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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. 34,318 5 ISAAC A. MONK, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Judith K. Nakamura, District Judge
9 Hector H. Balderas, Attorney General 10 Maris Veidemanis, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Chief Public Defender 14 Santa Fe, NM 15 Josephine H. Ford, Assistant Public Defender 16 Albuquerque, NM
17 for Appellant 18 MEMORANDUM OPINION 19 WECHSLER, Judge.
1 {1} Defendant Isaac Monk appeals his conviction for driving under the influence 2 of intoxicating liquor or drugs (DWI), contrary to NMSA 1978, § 66-8-102 (2010). 3 On appeal, Defendant argues that, because no uncertainty computation was applied 4 to his breath alcohol test (BAT) results, the results are unreliable such that admission 5 into evidence at trial constituted an abuse of discretion. Defendant additionally argues 6 that admission of his BAT results was improper under Rule 11-403 NMRA. Finally, 7 Defendant argues that, if his BAT results were inadmissible under either theory, 8 admission did not constitute harmless error. Applying the rationale articulated in State 9 v. Montoya, 2016-NMCA-___, ¶ 16, ___ P.3d ___ (No. 34,298, June 29, 2016), we 10 conclude that Defendant’s offered testimony and evidence fail to make an affirmative 11 showing that reason exists to doubt the reliability of his SLD-approved chemical test 12 results. We further conclude that Rule 11-403 does not require exclusion. As a result, 13 the admission of Defendant’s BAT results did not constitute an abuse of discretion. 14 Given our conclusion as to admissibility, we need not conduct an analysis into 15 Defendant’s harmless error claim. We affirm. 16 BACKGROUND 17 {2} On March 6, 2011, Defendant was pulled over for failure to maintain a traffic 18 lane in violation of Albuquerque, N.M., Ordinances ch. 8, art. II, § 1-42. Officer Bruce 19 J. DeHerrera noted signs of impairment, including bloodshot, watery eyes and an odor
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1 of alcohol emanating from Defendant’s person. Defendant complied with Officer 2 DeHerrera’s request that he perform field sobriety tests. Following these tests, 3 Defendant was arrested on suspicion of DWI and was transported for breath alcohol 4 testing. Officer DeHerrera administered Defendant’s BAT on the Intoxilyzer 8000 (IR 5 8000). Defendant submitted two breath samples, which resulted in breath alcohol 6 content (BAC) readings of 0.11 and 0.12. On appeal, Defendant does not allege that 7 Officer DeHerrera failed to comply with mandatory breath alcohol testing protocol or 8 that the specific IR 8000 used failed to meet existing regulatory requirements 9 promulgated by the New Mexico Department of Health Scientific Laboratory Division 10 (SLD). 11 {3} At his jury trial, Defendant’s BAT results were admitted over objection. 12 Defendant was convicted under Section 66-8-102(C), our per se DWI statutory 13 provision. The district court affirmed Defendant’s conviction. This appeal resulted. 14 STANDARD OF REVIEW 15 {4} We review a trial court’s admission of evidence for an abuse of discretion. 16 State v. Jaramillo, 2012-NMCA-029, ¶ 17, 272 P.3d 682. “A trial court abuses its 17 discretion if its decision is obviously erroneous, arbitrary, or unwarranted.” Montoya, 18 2016-NMCA-___, ¶ 10 (alterations, internal quotation marks, and citation omitted). 19 ADMISSIBILITY OF BAT RESULTS
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1 Scientific Evidence 2 {5} The similarities between this case and Montoya are substantial. Each defendant 3 underwent breath alcohol testing on the IR 8000. Each defendant was represented by 4 the same trial counsel. Each defendant relied upon principles of uncertainty inherent 5 to all systems of forensic measurement as the basis to challenge the reliability of 6 results generated by the IR 8000 and used the same expert witness as a conduit for this 7 argument. 8 {6} When a method for generating scientific evidence has gained general 9 acceptance, a trial court is justified in considering that method reliable in the absence 10 of “an affirmative showing that there is some reason to doubt the reliability of 11 accepted science[.]” Id. ¶ 15 (alterations and internal quotation marks omitted) 12 (quoting State v. Fuentes, 2010-NMCA-027, ¶ 28, 147 N.M. 761, 228 P.3d 1181). In 13 the instant case, Defendant offered expert testimony and documents in support of his 14 claim that the results generated by the IR 8000 are too unreliable to be admitted under 15 Rule 11-702 NMRA. See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 (1993) 16 (“[T]he trial judge must ensure that any and all scientific testimony or evidence 17 admitted is not only relevant, but reliable.”) In particular, expert witness Janine 18 Arvizu’s conclusion, that Defendant’s BAT results “are scientifically invalid in the 19 absence of an associated estimate of uncertainty,” mirrors the conclusion she provided
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1 in Montoya. See 2016-NMCA-___, ¶ 22. (“[Arvizu’s] position is that SLD-approved 2 chemical test results, regardless of the BAC reported, are never scientifically 3 reliable.”). 4 {7} Defendant makes a compelling argument as to the benefits of including an 5 uncertainty computation when reporting BAT results generated by the IR 8000. 6 However, Defendant’s admitted evidence fails to make “an affirmative showing that 7 there is some reason to doubt the reliability of accepted science[.]” Id. ¶ 15 (alteration, 8 internal quotation marks, and citation omitted). Defendant’s argument as to the 9 reliability of his BAT results therefore goes to the weight rather than the admissibility 10 of the evidence. See, e.g., Lee v. Martinez, 2004-NMSC-027, ¶ 32, 136 N.M. 166, 96 11 P.3d 291 (holding that “deficiencies in calculating the rate of error” did not render the 12 polygraph results at issue inadmissible). 13 Application of Rule 11-403 14 {8} While it is unclear that Rule 11-403 was specifically raised below, in his brief 15 in chief on appeal, Defendant asserts that, under Rule 11-403, the court “may exclude 16 relevant evidence if its probative value is substantially outweighed by a danger of 17 . . . misleading the jury[.]” Defendant argues that, in the absence of an uncertainty 18 estimate, a BAT result is potentially misleading because a jury could “misuse[] the
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1 breath score to find [D]efendant guilty when it is probable that the [BAC] is not 2 actually [0].08 or above[.]” 3 {9} “Scientific evidence, once admitted, can carry with it an aura of infallibility.” 4 Montoya, 2016-NMCA-__, ¶ 30 (internal quotation marks and citation omitted). Were 5 we convinced that it was “probable” that Defendant’s BAC was below 0.08, the 6 proper conclusion would be exclusion. However, the testimony and evidence offered 7 in support of Defendant’s legal argument does not cause us to doubt the generally 8 accepted science underlying breath alcohol testing. See State v. Bearly, 1991-NMCA- 9 022, ¶ 13, 112 N.M. 50, 811 P.2d 83 (“[B]reath testing is generally regarded as highly 10 reliable.”). Therefore, the danger of misleading the jury did not substantially outweigh 11 the probative value of Defendant’s BAT results such that admission constituted an 12 abuse of discretion. See State v. Chamberlain, 1991-NMSC-094, ¶ 9, 112 N.M. 723, 13 819 P.2d 673 (“The trial court is vested with great discretion in applying Rule [11- 14 ]403, and it will not be reversed absent an abuse of that discretion.”). 15 CONCLUSION 16 {10} Because the trial court’s admission of Defendant’s BAT results did not 17 constitute an abuse of discretion, we affirm. 18 {11} IT IS SO ORDERED.
19 ________________________________
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1 JAMES J. WECHSLER, Judge
2 WE CONCUR:
3 ________________________________ 4 TIMOTHY L. GARCIA, Judge
5 ________________________________ 6 M. MONICA ZAMORA, Judge