This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 34,318 4 ISAAC A. MONK, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Judith K. Nakamura, District Judge 8 Hector H. Balderas, Attorney General 9 Maris Veidemanis, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Santa Fe, NM 14 Josephine H. Ford, Assistant Public Defender 15 Albuquerque, NM 16 for Appellant 17 MEMORANDUM OPINION 18 WECHSLER, Judge. 192 {1} Defendant Isaac Monk appeals his convic tion for driving under the influence 1 of intoxicating liquor or drugs (DWI), contrary to NMSA 1978, § 66-8-102 (2010). 2 On appeal, Defendant argues that, becauseno uncertainty computation was applied 3 to his breath alcohol test (BAT) results, th e results are unreliable such that admission 4 into evidence at trial constituted an abuse of discretion. Defendant additionally argues 5 that admission of his BAT results was improper under Rule 11-403 NMRA. Finally, 6 Defendant argues that, if his BAT result s were inadmissible under either theory, 7 admission did not constitute harmless error. Applying the rationale articulated in State 8 v. Montoya , 2016-NMCA-___, ¶ 16, ___ P.3d ___ (N o. 34,298, June 29, 2016), we 9 conclude that Defendant’s o ffered testimony and evidence fail to make an affirmative 10 showing that reason exists to doubt the re liability of his SLD-approved chemical test 11 results. We further conclude that Rule 11- 403 does not require exclusion. As a result, 12 the admission of Defendant’s BAT results di d not constitute an abuse of discretion. 13 Given our conclusion as to admissibility, we need not conduct an analysis into 14 Defendant’s harmless error claim. We affirm. 15 BACKGROUND 16 {2} On March 6, 2011, Defendant was pulled over for failureto maintain a traffic 17 lane in violation of Albuquerque, N.M., Ordinan ces ch. 8, art. II, § 1-42. Officer Bruce 18 J. DeHerrera noted signs of impairment, including bloodshot, watery eyes and an odor 193 of alcohol emanating from Defendant’s person. Defendant complied with Officer 1 DeHerrera’s request that heperform field sobriety te sts. Following these tests, 2 Defendant was arrested on su spicion of DWI and was transported for breath alcohol 3 testing. Officer DeHerrera administeredDefendant’s BAT on the Intoxilyzer 8000 (IR 4 8000). Defendant submitted two breath samp les, which resulted in breath alcohol 5 content (BAC) readings of 0.11 and 0.12. On appeal, De fendant does not allege that 6 Officer DeHerrera failed to co mply with mandatory breath alcohol testing protocol or 7 that the specific IR 8000 used failed to meet existing regulatory requirements 8 promulgated by the New Mexico Department of Health Scientific Laboratory Division 9 (SLD). 10 {3} At his jury trial, Defendant’s BA T results were admitted over objection. 11 Defendant was convicted under Section 66-8-102(C), our per se DWI statutory 12 provision. The district court affirmed Defe ndant’s conviction. This appeal resulted. 13 STANDARD OF REVIEW 14 {4} We review a trial court’s admission of evidence for an abuse of discretion. 15 State v. Jaramillo , 2012-NMCA-029, ¶ 17, 272 P.3d 682. “A trial court abuses its 16 discretion if its decision is obviously erroneous, arbitrary, or unwarranted.” Montoya , 17 2016-NMCA-___, ¶ 10 (alterations, internal quotation marks, and citation omitted). 18 ADMISSIBILITY OF BAT RESULTS 194 Scientific Evidence 1 {5} The similarities between this case and Montoyaare substantial. Each defendant 2 underwent breath alcohol testing on the IR 8000. Each defendant was represented by 3 the same trial counsel. Eachdefendant relied upon principl es of uncertainty inherent 4 to all systems of forensic measurement as the basis to challenge the reliability of 5 results generated by the IR 8000 and used the same expert witness as a conduit for this 6 argument. 7 {6} When a method for generating scientific evidence has gained general 8 acceptance, a trial court is ju stified in considering that method reliable in the absence 9 of “an affirmative showing that there is some reason to doubt the reliability of 10 accepted science[.]” Id. ¶ 15 (alterations and internal quotation marks omitted) 11 (quoting State v. Fuentes , 2010-NMCA-027, ¶ 28, 147 N.M. 761, 228 P.3d 1181). In 12 the instant case, Defendant offered expert testimony and documents in support of his 13 claim that the results generated by the IR8000 are too unreliable to be admitted under 14 Rule 11-702 NMRA. See Daubert v. Merrell Dow Pharm. , 509 U.S. 579, 589 (1993) 15 (“[T]he trial judge must ensure that any and all scientific testimony or evidence 16 admitted is not only relevant, but reliable. ”) In particular, expert witness Janine 17 Arvizu’s conclusion, that Defendant’s BAT re sults “are scientifi cally invalid in the 18 absence of an associated es timate of uncertainty,” mirrors the conclusion she provided 195 in Montoya

. See2016-NMCA-___, ¶ 22. (“[Arvizu’s] position is that SLD-approved 1 chemical test results, regardless of th e BAC reported, are never scientifically 2 reliable.”). 3 {7} Defendant makes a compelling argument as to the benefits of including an 4 uncertainty computation when reporti ng BAT results generated by the IR 8000. 5 However, Defendant’s admitted evidence fails to make “an affirmative showing that 6 there is some reason to doubt the reliability of accepted science[.]” Id. ¶ 15 (alteration, 7 internal quotation marks, and citation omitted). Defendant’s argument as to the 8 reliability of his BAT results therefore goes to the weight rather than the admissibility 9 of the evidence. See, e.g. , Lee v. Martinez , 2004-NMSC-027, ¶ 32, 136 N.M. 166, 96 10 P.3d 291 (holding that “deficiencies in calculating the rate of erro r” did not render the 11 polygraph results at issue inadmissible). 12 Application of Rule 11-403 13 {8} While it is unclear that Rule 11-403 was specifically raised below, in his brief 14 in chief on appeal, Defendant asserts that , under Rule 11-403, the court “may exclude 15 relevant evidence if its probative value is substantially outweighed by a danger of 16 . . . misleading the jury[.]” Defendant argue s that, in the absen ce of an uncertainty 17 estimate, a BAT result is potentially misleading because a jury could “misuse[] the 186 breath score to find [D]efendant guilty wh en it is probable that the [BAC] is not 1 actually [0].08 or above[.]” 2 {9} “Scientific evidence, once admitted, can carry with it an aura of infallibility.” 3 Montoya , 2016-NMCA-__, ¶ 30 (internal quotati on marks and citation omitted). Were 4 we convinced that it was “probable” thatDefendant’s BAC was below 0.08, the 5 proper conclusion would be exclusion. Ho wever, the testimony and evidence offered 6 in support of Defendant’s legal argument does not cause us to doubt the generally 7 accepted science underlying breath alcohol testing. See State v. Bearly , 1991-NMCA8 022, ¶ 13, 112 N.M. 50, 811 P.2d 83 (“[B]reath testing is generally regarded as highly 9 reliable.”). Therefore, the danger of misleading the jury did not substantially outweigh 10 the probative value of Defendant’s BAT re sults such that admission constituted an 11 abuse of discretion. See State v. Chamberlain , 1991-NMSC-094, ¶ 9, 112 N.M. 723, 12 819 P.2d 673 (“The trial court is vested withgreat discretion inapplying Rule [11- 13 ]403, and it will not be reversed abse nt an abuse of that discretion.”). 14 CONCLUSION 15 {10} Because the trial court’s admission of Defendant’s BAT results did not 16 constitute an abuse of discretion, we affirm. 17 {11} IT IS SO ORDERED. 18

____________ ____________________ 197 JAMES J. WECHSLER, Judge 1

WE CONCUR: 2

________________________________ 3 TIMOTHY L. GARCIA, Judge 4

________________________________ 5 M. MONICA ZAMORA, Judge 6