State v. Crutcher

Opinion

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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 v. NO. 34,207 5 JOSEPH CRUTCHER, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Benjamin Chavez, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 John Kloss, Assistant Attorney General 12 Albuquerque, NM

13 for Appellee

14 Jorge A. Alvarado, Chief Public Defender 15 Santa Fe, NM 16 Steven J. Forsberg, Assistant Appellate Defender 17 Albuquerque, NM

18 for Appellant

19 MEMORANDUM OPINION

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1 BUSTAMANTE, Judge. 2 {1} Defendant-Appellant Joseph Crutcher appeals his conviction for driving under 3 the influence of intoxicating liquor (DWI), contrary to NMSA 1978, Section 66-8-102 4 (2010). He appeals from the district court’s review of his on-record appeal from 5 metropolitan court. Defendant raises two issues on appeal to this Court: first, he 6 claims that the State failed to lay a proper foundation for the admission of his breath 7 alcohol test (BAT) results; and second, he contends that he was not provided with a 8 reasonable opportunity to obtain an independent blood alcohol test. Defendant’s first 9 issue is controlled by our Court’s recent decision in State v. Hobbs, 2016-NMCA- 10 , P.3d (No. 33,715, Dec. 22, 2015). We further conclude that Defendant’s 11 second issue was abandoned. We affirm. 12 BACKGROUND 13 {2} Following the administration of standardized field sobriety tests (SFSTs), 14 Defendant was arrested on suspicion of DWI by Officer Daniel Galvan of the 15 Albuquerque Police Department. Defendant consented to the administration of a 16 breath alcohol test. At trial in metropolitan court, the BAT results were admitted over 17 Defendant’s objection. The district court dismissed Defendant’s on-record appeal, 18 finding that the issue raised by Defendant in district court had not been adequately 19 preserved. Because this is a memorandum opinion and the parties are familiar with the

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1 facts and procedural background, we reserve discussion of the pertinent facts within 2 the context of Defendant’s arguments. 3 DISCUSSION 4 {3} Defendant raises two issues on appeal: (1) whether the trial court abused its 5 discretion in admitting his BAT results because the State failed to provide evidence 6 that the gas canister attached to the breath testing machine used to test his breath 7 alcohol content was approved by the Scientific Laboratory Division of the Department 8 of Health (SLD) and (2) whether he received a reasonable opportunity to arrange for 9 an independent chemical test. 10 I. BAT Results Were Properly Admitted 11 {4} Defendant’s brief in chief asserts that the trial court abused its discretion by 12 admitting his BAT results into evidence. Specifically, Defendant claims that the State 13 did not lay a proper foundation for the admission of the BAT results by failing to 14 present evidence that the gas canister used was approved by SLD. In response, the 15 State’s answer brief makes two arguments: first, that Defendant did not preserve the 16 foundational argument before the trial court, and second, that even if the argument 17 was properly preserved, the State met all foundational requirements for admission of 18 the BAT results. 19 {5} While we note the State’s concern that the argument raised in the metropolitan 20 court is not identical to that raised in district court, ultimately, Defendant cannot be

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1 successful with respect to this issue because of our recent decision in Hobbs. After the 2 State filed its answer brief, and before Defendant’s reply brief was filed, this Court 3 filed Hobbs. Defendant’s reply brief acknowledges that Hobbs is dispositive with 4 respect to this issue, but “argues that Hobbs was wrongly decided and stands on his 5 brief[]in[]chief on this issue.” However, the arguments raised in Defendant’s brief in 6 chief were previously considered in Hobbs. See 2016-NMCA- , ¶ 11-22. We decline 7 to revisit the issue. See generally Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 15, 8 134 N.M. 43, 73 P.3d 181 (“We require special justification in order to depart from 9 precedent.”); Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 33, 125 N.M. 721, 10 965 P.2d 305 (“Stare decisis is the judicial obligation to follow precedent, and it lies 11 at the very core of the judicial process of interpreting and announcing law.”). 12 {6} Applying Hobbs, we conclude that Defendant’s BAT results were properly 13 admitted.

14 II. Challenge to Reasonable Opportunity to Arrange for an Independent 15 Chemical Test Was Abandoned

16 {7} Defendant contends that he was not given a reasonable opportunity to arrange 17 for an independent chemical test pursuant to NMSA 1978, Section 66-8-109(B) 18 (1993). After Defendant was advised of his right to an independent chemical test, and 19 Defendant requested to exercise this right, Officer Galvan gave him a phone book and 20 a telephone. When Defendant stated that he did not know where to look in the phone

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1 book, Officer Galvan directed him to the medical section of the phone book. 2 Ultimately, Defendant did not obtain an independent chemical test. Defendant argued 3 before the trial court that Officer Galvan’s direction effectively “thwarted” his efforts 4 to obtain an independent test and constituted “state intervention.” 5 {8} Defendant acknowledges that he did not raise this argument in his on-record 6 appeal to the district court. Defendant explains that he did not do so because this 7 Court’s opinion in State v. Chakerian, 2015-NMCA-052, ¶ 20, 348 P.3d 1027 8 (holding that “[d]oing nothing more than providing access to a Yellow Pages 9 telephone book and telephone in the early morning hours fails to rise to the level of 10 meaningful cooperation required by Section 66-8-109(B)”), cert. granted, 2015- 11 NMCERT-005, P.3d (May 11, 2015), had not yet been filed. We can perceive 12 of no reason why this would have precluded Defendant from raising the issue before 13 the district court. We therefore decline to address this issue because Defendant 14 abandoned it by not raising it in the district court. See State v. Vigil, 2014-NMCA-096, 15 ¶¶ 17-18, 336 P.3d 380 (declining to review a defendant’s confrontation clause 16 challenge and holding that the issue had been abandoned where the defendant had 17 raised the issue in metropolitan court but not on appeal to the district court), cert. 18 granted, 2014-NMCERT-009, 337 P.3d 95. 19 {9} Finally, we address Defendant’s invitation to review the merits of his 20 unpreserved issue under the fundamental error doctrine. Defendant argues that

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1 “[g]iven the decision in Chakerian[, he] is indisputably innocent,” and points to State 2 v. Astorga, 2015-NMSC-007, ¶ 14, 343 P.3d 1245, in which our Supreme Court stated 3 that “[u]nder the doctrine of fundamental error, an appellate court has the discretion 4 to review an error that was not preserved in the trial court to determine if a 5 defendant’s conviction ‘shocks the conscience’ because . . . (1) the defendant is 6 ‘indisputably innocent[.]’” (alteration omitted) Defendant develops no further 7 argument to support his assertion that he is “indisputably innocent.” 8 {10} Assuming that any error occurred, however, Defendant has not demonstrated 9 that such error was fundamental. Defendant was found guilty under the per se theory 10 of DWI, see § 66-8-102(C) (providing that it is unlawful for a person to drive with a 11 breath alcohol concentration equal to or greater than .08 grams of alcohol within three 12 hours of driving, and that the alcohol was consumed before or during driving), and 13 Defendant’s BAT results were .12 and .12. See State v. Brennan, 1998-NMCA-176, 14 ¶ 15, 126 N.M. 389, 970 P.2d 161 (holding that a BAT result of .09 was sufficient to 15 uphold a per se DWI conviction). Defendant has not described a circumstance that 16 points to his indisputable innocence in this case. See State v. Dietrich, 17 2009-NMCA-031, ¶ 47, 145 N.M. 733, 204 P.3d 748 (“In a fundamental error 18 analysis, where the defendant has waived all error by failing to object, the Court’s 19 goal is to search for injustice.” (internal quotation marks and citation omitted)).

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1 {11} Accordingly, because Defendant has failed to develop his claim of fundamental 2 error, we decline to conclude that Defendant has demonstrated fundamental error in 3 this case. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 4 339, 110 P.3d 1076 (declining to entertain a cursory argument that included no 5 explanation of the party’s argument and no facts that would allow the Court to 6 evaluate the claim). 7 CONCLUSION 8 {12} For the foregoing reasons, we affirm. 9 {13} IT IS SO ORDERED.

10 11 MICHAEL D. BUSTAMANTE, Judge

12 WE CONCUR:

13 __________________________________ 14 JAMES J. WECHSLER, Judge

15 __________________________________ 16 TIMOTHY L. GARCIA, Judge