contends that the district court did not “correctly apply the law when

 7 the Defendant could not perform any of the field sobriety tests but the State Police

 8 officer decided to expand his search and acquire a blood test.” [DS unnumbered page

 9 10] In our notice of proposed summary disposition, we proposed to hold that this

10 issue had not been preserved for appellate review, and that, if it had been preserved

11 we would nevertheless find no error. Defendant responds that the argument was

12 preserved.

13        We will assume, without deciding, that Defendant properly preserved this

14 argument. Nevertheless, we find no error. Although it is true that under the New

15 Mexico Constitution, a police officer cannot expand an investigatory stop beyond the

16 initial reason for the stop in the absence of reasonable suspicion for further inquiries,

17 see State v. Leyva, 2011-NMSC-009, ¶ 55, 149 N.M. 435, 250 P.3d 861, here, as we

18 explained in our notice, the officer had a reasonable suspicion that Defendant was

19 driving while intoxicated. Therefore, the blood test was not an improper expansion


                                               2
 1 of the scope of the stop. See State v. Randy J., 2011-NMCA-105, ¶ 34, 150 N.M. 683,

 2 265 P.3d 734 (holding that after a child was stopped for a traffic violation, the smell

 3 of marijuana provided reasonable suspicion to expand the scope of the stop to

 4 investigate whether the child was driving while intoxicated).

 5        Defendant argues, pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982

 6 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), that there was

 7 no reasonable suspicion that he was intoxicated because he provided a legitimate

 8 excuse for not being able to successfully complete the field sobriety tests. However,

 9 even before the officer asked Defendant to perform the tests, the officer observed facts

10 that were sufficient to provide a reasonable suspicion that Defendant was driving

11 while intoxicated. When Defendant was driving, he was weaving, did not maintain

12 his lane of travel, and almost struck a curb. [DS unnumbered page 3] Once the

13 officer stopped Defendant, he noticed that Defendant’s breath smelled of alcohol and

14 his eyes were bloodshot and watery. [DS unnumbered page 3] Defendant admitted

15 to drinking a shot of alcohol and ingesting Vicodin. [DS unnumbered page 3] And

16 Defendant became emotional and began to cry. [RP 25] As this evidence was

17 sufficient to provide the officer with a reasonable suspicion that Defendant had been

18 driving while impaired by alcohol, the blood alcohol test was not an illegal expansion

19 of the scope of the original stop.


                                              3
 1 Voir Dire of the Expert Regarding Reliability of the Blood Alcohol Test

 2        Defendant contends that the district court did not correctly apply the law when

 3 it did not allow Defendant to voir dire the State’s lab analyst regarding the reliability

 4 of the blood alcohol test. [DS unnumbered page 10] We review the denial of a

 5 motion to voir dire a witness for an abuse of discretion. See State v. Purk, 84 N.M.

 6 668, 669, 506 P.2d 1215, 1216 (Ct. App. 1973).

 7        “[I]t is error to admit expert testimony involving scientific knowledge unless

 8 the party offering such testimony first establishes the evidentiary reliability of the

 9 scientific knowledge.” State v. Torres, 1999-NMSC-010, ¶ 24, 127 N.M. 20, 976 P.2d

10 20.   “The proponent of the scientific evidence is required to establish by a

11 preponderance of the evidence that the testimony is reliable, and therefore admissible,

12 but not that the testimony must be believed.”          Andrews v. U.S. Steel Corp.,

13 2011-NMCA-032, ¶ 14, 149 N.M. 461, 250 P.3d 887. To determine whether the

14 evidence is reliable, the district court considers a non-exclusive list of factors,

15 including: (1) whether the technique has been tested; (2) whether the technique has

16 been subjected to peer review and publication; (3) the known potential rate of error

17 in using a particular scientific technique and the existence and maintenance of

18 standards controlling the technique’s operation; (4) whether the technique has been

19 generally accepted in the particular scientific field; and (5) whether the technique is


                                               4
 1 based upon well-recognized scientific principles such that it is adequate to support

 2 opinions based upon reasonable probability rather than conjecture. Id.             As we

 3 discussed in our notice, Defendant has not explained what evidence was introduced

 4 by the State regarding the reliability of the test, such that he fails to demonstrate that

 5 the district court erred in concluding that the test was sufficiently reliable to be

 6 admitted. Furthermore, Defendant’s claim of error on appeal is not that the State

 7 failed to meet this initial burden, but that the district court erred in refusing to permit

 8 Defendant to voir dire the analyst in order to rebut the State’s assertion of reliability.

 9 [DS unnumbered page 10; MIO 6] However, as we indicated in our notice, Defendant

10 fails to cite any authority demonstrating that the refusal to permit the type of

11 questioning he wanted to engage in constitutes reversible error on appeal, and we

12 therefore assume that no such authority exists. See In re Adoption of Doe, 100 N.M.

13 764, 765, 676 P.2d 1329, 1330 (1984). Once the State met its threshold burden of

14 demonstrating reliability, we do not see why Defendant could not simply cross-

15 examine the witness in order to call into question the reliability or accuracy of these

16 particular test results. We, accordingly, conclude that Defendant has failed to

17 demonstrate error on appeal based on the district court’s denial of his request to voir

18 dire the witness.

19 The Admission of Evidence of a Blood Sample Despite the Absence of
20 Photographs

                                                5
 1        Defendant contends that the district court did not correctly apply the law when

 2 it admitted evidence of a blood sample despite the fact that no photographs had been

 3 taken of the blood vials and packaging. [DS unnumbered page 10] In this Court’s

 4 notice of proposed summary disposition, we proposed to conclude that this issue had

 5 not been preserved, and that even if it had, Defendant failed to demonstrate reversible

 6 error on this basis. In his memorandum in opposition, Defendant asserts that he

 7 preserved this argument. We will assume, without deciding, that the argument was

 8 preserved.

 9        Nevertheless, as we stated in our notice, Defendant cites no authority to suggest

10 that photographs must be taken of evidence before it may be admitted or otherwise

11 discussed at trial. Accordingly, we conclude that no such authority exists, and we find

12 no error on this basis. See In re Adoption of Doe, 100 N.M. at 765, 676 P.2d at 1330.

13        Although Defendant attempts to reframe this issue in his memorandum in

14 opposition as a more general claim that the blood was not properly authenticated, this

15 was not the manner in which he originally presented the issue, and he has not moved

16 to amend the docketing statement. Furthermore, as we discuss with respect to

17 Defendant’s claim of error regarding the chain of custody, the chain-of-custody

18 evidence was sufficient to support a finding that the blood was Defendant’s. See Rule

19 11-901(A) NMRA (stating that the requirement of authentication or identification “is


                                              6
 1 satisfied by evidence sufficient to support a finding that the matter in question is what

 2 its proponent claims”).

 3 Refusal to Require Confrontation of Nurse Who Drew Defendant’s Blood

 4        Defendant contends that the district court did not correctly apply the law when

 5 it admitted blood test results into evidence even though the nurse who drew

 6 Defendant’s blood was not present for cross-examination. [DS unnumbered page 10]

 7 We will assume, without deciding, that this issue was preserved.

 8        This Court has held that a person who draws a blood sample for a test whose

 9 results are introduced into evidence need not testify at trial. State v. Nez, 2010-

10 NMCA-092, ¶ 16, 148 N.M. 914, 242 P.3d 482, cert. denied, 2010-NMCERT-009,

11 149 N.M. 49, 243 P.3d 481. Relying on statements by the United States Supreme

12 Court in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), we stated that the fact

13 that the person taking the sample does not testify does not violate the Confrontation

14 Clause because “it is not the case, that anyone whose testimony may be relevant in

15 establishing the chain of custody, authenticity of [a] sample, or accuracy of [a] testing

16 device, must appear in person as part of the prosecution’s case.” Id. (internal

17 quotation marks omitted).

18        Additionally, Defendant fails to demonstrate that the Confrontation Clause has

19 any application here. The Confrontation Clause bars the introduction of out-of-court


                                               7
 1 testimonial hearsay unless the [S]tate demonstrates both that the witness is unavailable

 2 and that the defendant had a prior opportunity to cross-examine the witness. See State

 3 v. Cabezuela, 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705. Here, however,

 4 there were no out-of-court testimonial statements made by the nurse, since she simply

 5 drew Defendant’s blood. She did not test it herself, and apparently made no written

 6 or oral statements that were used against Defendant at trial. It appears that what

 7 Defendant argues is that the Confrontation Clause requires the State to create

 8 testimony by the nurse by bringing her into court even when it does not seek to use

 9 any statements by her, and then allow Defendant to cross-examine the nurse about that

10 testimony. Defendant cites no authority for this proposition, and we assume that there

11 is none. See In re Adoption of Doe, 100 N.M. at 765, 676 P.2d at 1330. This Court

12 has held that the Confrontation Clause does not require the State to create testimony

13 regarding the scientific reliability and accuracy of a breath test machine, see State v.

14 Anaya, No. 30,675, slip op. at 6-7 (N.M. Ct. App. June 7, 2012), and we conclude that

15 the same rule applies here.

16 Sufficiency of the Chain-of-Custody Evidence for the Blood Sample

17        Defendant contends that the district court did not correctly apply the law when

18 it admitted blood test results into evidence despite the fact that there had been a break

19 in the chain of custody. [DS unnumbered pages 10-11] In our notice of proposed


                                               8
 1 summary disposition, we pointed out that the State is generally not required to prove

 2 the chain of custody in such detail that all possibility of tampering is excluded, and

 3 if there are questions regarding a possible gap in the chain of custody, those questions

 4 go to the weight of the evidence and not to its admissibility. See State v. Peters, 1997-

 5 NMCA-084, ¶ 26, 123 N.M. 667, 944 P.2d 896. Here, there was evidence that the

 6 police officer observed the blood sample being drawn by a registered nurse, and that

 7 the officer packaged the vials and took them back to his office, where they were

 8 placed on a secretary’s desk to be sent to the Scientific Laboratory Division by mail.

 9 We proposed to hold that this was sufficient to establish a chain of custody. See id.

10 ¶ 27 (finding a sufficient chain of custody based on testimony from the nurses who

11 drew two blood samples, the police officer who took those samples to his office, and

12 the criminalist who sent the samples to the FBI crime laboratory in Washington,

13 D.C.).

14          Although Defendant argues in his memorandum in opposition that there was no

15 evidence regarding what happened after the officer placed the vials on the secretary’s

16 desk, any such gap in the chain of custody would go to the weight of the evidence, not

17 its admissibility. See Peters, 1997-NMCA-084, ¶ 26. Accordingly, the district court

18 did not abuse its discretion in admitting the evidence.




                                               9
1       Therefore, for the reasons stated in this opinion and in our notice of proposed

2 summary disposition, we affirm.




3       IT IS SO ORDERED.



4
5                                         TIMOTHY L. GARCIA, Judge


6 WE CONCUR:



7
8 JAMES J. WECHSLER, Judge



 9
10 LINDA M. VANZI, Judge




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