State v. Hughey

2005 NMCA 114, 119 P.3d 188, 138 N.M. 308
CourtNew Mexico Court of Appeals
DecidedJune 27, 2005
DocketNo. 24,732
StatusPublished
Cited by7 cases

This text of 2005 NMCA 114 (State v. Hughey) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hughey, 2005 NMCA 114, 119 P.3d 188, 138 N.M. 308 (N.M. Ct. App. 2005).

Opinion

OPINION

FRY, Judge.

{1} The State appeals from an order excluding evidence of Defendant’s blood alcohol content (BAC) tested four hours after the accident caused by Defendant. In State v. Silago, 2005-NMCA-100, ¶¶ 12-15, 23, 138 N.M. 301, 119 P.3d 181, 2005 WL 1994285 [No. 24,854 (N.M. Ct.App. June 27, 2005) ], filed today, we held that a trial court erroneously excluded evidence of the defendant’s BAC based on a flawed reading of our case law on the relation back of BAC evidence, and we remanded that case so the trial court could consider whether to admit or exclude the evidence under proper principles of law. This case provides us with an opportunity to review another trial court’s decision to exclude such evidence where the trial court appeared to use proper legal principles. Because the trial court did not abuse its discretion in performing its gatekeeping function, we affirm.

BACKGROUND

{2} The parties do not dispute that Defendant admitted to drinking two beers at 8:30 p.m., that the accident occurred at 11:30 p.m., and that a blood test four hours after the accident measured Defendant’s BAC at 0.10. Defendant moved in limine for exclusion of the BAC, arguing that the BAC four hours after the accident was relevant only if it tended to show what Defendant’s BAC was at the time Defendant was driving. Relying on State v. Baldwin, 2001-NMCA-063, 130 N.M. 705, 30 P.3d 394, Defendant argued that the State had to introduce some evidence providing a nexus between the BAC at the time of driving and the BAC four hours later. Id. ¶ 8. There was no behavior evidence suggesting that Defendant’s BAC was over the legal limit at the time of the accident, and Defendant argued that even scientific evidence purporting to extrapolate back from the BAC of 0.10 was unreliable.

{3} At the hearing on Defendant’s motion, Defendant presented the testimony of Dr. Edward Reyes, whom the trial court accepted as an expert in pharmacokinetics. Reyes testified that he could not determine Defendant’s BAC at the time of driving based on her BAC four hours later because there are many variables that would affect the calculation, such as adrenaline in Defendant’s system or food in her stomach, either of which would slow the absorption of alcohol, and Defendant’s metabolic rate. He explained that the body is absorbing alcohol when alcohol is in the stomach, and that in this absorption phase, the BAC is increasing. Once the stomach empties, the contents go through the small intestine, which is where about 90% of alcohol absorption takes place. When absorption is complete, the BAC peaks and then begins to decrease as the alcohol is metabolized. A surge of adrenaline, such as might occur during a car accident, or food in the stomach could delay absorption for up to four hours. Reyes concluded that uncertainty about these various factors and about Defendant’s metabolic rate prevented him from making even an educated guess about Defendant’s BAC at the time of driving.

{4} The State’s expert, Curtis Caylor, accepted by the trial court as an expert in toxicology, also testified at the hearing. Caylor stated that in order to determine Defendant’s BAC at the time of driving based on her BAC four hours later, a calculation known as retrograde extrapolation, one would have to make several assumptions. One would have to assume that Defendant had been drinking over a period of time, that she had reached her peak or plateau level, and that she had no alcohol to drink after the accident. Caylor agreed with Reyes that adrenaline or food in the stomach would slow alcohol absorption, but it would not stop it. Although Caylor could not provide a range of average absorption rates, he testified that average absorption time is from fifteen minutes to one hour after ingestion, regardless of the amount of alcohol in the stomach. Caylor did not give an opinion as to Defendant’s likely BAC at the time of driving, but a reasonable inference from his testimony was that it was higher than the BAC of 0.10 measured four hours after the accident.

{5} After hearing the testimony of Reyes and Caylor, the trial court stated that it found Reyes’s testimony “compelling” and ruled that it would not allow testimony on retrograde extrapolation at trial. The court entered a written order excluding the results of Defendant’s BAC test.

DISCUSSION

{6} The State argues that the trial court erroneously excluded Defendant’s BAC test results because it misapplied Baldwin. While the admission and exclusion of evidence is ordinarily within the sound discretion of the trial court, “the threshold question of whether the trial court applied the correct evidentiary rule or standard is subject to de novo review on appeal.” State v. Torres, 1999-NMSC-010, ¶ 28, 127 N.M. 20, 976 P.2d 20.

{7} Baldwin and subsequent cases involve the question of what constitutes sufficient evidence of BAC at the time of driving when there is a delay between the time of driving and the testing of BAC.2001-NMCA-063, ¶ 2; State v. Christmas, 2002-NMCA-020, ¶ 19, 131 N.M. 591, 40 P.3d 1035; State v. Martinez, 2002-NMCA-043, ¶ 1, 132 N.M. 101, 45 P.3d 41. The thrust of the State’s argument is that this line of cases addresses only the sufficiency of the evidence and says nothing about the admissibility of BAC evidence, which is the issue in this case. We believe these cases provide context for determining the admissibility of BAC evidence.

■ {8} In any case where the State attempts to prove a violation of the per se DWI statute, which requires a minimum specific BAC at the time “[t]he defendant operated a motor vehicle,” UJI 14-4503 NMRA, the critical inquiry is how to determine the defendant’s BAC at the time of driving if there is a significant delay between the time of driving and the time BAC is measured. “[T]he longer the delay between the time of [the] incident and [the] sample collection, the more difficult it becomes, scientifically, to draw reasonable inferences from one data point, back to the driving time.” Christmas, 2002-NMCA-020, ¶ 20, 131 N.M. 591, 40 P.3d 1035 (internal quotation marks and citations omitted). Consequently, when the delay between driving and testing is significant, the state must prove a nexus between the defendant’s BAC score and the time of driving through evidence corroborating the inference that the defendant’s BAC at the time of driving was at the statutory level of 0.08 or above. See Baldwin, 2001-NMCA-063, ¶¶ 4, 14, 24, 130 N.M. 705, 30 P.3d 394 (reversing conviction where corroborative evidence was insufficient to support relation-back inference when the delay was two hours and fifteen minutes); Christmas, 2002-NMCA-020, ¶ 6, 131 N.M. 591, 40 P.3d 1035 (assessing corroborative evidence where the delay was “about an hour”); Martinez, 2002-NMCA-043, ¶¶ 11, 13, 132 N.M. 101, 45 P.3d 41 (evaluating corroborative evidence where the delay was one and a half hours). We have declined to provide an exhaustive list of the types of corroborative evidence that would suffice, but we have said that

[t]he evidence might include a police officer’s observation of significant incriminating behavior on the part of the driver, or the evidence might include expert testimony relating the test result back in time to the time of driving.

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Related

State v. Reger
New Mexico Court of Appeals, 2023
State v. Hughey
2007 NMSC 036 (New Mexico Supreme Court, 2007)
State v. Downey
2007 NMCA 046 (New Mexico Court of Appeals, 2007)
State v. Day
2006 NMCA 124 (New Mexico Court of Appeals, 2006)
State v. Hughey
119 P.3d 188 (New Mexico Court of Appeals, 2005)
State v. Silago
2005 NMCA 100 (New Mexico Court of Appeals, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
2005 NMCA 114, 119 P.3d 188, 138 N.M. 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hughey-nmctapp-2005.