State v. Burke

• Court: New Mexico Court of Appeals
• Decided: April 8, 2015
• Docket: 33,834
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,834

5 CAITLIN BURKE,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jacqueline Flores, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Ben A. Ortega 13 Albuquerque, NM

14 for Appellant

15 MEMORANDUM OPINION

16 WECHSLER, Judge. 1 {1} Defendant appeals from the district court’s on-record review and affirmance of

2 the metropolitan court’s decision, in which the metropolitan court found her guilty of

3 driving while under the influence of intoxicating liquor or drugs (DWI). [DS 1; RP

4 103-17, 138] This Court issued a notice of proposed disposition in which we proposed

5 to adopt the thorough and well-reasoned memorandum opinion of the district court.

6 Defendant has filed a memorandum in opposition challenging our notice of proposed

7 disposition, which we have given due consideration. For the reasons stated below, we

8 remain unpersuaded and affirm.

9 Foundation for Chemical Test

10 {2} Defendant contends that the metropolitan court erred in admitting the chemical

11 test results where “the officer at no point saw the authentic documentation from [the

12 State Laboratory Division] indicating certification.” [MIO 3] Defendant concedes,

13 however, that the officer saw a copy of the certification containing the relevant

14 foundational information and that the copy was affixed to the machine. [MIO 3]

15 Defendant asserts that this does not satisfy State v. Martinez, 2007-NMSC-025, 141

16 N.M. 713, 160 P.3d 894. In Martinez, the New Mexico Supreme Court held

17 “[w]hether the officer understands the underlying process that led to the document’s

18 content does not matter for foundational purposes—what matters is simply the content

19 of the document.” Id. ¶ 22. Here, Defendant does not assert that the officer did not

2 1 testify to the content of the document, but that the officer was aware of that content

2 from a copy of the certification sticker. However, given that the officer testified to the

3 necessary foundational information, and given that Defendant has not cited any

4 authority holding that this foundational information cannot be taken from a copy, but

5 must be taken from an original, we conclude that Defendant has not demonstrated

6 error in this regard. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d

7 482 (“Where a party cites no authority to support an argument, we may assume no

8 such authority exists.”).

9 Confrontation Clause

10 {3} Defendant contends her right to confrontation was violated and that State v.

11 Anaya, 2012-NMCA-094, 287 P.3d 956, does not control. We disagree.

12 {4} Defendant contends that the breath-testing process is a “multi-step process

13 where the end tester, the officer, gives surrogate testimony and offers a certificate in

14 place of live testimony to prove the integrity of the steps of the testing process not

15 performed by the officer.” [MIO 5] Defendant argues that a certificate is provided to

16 show that the calibration and certification process were done properly. [MIO 7]

17 Defendant, therefore, contends that his confrontation rights were violated because he

18 was not permitted to confront some of the actual analysts for his test. [MIO 8]

19 {5} In Anaya, this Court held that “[f]oundational information regarding the

3 1 scientific aspects of a breathalyzer machine would require too much of an inferential

2 leap to serve as testimonial evidence of a defendant’s guilt.” Id. ¶ 22. “As a result,

3 factual evidence related to the scientific aspects of the certification procedures of the

4 IR 5000 machine are non-testimonial because they would support one foundational

5 fact, the scientific accuracy of the machine.” Id. We see little basis for distinguishing

6 the facts of this case from Anaya. Defendant contends that he was not permitted to

7 confront witnesses who would testify to the calibration and certification

8 process—essentially, the scientific accuracy of the machine—which we have

9 previously held to be non-testimonial and, therefore, not subject to confrontation.

10 {6} For this reason, we conclude Defendant has not demonstrated error in this

11 regard.

12 Weight of Evidence

13 {7} Defendant contends that the metropolitan court judge erred in considering the

14 breath alcohol test to be irrefutable proof of per se DWI and requests that this Court

15 correct this alleged error in law. [MIO 8, 10] Defendant relies on the metropolitan

16 court judge’s statement to argue that the judge did not exercise her discretion and

17 weigh the evidence, but, rather, blindly followed the chemical test. [MIO 10]

18 However, the metropolitan court judge’s statement that, once the breath alcohol test

19 is admitted, it is “pretty difficult,” because under New Mexico law a .08 or above is

4 1 a per se violation, indicates no impropriety. Rather, the metropolitan court judge’s

2 statement is a restatement of NMSA 1978, Section 66-8-102(C)(1) (2010) and appears

3 to indicate that she does place weight on the breath test score. It does not, however,

4 lend itself to the conclusion that the metropolitan court refused to consider any other

5 evidence. As a result, we conclude that Defendant has not demonstrated error in this

6 regard.

7 {8} For the reasons stated above, and those contained in the district court’s

8 memorandum opinion, we affirm.

9 {9} IT IS SO ORDERED.

10 ________________________________ 11 JAMES J. WECHSLER, Judge

12 WE CONCUR:

13 ________________________________ 14 JONATHAN B. SUTIN, Judge

15 ________________________________ 16 LINDA M. VANZI, Judge