State v. Silago

2005 NMCA 100, 119 P.3d 181, 138 N.M. 301
CourtNew Mexico Court of Appeals
DecidedJune 27, 2005
Docket24,854
StatusPublished
Cited by6 cases

This text of 2005 NMCA 100 (State v. Silago) 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. Silago, 2005 NMCA 100, 119 P.3d 181, 138 N.M. 301 (N.M. Ct. App. 2005).

Opinion

OPINION

FRY, Judge.

{1} In this case we clarify our case law concerning the relation back of blood alcohol concentration (BAC) levels in DWI cases. See State v. Christmas, 2002-NMCA-020, 131 N.M. 591, 40 P.3d 1035; State v. Martinez, 2002-NMCA-043, 132 N.M. 101, 45 P.3d 41; State v. Baldwin, 2001-NMCA-063, 130 N.M. 705, 30 P.3d 394 (collectively referred to in this opinion as “the BAC nexus cases”). The trial court denied the State’s motion in limine seeking admission of expert testimony on retrograde extrapolation, reasoning that our case law does not permit such testimony where the blood or breath sample is taken more than two hours after the time of driving, the BAC is under the statutory limit, and there is no behavior evidence of intoxication. We reverse the trial court’s ruling because it reflects a misinterpretation of law and remand for a new hearing on the State’s motion in limine.

BACKGROUND

{2} As a result of an automobile accident, Defendant was charged with homicide by motor vehicle, three counts of great bodily harm by motor vehicle, and aggravated DWI. At the scene of the accident, which occurred at about 5:45 a.m., Defendant told an investigating officer that he had consumed alcohol, but that he had stopped drinking at midnight. The officer administered two field sobriety tests, which Defendant passed. Before the officer could administer a third test, Defendant complained of pain. Medical personnel transported Defendant to a hospital where an officer sought Defendant’s permission to obtain a blood sample. When Defendant refused, officers obtained a search warrant, and hospital personnel finally drew Defendant’s blood at 12:05 p.m., six hours and twenty minutes after the accident. Another blood sample was taken at 1:09 p.m.

{3} Prior to trial, the State filed a motion in limine seeking the trial court’s advance ruling on the admissibility of certain exhibits and testimony, including expert testimony “[r]egarding blood-alcohol concentration and extrapolation of previous levels.” At the hearing on the motion, the State intended to make an offer of proof regarding the expert’s testimony, but after the court and counsel discussed the BAC nexus cases, the State asked for another hearing in order to permit the expert to testify in person. The court agreed.

{4} At the next hearing, the State called Ruth Luthi, a forensic toxicologist with the Scientific Laboratories Division (SLD), who explained that retrograde extrapolation is used to calculate a given BAC back to a prior time using generally accepted rates of alcohol burn-off. Assuming that Defendant had stopped drinking at midnight, that Defendant stopped driving at 5:45 a.m., and that Defendant’s BAC six hours after driving was 0.02, Luthi testified that she was very comfortable giving an opinion as to the likely BAC range for Defendant at the time he was driving. Over Defendant’s objection, the trial court accepted Luthi as an expert in retrograde extrapolation. Defense counsel waived cross-examination, and Luthi left the witness stand.

{5} At this point, the prosecutor thought the trial court had ruled that Luthi would be allowed to testify at trial. However, the court stated that it had not heard enough evidence on which to decide “whether in this case with these facts” extrapolation evidence could go before the jury. The prosecutor stated that he thought Luthi had already testified about the facts in the ease as they pertained to extrapolation, but that if the court wanted more evidence, he would like to recall Luthi to the stand.

{6} Although defense counsel initially voiced no objection to the recall of Luthi, the trial court asked, “Proeedurally, is there a mechanism available that allows me to put her back on without it being error on behalf of the defense?” There ensued a colloquy between the court and the prosecutor as to whether Luthi had actually testified about the result of retrograde extrapolation-in this case under these facts. The prosecutor again offered to put Luthi back on the stand, and this time defense counsel objected. Without ruling on the objection, the trial court told the prosecutor to call his next witness.

{7} The prosecutor said he was calling Officer Mace to testify about Defendant’s whereabouts between the scene of the accident and the blood draw, which was an issue raised by the trial court in the course of the hearing. But before Mace could take the stand, the trial court and the prosecutor engaged in another colloquy about whether the results of Defendant’s blood tests were in evidence. The prosecutor then called Mace and attempted to get the lab report of Defendant’s first blood test into evidence through Mace. When the court sustained defense counsel’s hearsay objection to the lab report, the prosecutor again asked to recall Luthi, this time to lay a foundation for admission of the lab report.

{8} Again, the trial court stated that it was “not familiar with the mechanism that allows a witness once [sic] concluded testimony to be recalled” and asked the prosecutor for case law supporting such a recall. The prosecutor responded that recalling a witness is customary when new matters come up and noted that Luthi would again be subject to cross-examination if she were recalled. Ultimately, the court ruled that it would not allow the State to recall Luthi because the court was “not familiar” with the “ability to bring the witness back when it is directly in a dispositive motion and not in a rebuttal setting.” However, the trial court permitted the State to question Luthi in order to preserve its objection to the trial court’s ruling on appeal.

{9} Luthi testified that she is the head of SLD’s implied consent section, and consequently, she is the custodian of all blood samples and BAC reports that come in. She identified the lab report and testified that it appeared to be properly filled out. The report showed a BAC of 0.02. Luthi stated that, assuming that Defendant’s drinking stopped around midnight, that the accident occurred between 5:45 and 6:00 a.m., and that Defendant’s BAC at 12:05 p.m. was 0.02, retrograde extrapolation would lead to the conclusion that Defendant’s BAC at the time of driving was between 0.08 and 0.14.

{10} The trial court then stated its ruling on the State’s motion in limine. In the court’s view, by seeking admission of Luthi’s extrapolation testimony, the State was asking for an expansion of the perimeters of the BAC nexus cases so that a six-hour delay in testing would be acceptable. The trial court further noted that, unlike the circumstances in the BAC nexus cases, Defendant’s BAC tested below the statutory limit and Defendant passed his field sobriety tests. Based on these facts and the case law, the trial court concluded that “the law does not allow Luthi to testify.”

{11} On appeal, the State argues the trial court erred in (1) excluding Luthi’s testimony on retrograde extrapolation, (2) refusing to make a pretrial ruling on the admissibility of Luthi’s testimony regarding impairment, (3) denying the State’s request to recall Luthi to the stand for additional examination, and (4) excluding the report of Defendant’s BAC. Because we reverse on the first issue, we address the other three issues only to provide guidance on remand.

DISCUSSION

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Related

State v. Smith
New Mexico Court of Appeals, 2017
State v. McClaugherty
2007 NMCA 041 (New Mexico Court of Appeals, 2007)
State v. Day
2006 NMCA 124 (New Mexico Court of Appeals, 2006)
State v. Hughey
2005 NMCA 114 (New Mexico Court of Appeals, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
2005 NMCA 100, 119 P.3d 181, 138 N.M. 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-silago-nmctapp-2005.