This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. A-1-CA-37306 4 ELLIE HUE OWENS 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 John A. Dean, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Martha Anne Kelly, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Caitlin C.M. Smith, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Chief Judge. 192 {1} Defendant Ellie Hue Owens appeals from his conviction for driving while under 1 the influence of intoxicating liquor or drugs (DWI). This Court’s calendar notice 2 proposed to summarily remand on Defendant’s ineffective assistance of counsel claim. 3 The State filed a memorandum in opposition to the proposed disposition. We are not 4 persuaded by the State’s arguments and remand. Because we remand, we do not 5 address Defendant’s other issues. 6 {2} This Court’s calendar notice proposed to remand for ineffective assistance of 7 counsel due to trial counsel’s failure to f ile a motion to suppress the results of the 8 blood draw on the basis that the blood was drawn by an emergency medical technician 9 (EMT) at the San Juan Regional Medical Center, contrary to State v. Garcia , 10 2016-NMCA-044, 370 P.3d 791. Garciaheld that under NMSA 1978, Section 66-8- 11 103 (1978), an EMT is not authorized to draw blood for the purpose of determining 12 alcohol or drug content under the Implie d Consent Act (Act), NMSA 1978, Section 13 66-8-105 to -112 (1978, as amended through 2015), and the results of the test were 14 therefore inadmissible. 2016-NMCA-044, ¶ 23. Based on our holding in Garcia , we 15 proposed to conclude that the record on appeal established a prima facie case of 16 ineffective assistance of counsel warran ting remand to the district court for an 17 evidentiary hearing. See State v. Dylan J. , 2009-NMCA-027, ¶ 42, 145 N.M.719, 204 18 P.3d 44 (recognizing that we “limit remand to those cases in which the record on 193 appeal establishes a prima facie cas e of ineffective assistance” (quoting State v. 1 Swavola , 1992-NMCA-089, ¶ 3, 114 N.M. 472, 840 P.2d 1238). 2 {3} The State argues that Defendant failed to make a prima facie showing of 3 prejudice because he cannot de monstrate the second prong of Strickland v. 4 Washington , 466 U.S. 668, 687 (1984), that but for counsel’s error in failing to move 5 to suppress the blood test, the result w ould have been di fferent. [MIO 5] See Dylan 6 J. , 2009-NMCA-027, ¶ 38 (stating that a defense is prejudiced if, as a result of the 7 deficient performance, “there was a reasonabl e probability that . . . the result of the 8 trial would have been different” (internal quotation marks and citation omitted). 9 Specifically, the State asserts that the resu lt would have been th e same because even 10 if the blood test had been suppressed, there was sufficient evidence for the jury to find 11 Defendant guilty under the impaired to the slightest degree theory, for which the jury 12 was also instructed. See State v. Sanchez , 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 13 P.3d 446 (defining “under the influence” as meaning that the defendant was “less able 14 to the slightest degree, either mentally or physically, or both, to exercise the clear 15 judgment and steady hand necessary to handle a vehicle with safety to the [defendant] 16 and the public.” (alteration, internal quotation marks, and citati on omitted)). [MIO 8; 17 RP 106] The State asserts there was evid ence of Defendant’s slurred speech, an odor 18 of alcohol on his person, his admission to drinking, an open can of beer in his car, his 194 poor performance on field sobriety tests that led officers to believehe was impaired, 1 and a presumptive breath test taken by the homeless shelter where Defendant resided 2 confirming the presence of alcohol. [MIO 9] 3 {4} We propose to conclude that even considering the evidence to support 4 impairment to the slightest degree, we cannot say that Defendant was not prejudiced 5 by the blood draw results, which showed a blood alcohol content of 0.14. [DS 3] See 6 State v. Gardner , 1998-NMCA-160, ¶ 21, 126 N.M. 125, 967 P.2d 465 (holding that 7 where the only scientific evidence—blood test results—presented at trial was 8 erroneously admitted, the court cannot say that the error is harmless despite 9 overwhelming evidence including the defendant’s erratic driving, appearance, 10 bloodshot eyes, slurred speech, the odor of alcohol, and failed field sobriety tests). 11 {5} For all of these reasons, and those stated in the calendar notice, we remand to 12 the district court for an evidentiary hearing on Defendant’s ineffective assistance of 13 counsel claim. 14 {6} IT IS SO ORDERED. 15

_______________________________ 16 LINDA M. VANZI, Chief Judge 17
WE CONCUR: 18

____________________________ 195 MICHAEL E. VIGIL, Judge 1

____________________________ 2 STEPHEN G. FRENCH, Judge 3