State v. L Vasquez

• Court: New Mexico Court of Appeals
• Decided: June 18, 2009
• Docket: 29,233
• Status: Unpublished

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 29,233

5 LOUIS VASQUEZ,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 Jerry H. Ritter, Jr., District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender 13 Navin H. Jayaram, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 KENNEDY, Judge.

18 Defendant appeals the district court’s judgment and sentence, convicting him

19 for broken tail lamps and fourth offense DWI, pursuant to a conditional plea of no

20 contest, in which Defendant reserved the right to appeal the exclusion of expert

21 testimony. We issued a notice of proposed summary disposition, proposing to affirm 1 the district court’s evidentiary ruling. Defendant has responded to our notice with a

2 memorandum in opposition. We have considered Defendant’s arguments and remain

3 unpersuaded that Defendant has demonstrated error. We affirm.

4 Defendant argues that the district court erred by excluding material testimony

5 of the defense’s expert witness, Dr. Reyes. [DS 4; MIO 4-6] Defendant argues that

6 Dr. Reyes testified that the breath machine, the IR8000, uses a breath alcohol ratio,

7 also known as the partition coefficient, of 2100:1 and that an individual’s absorption

8 phase may have a different partition coefficient as low as 990:1. [MIO 3] Dr. Reyes

9 began to testify that an individual’s difference in partition coefficient may produce an

10 inflated breath score and that, in his opinion, Defendant’s breath score may have been

11 below .08. [Id.] The district court excluded this portion of Dr. Reyes’s testimony on

12 the basis that evidence about variations in individual breath scores was irrelevant

13 when applying the relevant DUI statute, which is merely concerned with a reading of

14 the breathalyzer machine. [MIO 3-4]

15 “The admission or exclusion of evidence is within the discretion of the trial

16 court[,]” which we review for an abuse of that discretion. State v. Hughey, 2007-

17 NMSC-036, ¶ 9, 142 N.M. 83, 163 P.3d 470. “However, we review de novo ‘the

18 threshold question of whether the trial court applied the correct evidentiary rule or

19 standard.’” Id.

2 1 As we stated in our notice, the Legislature and the Scientific Laboratory

2 Division (SLD) have determined that the breath machine must be calibrated to

3 measure the grams of alcohol per 210 liters of breath. See NMSA 1978, § 66-8-

4 111(D) (2005) (“The determination of alcohol concentration shall be based on . . . the

5 grams of alcohol in two hundred ten liters of breath.”); see also 7.33.2.10(B)(2)(b)(i)

6 NMAC. While we assume that g/210 liters essentially codifies a 2100:1 ratio,

7 Defendant does not argue that the breath machine was calibrated to measure alcohol

8 in a manner contrary to law. Rather, Defendant argues that the manner of testing

9 breath alcohol content required by law may result in an inaccurate reading for

10 Defendant. We are limited to the requirements for testing breath alcohol content that

11 are established by statute and regulations. See U.S. Xpress, Inc. v. N.M. Taxation &

12 Revenue Dep’t., 2006-NMSC-017, ¶ 11, 139 N.M. 589, 136 P.3d 999 (“Unless a

13 statute violates the Constitution, ‘[w]e will not question the wisdom, policy, or

14 justness of legislation enacted by our Legislature.’” (alteration in original)); State v.

15 Elliott, 2001-NMCA-108, ¶ 14, 131 N.M. 390, 37 P.3d 107 (“We do not read words

16 into the statutes, particularly when the [L]egislature has seen fit not to include them.”).

17 In response to our notice Defendant merely asserts that the testimony would

18 discredit the test score. [MIO 4-6] He does not demonstrate why the testimony that

3 1 his individual partition coefficient may produce an inflated breath score is relevant

2 under the applicable standards promulgated by the Legislature and SLD. Defendant

3 also emphasizes the material prejudice his defense suffered by the exclusion of the

4 testimony indicating that his breath score may have been inflated. [Id.] Absent more

5 evidence, this possibility does not rise above speculation. Defendant has not met his

6 burden of showing error by arguing, in effect, that his defense was impaired by the

7 exclusion of evidence that is not relevant under the governing standards.

8 For these reasons and those stated in our notice, we hold Defendant has not

9 shown that the district court abused its discretion by excluding the expert testimony

10 on relevancy grounds. See Hughey, 2007-NMSC-036, ¶ 9. We affirm.

11 IT IS SO ORDERED.

12 ___________________________________ 13 RODERICK T. KENNEDY, Judge

14 WE CONCUR:

15 ___________________________ 16 CYNTHIA A. FRY, Chief Judge

17 ___________________________ 18 TIMOTHY L. GARCIA, Judge