The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Clerk of the Court for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: JUNE 5, 2024
4 No. A-1-CA-40886
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 MARGARET CANO-SAMMIS a/k/a 9 MARGARET A. CANO-SAMMIS,
10 Defendant-Appellant.
11 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 12 Daniel A. Bryant, District Court Judge
13 Raúl Torrez, Attorney General 14 Santa Fe, NM 15 Aletheia V.P. Allen, Solicitor General 16 Albuquerque, NM
17 for Appellee
18 Gary C. Mitchell, P.C. 19 Gary C. Mitchell 20 Ruidoso, NM
21 for Appellant 1 OPINION
2 WRAY, Judge.
3 {1} Defendant Margaret Cano-Sammis was on a daily regimen of marijuana and
4 methadone to address numerous health issues. After a sleepless night caring for her
5 brother, Defendant drove her brother to a doctor’s appointment and on the way
6 home, veered from the road, and struck and killed a seventy-eight-year-old great-
7 grandmother (Victim). A jury convicted Defendant of homicide by vehicle (driving
8 while under the influence of drugs), contrary to NMSA 1978, Section 66-8-101(A)
9 (2016). Defendant’s appeal centers on whether the district court properly admitted
10 evidence concerning Defendant’s alleged impairment by drugs. Defendant relatedly
11 challenges the sufficiency of the evidence to support the conviction and the district
12 court’s rejection of Defendant’s proposed jury instructions. Because we conclude
13 that (1) the State established sufficient foundation for the admitted evidence, (2) the
14 evidence supported the conviction, and (3) the district court properly refused
15 Defendant’s proposed jury instructions, we affirm.
16 BACKGROUND
17 {2} In July 2017, Defendant was driving in Lincoln, New Mexico, when she
18 veered off the road and struck Victim, who was walking with her family to visit a
19 historical site. Accident reconstruction testimony established that Defendant’s truck
20 was travelling a minimum of fifteen miles-per-hour when it hit Victim and continued 1 for approximately thirty-one feet before hitting a parked car. The absence of tire
2 marks indicated that the brakes on Defendant’s truck did not engage. Victim’s son
3 testified that when he got to the truck, Victim was under a tire, and he yelled to
4 Defendant to back the truck up. Victim died before paramedics arrived.
5 {3} Multiple law enforcement officers arrived at the scene, as well as paramedics
6 who unsuccessfully attempted to resuscitate Victim. A Lincoln County Sheriff’s
7 deputy (the deputy) took Defendant’s statement, and Defendant reported that she
8 was driving slowly, and “the next thing that she remembered there were people
9 yelling at her.” The deputy asked whether Defendant had taken any medication, and
10 Defendant responded that she had taken her prescribed methadone and marijuana
11 that morning for pain. Results of a blood draw performed later that day confirmed
12 the presence of marijuana and methadone in Defendant’s bloodstream.
13 {4} A New Mexico State Police sergeant (the sergeant) arrived and conducted
14 standard field sobriety tests (SFSTs) as well as two, alternate sobriety tests—the
15 “estimate-thirty-seconds” test and the “finger-to-nose” test. The sergeant testified
16 that he observed eyelid tremors while conducting the horizontal gaze nystagmus
17 (HGN) test as well as during the alternate “estimate-thirty-seconds” test. He further
18 testified that Defendant failed to follow instructions during the HGN and the walk-
19 and-turn test, had difficulty maintaining balance, and consistently counted slowly,
20 both during the one-leg stand test as well as during the “estimate-thirty seconds”
2 1 test. The sergeant’s observations related to Defendant’s performance on the SFSTs
2 were recorded in the police report.
3 {5} Before trial, Defendant filed a motion in limine to prohibit the State from
4 offering into evidence any standards correlating an amount of marijuana in
5 Defendant’s system to impairment, because unlike blood alcohol levels, specific
6 blood levels of marijuana, measured by the presence of the chemical THC, do not
7 correlate to impaired driving. At the hearing on Defendant’s motion, it became clear
8 that Defendant contested not only the admission of the level of the THC in her
9 system, but also all testimony and evidence that marijuana use causes driving
10 impairment. The State’s expert, the chief of the Forensic Toxicology Bureau of the
11 New Mexico Department of Health (the expert), testified that studies observing
12 marijuana and driving had shown “a significant difference between sober state,
13 placebo state, and the drug state” in relation to maintaining a lane, a consistent
14 following distance, and speed. Referring to marijuana, the expert stated that the
15 studies “broadly” demonstrate that “the presence of these drugs can cause
16 impairment.” The State then proffered the expert to offer the opinion that in the
17 present case, Defendant was impaired by marijuana based on the presence of
18 marijuana in Defendant’s blood in combination with other facts gleaned from the
19 investigatory record. To support the position that no scientific evidence correlated
20 marijuana use with impaired driving, Defendant referenced multiple studies and
3 1 articles. Defendant, however, relied on cross-examination at the hearing and
2 declined to submit any evidence on the subject—including the articles and studies
3 or expert testimony—to the district court. The district court requested additional
4 briefing on whether a toxicologist could rely on an amount of marijuana present in
5 blood together with “all of the other factors” in order to provide an opinion on
6 impairment.
7 {6} The parties submitted the additional briefing, and the district court entered an
8 order granting Defendant’s motion in part and prohibiting the State from presenting
9 testimony that a particular level of THC in the bloodstream equates to impairment.
10 The district court did, however, allow the expert to provide an opinion that
11 Defendant was impaired based on a combination of factors, which included the
12 results of the blood draw, driving behavior, statements, and observations during the
13 SFSTs.
14 {7} During the four-day jury trial, Defendant presented evidence that she suffered
15 from a seizure disorder that manifested for the first time when her truck hit and killed
16 Victim and that because of her brother’s medical difficulties, she had been awake
17 most of the night and was sleep deprived. The State argued that “her drugs caused
18 her to fall asleep and drive off the road” and any “unconsciousness was due to the
19 marijuana, it was due to the methadone, and that makes it criminal.” Ultimately, the
4 1 jury found Defendant to be guilty of homicide by vehicle, and the district court
2 imposed a nine-year sentence. Defendant appeals.
3 DISCUSSION
4 {8} Defendant asks us to determine (1) that the district court improperly admitted
5 evidence concerning Defendant’s impairment by drugs, (2) whether sufficient
6 evidence supported Defendant’s conviction, and (3) whether the district court
7 incorrectly rejected Defendant’s proposed jury instructions. We begin with
8 Defendant’s challenge to the admission of the impairment evidence.
9 I. The District Court Did Not Abuse Its Discretion in Admitting the 10 Evidence of Impairment
11 {9} Defendant first argues that the district court admitted unreliable evidence of
12 impairment by marijuana and methadone. The admission of expert testimony and
13 scientific evidence is “within the sound discretion of the [district] court and will not
14 be reversed absent a showing of abuse of that discretion.” State v. Alberico, 1993-
15 NMSC-047, ¶ 58, 116 N.M. 156, 861 P.2d 192. A district court abuses its discretion
16 only if its decision indicates a misapprehension of the law, State v. Vargas, 2016-
17 NMCA-038, ¶ 10, 368 P.3d 1232, or is manifestly erroneous, arbitrary, unwarranted,
18 or is “clearly against the logic and effect of the facts and circumstances before the
19 court.” Alberico, 1993-NMSC-047, ¶¶ 58, 63.
20 {10} The admission of expert testimony and other scientific evidence is largely
21 governed by Rule 11-702 NMRA. This rule has been interpreted by our courts to
5 1 require the proponent of expert testimony to satisfy three prerequisites for
2 admissibility: (1) the expert is qualified; (2) the testimony proffered will assist the
3 trier of fact; and (3) the testimony concerns “scientific, technical, or other specialized
4 knowledge with a reliable basis.” State v. Yepez, 2021-NMSC-010, ¶ 19, 483 P.3d
5 576 (internal quotation marks and citation omitted). The district court must exercise
6 a “gate[]keeping function and ensure that the expert’s testimony is reliable,” State v.
7 Torrez, 2009-NMSC-029, ¶ 21, 146 N.M. 331, 210 P.3d 228, so that “speculative
8 and unfounded opinions do not reach the jury,” Yepez, 2021-NMSC-010, ¶ 19
9 (internal quotation marks and citation omitted); see also State v. Torres, 1999-
10 NMSC-010, ¶ 24, 127 N.M. 20, 976 P.2d 20 (“[I]t is error to admit expert testimony
11 involving scientific knowledge unless the party offering such testimony first
12 establishes the evidentiary reliability of the scientific knowledge.”). In the present
13 case, Defendant contends that the expert’s opinion was not sufficiently scientifically
14 reliable to demonstrate impairment by marijuana and methadone. Specifically,
15 Defendant contends that the district court improperly allowed the State “to present
16 results of a blood draw and . . . allow[ed] the State’s ‘expert’ to state an opinion . . .
17 [D]efendant was impaired” but “[a]fter assessing the lack of scientific research, the
18 [district] court should have determined that more research is needed to determine a
19 method for scientifically proving impairment for the use of marijuana/methadone.”
6 1 {11} We view the expert’s opinion in two parts. First, the expert provided testimony
2 that marijuana and methadone can cause driving impairment as measured by certain
3 physical behaviors like sleepiness or focus problems. Second, the expert used that
4 principle to further opine that Defendant’s driving was impaired by marijuana and
5 methadone based on an aggregate of information about Defendant’s physical
6 behaviors. The same analytical tools do not necessary apply to evaluate both of the
7 expert’s opinions. Under federal law and New Mexico law, the admissibility of
8 scientific expert testimony is subject to a multifactor test, named for Daubert v.
9 Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Alberico, the Daubert-
10 Alberico test. See Yepez, 2021-NMSC-010, ¶ 22. Federal and New Mexico law
11 diverge, however, when expert testimony has its basis not in scientific knowledge
12 but in experience and training. See Torres, 1999-NMSC-010, ¶ 44; Banks v. IMC
13 Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 19, 134 N.M. 421, 77 P.3d 1014
14 (“[W]e apply Daubert somewhat differently than do the federal courts.”).
15 {12} We review de novo whether the Daubert-Alberico standard applies. See
16 Torres, 1999-NMSC-010, ¶ 28. This Court has explained that “[e]vidence is based
17 on scientific knowledge if it is not self-explanatory, or if it is based on a scientific or
18 medical principle.” State v. Aleman, 2008-NMCA-137, ¶ 6, 145 N.M. 79, 194 P.3d
19 110 (internal quotation marks and citation omitted). The expert’s opinion that
20 marijuana and methadone use can cause driving impairment is rooted in whether a
7 1 substance can cause a particular response in the human body. This opinion “is based
2 on principles of medicine and science not readily understandable to the jury.” See
3 Torres, 1999-NMSC-010, ¶ 31 (internal quotation marks and citation omitted). To
4 establish the foundation for this opinion, the State was required to satisfy the
5 Daubert-Alberico factors. The expert further testified, however, that Defendant was
6 impaired based on a combination of (1) the scientific opinion that marijuana and
7 methadone can cause certain physical responses and driving behaviors; and (2) the
8 sergeant’s observations during the SFSTs, Defendant’s admission to taking
9 marijuana and methadone, the presence of both drugs in Defendant’s blood, and the
10 circumstances of the collision. In Aleman, we determined that similar testimony was
11 not scientific as contemplated by Rule 11-702 but was instead “specialized
12 knowledge,” which “while it may result in conclusions or opinions drawn from
13 observations and experience with scientific facts, deals more with the technical
14 application, rather than the theoretical application of facts.” See Aleman, 2008-
15 NMCA-137, ¶ 18 (internal quotation marks and citation omitted). Opinions based
16 on specialized knowledge, and not “science,” are not subject to Daubert-Alberico.
17 See State v. Ruffin, 2019-NMCA-009, ¶ 21, 458 P.3d 445 (concluding that testimony
18 fitting within the witness’s specialized training did not arise from “scientific
19 principles or mathematic computations” and therefore Daubert-Alberico did not
20 apply). In the present case, therefore, the scientific evidence must satisfy the
8 1 Daubert-Alberico test and the remaining opinion testimony must meet the Rule 11-
2 702 standard. See Aleman, 2008-NMCA-137, ¶ 17. We turn to the Daubert-Alberico
3 test.
4 A. The Scientific Reliability of the Expert’s Opinion That Marijuana Can 5 Impair Driving
6 {13} We briefly explain why we address only the reliability of the expert’s
7 scientific opinion as to marijuana and not the reliability of the expert’s opinion about
8 methadone. Defendant’s motion in limine focused only on marijuana, and at the
9 pretrial hearing on the motion Defendant stated, “Let’s keep it to marijuana today,”
10 suggesting that impairment by methadone was not at issue. Before trial, the district
11 court clarified that because Defendant had challenged only the marijuana evidence,
12 the rulings related only to the marijuana evidence: “I have not either granted
13 testimony about methadone or excluded testimony about methadone. That will
14 depend on the presentations and/or objections at the time of trial if there are any.”
15 At trial, Defendant argued that the studies did not show that methadone causes
16 impaired driving when taken within therapeutic limits. Defendant did not offer any
17 studies to the district court or argue that the expert should not be permitted to testify
18 that methadone can cause driving impairment. Before the expert testified about the
19 blood test results, Defendant objected for the record to the admission of both the
20 marijuana and methadone results, but did not articulate a further basis for exclusion
21 beyond the arguments already made—arguments that related to marijuana. The
9 1 expert testified that methadone can cause similar physical reactions in the body—
2 drowsiness, slow reaction time, and the ability to make judgments. Though the
3 expert did not discuss any specific driving studies related to the use of methadone,
4 he did explain that the presence of both marijuana and methadone would cause
5 “impairment by potentially both substances simultaneously” but would not
6 “multiply and make [the impairment] much greater.” Defendant cross-examined the
7 expert about studies indicating that methadone taken within therapeutic limits did
8 not impair driving. Because the pretrial focus was on marijuana and Defendant did
9 not invoke a ruling specifically related to the scientific foundation for driving
10 impairment caused by methadone, we limit our discussion to the scientific
11 foundation for the evidence that marijuana can cause driving impairment.
12 {14} On appeal, Defendant cites extensively to articles and studies to support her
13 view that “there is no scientific method to determine impairment via marijuana and
14 other tests used to show impairment due to alcohol do not work to show impairment
15 due to marijuana use.” At trial, Defendant used some studies in cross-examination
16 to point out inconsistencies or uncertainties in the science about how these drugs
17 affect the body and invited the jury to test the weight and credibility of the expert’s
18 opinion in light of that additional information. These studies and articles, however,
19 are not part of our record on appeal and as stated above, were not offered to the
20 district court to assist with the gatekeeping determination. As a result, we do not
10 1 consider them anew. See State v. Knight, 2019-NMCA-060, ¶ 22, 450 P.3d 462
2 (“[O]ur scope of appellate review is limited to a consideration of those facts
3 disclosed by the record.” (internal quotation marks and citation omitted)); State v.
4 Cordova, 2014-NMCA-081, ¶ 14, 331 P.3d 980 (“[T]he argument of counsel is not
5 evidence.”).
6 {15} To determine whether scientific knowledge is reliable, courts examine the
7 Daubert-Alberico factors as follows:
8 (1) whether a theory or technique can be (and has been) tested; (2) whether 9 the theory or technique has been subjected to peer review and publication; (3) 10 the known or potential rate of error in using a particular scientific technique 11 and the existence and maintenance of standards controlling the technique’s 12 operation; and (4) whether the theory or technique has been generally 13 accepted in the particular scientific field.
14 Yepez, 2021-NMSC-010, ¶ 22 (internal quotation marks and citation omitted). To
15 establish that marijuana can impair driving, the expert testified at the pretrial hearing
16 about the complex nature of driving and the impact marijuana can have on a person’s
17 ability to drive safely:
18 State: Can marijuana impair driving?
19 Expert: Yes.
20 State: And can you talk to us about the science of how marijuana can 21 impair driving?
22 Expert: So driving is . . . a complex task, right. It requires divided 23 attention. You must look at the field of view around you, control your 24 hands to steer the car safely, often operate your feet to push the 25 accelerator or the brake. . . . So you need to have divided attention,
11 1 ability in that you need to be able to view what is around you. You need 2 to be vigilant. You need to have memory, right, remember what the 3 speed limit is. . . . You must exercise sound judgment to avoid 4 dangerous situations, to follow the laws.
5 In relation to the specific aspects of driving that could be affected by marijuana use,
6 the expert explained that
7 there have been multiple studies where marijuana has been dosed into 8 healthy volunteers who are then given the task of driving on the open 9 road with a kind of instructor car, or in a simulated driving 10 environment. And in many of those studies there has been a measurable 11 decrease in individual ability to be vigilant and to maintain divided 12 attention to safely operate a motor vehicle. There can be other problems 13 where if the dose of marijuana is very high, it can cause somebody to 14 be very sleepy, which I think we can all understand of how being very 15 sleepy can cause unsafe driving. So that’s just a few of the areas where 16 impairment by [marijuana] can negatively impact one’s ability to safely 17 operate a motor vehicle.
18 The expert testified about specific, published studies and described how those
19 studies monitored sober, placebo, and drugged participants to measure observable
20 behavior for impairment, including maintaining speed and lane positioning. The
21 expert did not testify specifically to any rate of error associated with these studies or
22 whether the results of these studies were peer reviewed, although at trial, the expert
23 generally testified that his “education” is based on “peer reviewed journals that’s
24 also kind of aligned with what the court requires.” In this respect, the State did not
25 elicit the specific information required for the district court to perform its
26 gatekeeping function as to all of the Daubert-Alberico factors. While the district
27 court may inquire further and require more information from a party before
12 1 admitting expert testimony, see State v. Lasworth, 2002-NMCA-029, ¶¶ 17, 20-22,
2 131 N.M. 739, 42 P.3d 844 (determining the district court did not abuse its discretion
3 in excluding expert testimony when the expert was not able to explain the scientific
4 phenomena at issue to the district court’s satisfaction), during cross-examination,
5 Defendant conceded that marijuana can impair driving as follows: “You’ve stated
6 that marijuana can impair driving, not too much question that it can’t, question is
7 whether it did.” Under these circumstances, “deficiencies in calculating the rate of
8 error sp[eak] to the weight of the evidence and not to its admissibility.” State v.
9 Montoya, 2016-NMCA-079, ¶ 26, 382 P.3d 948 (internal quotation marks and
10 citation omitted). “[A]ny doubt regarding the admissibility of [expert opinion]
11 evidence should be resolved in favor of admission, rather than exclusion.” Lee v.
12 Martinez, 2004-NMSC-027, ¶ 16, 136 N.M. 166, 96 P.3d 291.
13 {16} For these reasons, we conclude that the district court did not abuse its
14 discretion in considering and weighing the Daubert-Alberico factors that the parties
15 put at issue and ultimately admitting the expert’s opinion connecting marijuana and
16 driving impairment.
17 B. The Expert’s Opinion That Defendant Was Impaired
18 {17} The expert combined this scientific opinion on marijuana and driving
19 impairment with additional evidence to form a broad opinion that Defendant was
20 impaired by marijuana while driving. As we have explained, we do not subject this
13 1 broader opinion to Daubert-Alberico but instead consider the Rule 11-702 factors.
2 Defendant does not argue that the expert was not qualified or that the opinion did
3 not assist the jury—the first two elements of Rule 11-702. We therefore do not
4 address whether a toxicologist is qualified to offer an opinion on impairment that is
5 based on all of the evidence in the police report or whether such an opinion is helpful
6 to the jury. Instead, we, like Defendant, focus on the third element. Defendant argues
7 that the expert’s opinion did not have a reliable basis because (1) the additional
8 evidence presented at trial—SFST, HGN, and blood test results—is relevant only to
9 identify alcohol-related impairment and not marijuana impairment; and (2) the
10 expert’s testimony only supported a conclusion that marijuana impairment was the
11 “likely cause” of the collision, which encouraged the jury to rely on a single
12 inference and improperly minimized other causation evidence, contrary to our
13 Supreme Court’s determination in State v. Consaul, 2014-NMSC-030, 332 P.3d 850.
14 As we explain, however, the additional evidence was sufficiently related to
15 marijuana impairment, and the expert’s testimony was not similar enough to the
16 expert testimony outlined in Consual to trigger the same concerns.
17 1. The Additional Evidence of Impairment
18 {18} As noted, Defendant contests that the additional evidence of impairment—
19 particularly the presence of THC in the blood, the SFSTs, and the results of the HGN
20 test—was unreliable. We address each in turn.
14 1 {19} The district court limited the expert’s testimony about the blood test to the
2 presence of an amount of THC and methadone in Defendant’s blood. The expert did
3 not testify that the level of THC in Defendant’s bloodstream showed impairment and
4 readily acknowledged that specific blood levels of these drugs do not directly
5 correlate to impairment. Rather, the expert testified that the presence of marijuana
6 in Defendant’s blood was but one factor that he considered in making the
7 determination that Defendant was impaired at the time of the collision. On cross-
8 examination, the expert acknowledged that users of marijuana and methadone can
9 develop tolerances to impairing effects, that marijuana has varying impacts on
10 different people’s motor performance, and that THC may remain in the blood
11 residually for some period of time without causing impairment. The district court
12 properly prevented the State from establishing impairment based solely on a THC
13 blood level but appropriately permitted the expert to render an opinion on the
14 presence of THC in Defendant’s blood and Defendant to cross-examine that opinion.
15 The weight and credibility of the opinion was for the jury to determine. See Alberico,
16 1993-NMSC-047, ¶ 96 (“The proper focus is whether the expert testimony is
17 competent; then the trier of fact has the discretion to evaluate expert testimony just
18 like any other admissible evidence.”).
19 {20} The jury was also free to consider the import of the SFSTs. New Mexico
20 courts have held that evidence about the administration of SFSTs is probative of
15 1 impairment by drugs and demonstrative of “common physical manifestations” of
2 intoxication. See State v. Randy J., 2011-NMCA-105, ¶ 34, 150 N.M. 683, 265 P.3d
3 734 (“[The] administration of [SFSTs] is a reasonable part of an investigation where
4 the officer has reasonable suspicion that the person was driving under the influence
5 of alcohol or drugs.”); Torres, 1999-NMSC-010, ¶ 31 (recognizing that most SFSTs
6 are self-explanatory and address “common physical manifestations of intoxication”
7 (internal quotation marks and citation omitted)). This connection is borne out in the
8 testimony at trial. The sergeant testified that during the SFSTs, Defendant had
9 difficulty following instructions and slow responses. The expert explained that
10 SFSTs are, by definition, divided attention tests and doing poorly on a SFST can
11 indicate someone is having trouble with a driving task and may be impaired by drugs.
12 As we have outlined, the expert discussed the physical manifestations of marijuana
13 use—sleepiness, lack of vigilance, and difficulty with divided attention tasks. In the
14 scientific studies, these symptoms manifested as driving impairment: difficulty
15 maintaining a lane, speed, and distance between vehicles. Thus, Defendant’s
16 behavior during the SFSTs reflected the type of behavior that the expert correlated
17 to both marijuana use and driving impairment.
18 {21} Defendant contends that a drug recognition evaluator (DRE) exam should
19 have been performed, instead of only SFSTs, so that the jury could hear evidence of
20 a drug-specific investigation and that a DRE exam was required by Aleman. In
16 1 Aleman, this Court “address[ed] the admissibility of the expert opinion testimony of
2 a [DRE] regarding a 12-[s]tep [p]rotocol . . . , which is a process designed to enable
3 law enforcement to identify (1) whether a subject’s ability to operate a vehicle is
4 impaired and (2) which category of drugs has affected a subject.” 2008-NMCA-137,
5 ¶ 1. Using training and experience, the officer makes a series of observations that
6 are used to “document the physical signs that a person is impaired and to establish
7 parameters for the toxicological tests [that] will ultimately confirm the presence of
8 a particular substance in the subject’s system.” Id. ¶ 9. While we recognized in
9 Aleman that evidence of DRE protocol results can assist a jury to determine whether
10 a defendant is under the influence of a particular drug, Aleman does not set forth a
11 mandatory procedure for law enforcement to use to determine impairment. See id.
12 ¶ 19. In this case, Defendant admitted to using marijuana and methadone earlier that
13 day, and so the DRE exam was not necessary to identify the drug at issue, which is
14 the primary assistance a DRE exam provides to the trier of fact. See id. (“[A]lthough
15 many jurors might be familiar with the individual symptoms that the DREs observed,
16 we doubt that a typical juror would have had the detailed information about the
17 correlation between these observations and a particular category of drug.” (internal
18 quotation marks and citation omitted)). We therefore cannot agree with Defendant’s
19 contention that Aleman requires compliance with a DRE protocol.
17 1 {22} We last consider Defendant’s challenge to the HGN testimony. A qualified
2 law enforcement officer may testify as to the administration of an HGN test and any
3 observations, but a scientific expert is required to establish how the test “proves”
4 intoxication. Torres, 1999-NMSC-010, ¶¶ 40, 47. Defendant argues that the HGN
5 testimony was improperly admitted not only because she maintains that HGN tests
6 are not designed to measure marijuana impairment, but also because the results of
7 such tests are affected by neurological conditions and no expert established the
8 foundation for the admission of HGN results relating to eye movement. While we
9 agree that the State did not establish the foundation to admit any expert opinion that
10 the results of the HGN test were related to impairment by marijuana, based on the
11 record before us, we discern no reversible error.
12 {23} Before trial, Defendant questioned the expert about qualifications related to
13 HGN testimony. When the district court asked Defendant to describe the potentially
14 objectionable testimony, Defendant identified the sergeant’s and the expert’s
15 testimony leading to an opinion about marijuana impairment—including the HGN.
16 The district court’s order permitted the expert to testify as to “all of the factors
17 listed,” which included the “officer’s observations of the subject during the
18 [SFSTs].” During trial, Defendant objected to the sergeant’s testimony about the
19 HGN test. The State responded that it would elicit testimony from the sergeant about
20 his observations and from the expert about the foundational requirements for
18 1 scientific HGN testimony. The district court ruled that the sergeant could testify
2 about what was observed but could not testify “about whether the [HGN] test
3 indicated any impairment.” The sergeant would “be able to talk about what he saw,
4 including eyelid flutter, but whether or not that indicates impairment is going to be
5 up to another witness.”
6 {24} On direct examination, the sergeant described the HGN test, and Defendant
7 objected as the sergeant began to explain what he was looking for. The district court
8 cautioned the State to instruct the witness not to “go any further” than the
9 observations that he made during the test. Regarding those observations, the sergeant
10 testified as follows:
11 State: What were your observations of [Defendant] during this test?
12 Sergeant: I observed a—can I say nystagmus?
13 State: Well, can you describe what it is you observed?
14 Sergeant: When I move my finger in front of their face, both pupils— 15 eyes—follow it smoothly, when I see a nystagmus, it’s an involuntary 16 jerking. It looks like the eyes kind of rolling over, little pebbles— 17 twitches—as I move my finger in front of their face.
18 State: Did you observe that in [Defendant]?
19 Sergeant: I did. During smooth pursuit, which is two passes, I go this 20 way, back this way, this way again, and this way again.
21 State: What else did you observe during this test?
22 Sergeant: I noticed eyelid tremors, top of her eyelid just fluctuating, 23 twitching.
19 1 The sergeant testified that during the finger-to-nose test, he “noticed lid tremors
2 again.” In this testimony, the sergeant reported only his actions and observations and
3 drew no conclusion about impairment, which is consistent with the district court’s
4 ruling and Torres. The expert then later testified as follows:
5 State: Did the [sergeant] observe any clues in the horizontal gaze 6 nystagmus test that were significant to as you looked at it and thought 7 about possible impairment?
8 Expert: I believe the [sergeant] observed nystagmus in both eyes.
9 State: If the [sergeant] observed eyelid flutter, would that be significant 10 to you?
11 Expert: Yes.
12 No scientific foundation for the significance of HGN or eyelid flutter was
13 established. Nevertheless, Defendant did not object at this point to the expert’s
14 testimony. The State moved on and did not refer to eye movement or HGN again.
15 While this testimony was without foundation—and entirely without context for the
16 jury—the district court did not have an opportunity to rule on the foundation for the
17 expert’s brief testimony on the subject or to cure any prejudice by way of instruction.
18 See State v. Christmas, 2002-NMCA-020, ¶ 16, 131 N.M. 591, 40 P.3d 1035
19 (acknowledging that a curative instruction is sufficient to cure prejudice resulting
20 from inadmissible evidence, including HGN testimony); see also Rule 12-321
21 NMRA (requiring for preservation that “it must appear that a ruling or decision by
20 1 the trial court was fairly invoked” absent issues involving the general public interest,
2 plain or fundamental error, or a party’s fundamental rights).
3 {25} For these reasons we reject Defendant’s individual challenges to the evidence
4 on which the expert relied to form an opinion about impairment.
5 2. Defendant’s Arguments Relating to Consaul
6 {26} Defendant argues that the admission of scientific evidence that only supports
7 a “‘likely cause’ is never sufficient to support” a guilty verdict and is contrary to our
8 Supreme Court’s holding in Consaul. Specifically, Defendant contends that the
9 principle set forth in Consaul prohibits evidence of “[t]aking a blood test and then
10 concluding because there was an accident resulting in a death there is impairment”
11 because such an inference undermines other “likely causes and the process of
12 elimination and differential diagnosis.” By this argument, Defendant challenges
13 what she views as a “one size fits all” test, which minimizes the value of potential
14 causes for the Victim’s death other than impairment by marijuana—like Defendant’s
15 evidence regarding a newly diagnosed seizure disorder. We cannot agree.
16 {27} In Consaul, the relevant issue was whether the defendant intentionally
17 smothered a child when he admitted to tightly wrapping the child and placing him
18 face down to sleep. 2014-NMSC-030, ¶ 54. The expert testimony in that case
19 provided the only evidence that the child “may have been smothered” and was not
20 “injured by other, noncriminal causes.” Id. ¶ 56. Because this expert testimony was
21 1 the only evidence to establish guilt beyond a reasonable doubt, our Supreme Court
2 looked “deeper than mere admissibility” to determine whether that expert testimony
3 was “sufficient to support a criminal conviction.” Id. ¶ 57. In that context, when
4 “[n]o doctor offered any kind of probability analysis” with the opinion that the child
5 “was likely suffocated,” the evidence fell “short of establishing proof beyond a
6 reasonable doubt.” Id. ¶¶ 71-72. The present case, however, did not involve only
7 blood test results from which the expert inferred impairment, and the jury was not
8 required to rely solely on the blood test to find Defendant guilty beyond a reasonable
9 doubt.
10 {28} As we have observed, the expert described the physical effects of marijuana—
11 slow reaction time, diminished focus and attention, easy distraction, poor memory
12 and recall—and acknowledged that while no set correlation between the level of
13 THC in the bloodstream and driving impairment exists, THC levels in the blood can
14 be considered as one factor. The expert testified that the impairment opinion was
15 based on expertise in the field of toxicology and independent review of the raw data
16 and conclusions about the presence of substances in Defendant’s blood, as well as
17 the conditions of the crash, the performance on the SFSTs indicating potential drug
18 impairment, and Defendant’s admission to using marijuana. The expert’s
19 multifaceted opinion is in line with the Consaul Court’s general view of the
20 admissibility of opinion evidence: “Generally, to be admissible an item of evidence
22 1 need only add something to the debate” and “no single piece of evidence has to carry
2 the entire burden of proof especially in a criminal trial.” Id. ¶ 67. We are therefore
3 satisfied that the expert’s opinion does not run afoul of the concerns raised by our
4 Supreme Court in Consaul.
5 C. Admissibility of the Expert’s Impairment Opinion
6 {29} Near the end of trial, Defendant lamented that “we’re dealing with issues of
7 science from experts in which there are conflicting studies and/or conflicting
8 opinions based upon conflicting studies because the science has not reached the stage
9 where it can be certain.” Later, in the context of the motion for directed verdict,
10 Defendant continued to express reservations about the admission of the evidence:
11 Experts in the field don’t know the answer, and we’re just going to toss 12 it to the jury, and say you guys decide. That’s like a coin flip—this is 13 not how we’re supposed to run a criminal justice system. . . . We’re 14 giving this jury a case in which there’s a strong argument she had a 15 seizure, . . . perhaps she was too tired and needed more sleep or did 16 these drugs have some impact—although the science says probably 17 not. . . . She didn’t fail one [SFST]. Looking at all that your honor, it 18 just seems to me that what we’re doing in this case—and this is not 19 some evil case where we’re talking about somebody went out and did 20 something evil it seemed or somebody was mad at somebody or 21 something like that—that’s not this case at all. We’re now taking a 22 major felony case with a lot of years allowed by the Legislature. We’re 23 saying to the jury, you guys decide this, even though we’re unsure of 24 the science.
25 The district court articulated its directed verdict ruling while also addressing the need
26 for the jury to resolve the conflict:
23 1 In this case, I’ve heard evidence that methadone . . . was consumed on 2 the day of the accident. I’ve heard evidence that THC was consumed 3 on the day of the accident. I’ve heard evidence from a state crime lab 4 expert who did many of the DRE things—not 100 percent of the DRE 5 things—but many of those, assessed the number of circumstances and 6 that expert has testified that in his opinion the cause of the accident was 7 impairment. What is not in dispute in this case at all is that there was 8 an accident—that the accident caused the death. So the cause of death 9 is not at issue here today. What’s at issue here is two different theories 10 about why the accident happened. The State’s theory, impairment. The 11 defense theory, medical emergency of some kind in the form of a 12 seizure and/or exhaustion, etc., from the circumstances surrounding the 13 events preceding the date. My ruling is that that dispute in the 14 evidence—that issue in the evidence—is the quintessential jury 15 question. It’s not a question for a judge to say, “I believe this set of facts 16 or I believe that set of facts,” when ruling on a case. And so that’s why 17 I did not grant the directed verdict this morning, . . . that’s the basis for 18 the denial of the motion for a directed verdict either at the end of the 19 State’s case or now, and I make the same findings. I’ve heard evidence 20 as to what happened to create the accident that a reasonable juror can 21 conclude beyond a reasonable doubt that it was impairment that caused 22 the accident. They might also conclude that there is a reasonable doubt 23 based on this other theory. But I think that evidentiary dispute belongs 24 in the hands of this jury.
25 It is well established that the appropriate means of attacking shaky, but admissible
26 evidence” is “[v]igorous cross-examination, presentation of contrary evidence, and
27 careful instruction on the burden of proof.” Daubert, 509 U.S. at 596. Defendant
28 engaged in thorough cross-examination of the expert at trial and presented evidence
29 that rather than being impaired by marijuana, she had a seizure disorder that
30 manifested for the first time on the date that Victim was killed. Accounting for the
31 uncertainties in the science that were identified and explored at trial, it was for the
32 jury to weigh all of the evidence, evaluate its credibility, and determine Defendant’s
24 1 guilt. See UJI 14-5050 NMRA (directing the jury to give expert testimony the weight
2 it deserves).
3 {30} The presence of THC in Defendant’s blood, the SFSTs, the circumstances of
4 the crash, and Defendant’s admission to using marijuana were relevant to
5 impairment by marijuana. The State established that this additional evidence,
6 together with the scientific evidence that marijuana can cause impaired driving, was
7 reliable. As a result, the district court performed its gatekeeping function, and did
8 not abuse its discretion when it (1) excluded any evidence of a particular level of
9 THC causing driving impairment; and (2) admitted the expert’s opinion that based
10 on “all the factors,” Defendant was impaired by marijuana. Cf. State v. Martinez,
11 2020-NMCA-043, ¶ 47, 472 P.3d 1241 (concluding that it was not plain error to
12 admit a toxicologist’s opinion on impairment by alcohol based on expertise in “the
13 effects of a drug or drugs on a person” and “toxicology results, [the defendant’s]
14 driving behavior, and [the defendant’s] interactions with [law enforcement] at the
15 hospital,” despite alternative explanations for the defendant’s behavior).
16 II. Substantial Evidence Supports the Jury’s Finding That Defendant Was 17 Impaired by Drugs
18 {31} Defendant additionally challenges the sufficiency of the evidence supporting
19 the conviction. “The test for sufficiency of the evidence is whether substantial
20 evidence of either a direct or circumstantial nature exists to support a verdict of
21 guilty beyond a reasonable doubt with respect to every element essential to a
25 1 conviction.” State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal
2 quotation marks and citation omitted). This Court will “view the evidence in the light
3 most favorable to the state, resolving all conflicts therein and indulging all
4 permissible inferences therefrom in favor of the verdict,” to conclude “whether the
5 evidence, viewed in this manner, could justify a finding by any rational trier of fact
6 that each element of the crime charged has been established beyond a reasonable
7 doubt.” State v. Storey, 2018-NMCA-009, ¶ 45, 410 P.3d 256 (internal quotation
8 marks and citation omitted). Any evidence that supports a different result “does not
9 provide a basis for reversal because the jury is free to reject [the d]efendant’s version
10 of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.
11 {32} Defendant only challenges the first element of vehicular homicide—as the
12 jury was instructed, whether there was sufficient, admissible evidence to show that
13 Defendant operated a motor vehicle while “under the influence of marijuana and/or
14 methadone[,] a drug.” See UJI 14-240B NMRA (defining the elements of
15 “[h]omicide by vehicle; driving under the influence”). Defendant argues that there
16 was insufficient evidence because a showing of marijuana and methadone in the
17 bloodstream does not necessarily establish impairment and the SFSTs cannot be
18 treated as scientific tests to measure marijuana impairment. Viewing the evidence in
19 the light most favorable to the guilty verdict, we conclude that the jury reasonably
26 1 found that Defendant operated a motor vehicle while under the influence of
2 marijuana and/or methadone.
3 {33} Defendant admitted that she took marijuana and methadone in the morning
4 before driving her brother to an appointment and hitting Victim with the truck on the
5 way home in the afternoon. Defendant did not recall hitting Victim and the road
6 showed no signs that the truck’s brakes engaged at all before hitting another car. As
7 we have explained, the expert connected the Sergeant’s observations made during
8 the SFSTs to impairment by marijuana, and during the SFSTs, Defendant struggled
9 to follow instructions and maintain her balance. Although Defendant presented
10 evidence that she hit Victim with the truck because she suffered from a lack of sleep
11 and a possible seizure disorder, in light of the verdict, we assume the jury rejected
12 her version of the facts. See Rojo, 1999-NMSC-001, ¶ 19. We hold that the State’s
13 evidence was sufficient to support the jury’s conclusion that Defendant was under
14 the influence of marijuana and/or methadone to such a degree that rendered her
15 incapable of safely driving a vehicle. See UJI 14-240B.
16 III. The District Court Did Not Erroneously Deny Defendant’s Proposed 17 Jury Instructions
18 {34} Defendant last argues that the district court improperly refused requested jury
19 instructions regarding diminished capacity, conscious wrongdoing, and an expanded
20 elements instruction that included both. Specifically, Defendant requested that the
21 instructions allow the jury to consider whether Defendant (1) knew that using
27 1 marijuana and/or methadone would impair her ability to safely operate a vehicle; (2)
2 could know the dangerousness of her conduct; and (3) believed that taking marijuana
3 and methadone as prescribed would impair her ability to safely operate a motor
4 vehicle. In the brief in chief, Defendant additionally challenged the district court’s
5 denial of an instruction relating to the “inability to form a deliberate intention,” but
6 Defendant abandoned that challenge in the reply brief and regardless, Defendant
7 withdrew the proposed instruction on this topic in the district court. Otherwise,
8 because Defendant preserved the jury instruction challenges at trial, we review for
9 reversible error and consider “whether a reasonable juror would have been confused
10 or misdirected by the jury instruction[s].” See State v. Benally, 2001-NMSC-033,
11 ¶ 12, 131 N.M. 258, 34 P.3d 1134 (internal quotation marks and citation omitted).
12 {35} “[J]uror confusion or misdirection may stem not only from instructions that
13 are facially contradictory or ambiguous, but from instructions which, through
14 omission or misstatement, fail to provide the juror with an accurate rendition of the
15 relevant law.” Id. While we agree with Defendant that reversible error can occur
16 when a court fails to give an instruction on the defendant’s theory of a case when
17 evidence at trial supports giving that instruction, see State v. Hertzog, 2020-NMCA-
18 031, ¶ 11, 464 P.3d 1090, the instructions ultimately provided by the district court
19 ensured that the jury would consider whether Defendant knew that using the
20 marijuana and methadone as prescribed would impair her ability to safely drive.
28 1 {36} Specifically, the instruction that established the elements of the crime
2 included as an element that Defendant “was not involuntarily intoxicated” or “if
3 [D]efendant was involuntarily intoxicated, then [D]efendant nonetheless knew what
4 she was doing or understood the consequence of her act.” The jury was additionally
5 instructed that “[i]ntoxication is involuntary if: a person becomes intoxicated by
6 using drugs without knowing the intoxicating character of the drugs and without
7 willingly assuming the risk of possible intoxication.” Thus, the instructions required
8 the jury to determine either that Defendant knew that the substance could be
9 intoxicating or that she acted knowing what she was doing or understanding the
10 consequences. A reasonable juror therefore would not have been confused or
11 misdirected in the absence of Defendant’s requested jury instructions, and the
12 instructions given allowed the jury to fully consider Defendant’s theory of the case.
13 We therefore hold that the district court did not erroneously deny Defendant’s
14 requested jury instructions.
15 CONCLUSION
16 {37} For the above reasons, we affirm.
17 {38} IT IS SO ORDERED.
18 ______________________________ 19 KATHERINE A. WRAY, Judge
29 1 WE CONCUR:
2 ___________________________________ 3 KRISTINA BOGARDUS, Judge
4 ___________________________________ 5 SHAMMARA H. HENDERSON, Judge