This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6
STATE OF NEW MEXICO, 7 Plaintiff-Appellant, 8

v. NO. 29,668 9 CHRISTOPHER HENRY, 10 Defendant-Appellee. 11

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY 12 Louis E. DePauli, Jr., District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 M. Anne Kelly, Assistant Attorney General 16 Albuquerque, NM 17 for Appellant 18 Hugh W. Dangler, Chief Public Defender 19 Santa Fe, NM 20 for Appellee 21 MEMORANDUM OPINION 22 WECHSLER, Judge. 232 The State appeals the district court’s grant of Defendant Christopher Henry’s 1 motion to dismiss a charge of aggravated driving while under the influence of 2 intoxicating liquor (DWI). This Court f iled a notice of proposed summary disposition 3 proposing to affirm on August 17, 2009. The State filed a memorandum in opposition 4 on September 8, 2009, which we have given due consideration. We affirm the district 5

court. 6 The State asks whether, in a DWI case, a physical copy of the breath alcohol 7 testing machine’s log book pages is a necessary part of the foundation for 8 admissibility of breath test results, or wh ether an officer’s testimony that he had 9 inspected the log book would be sufficient. Specifically, in the present case, the 10 magistrate court suppressed the breath test results “due to the [S]tate’s inability to 11 produce copies of the log book for the RBT-IV used to test the defendant by reason 12 that the State Police no longer had the app licable log book because the Scientific Lab 13 Division had discontinued use of the RBT-IV.” [DS 2] 14 This Court “review[s] an alleged error in the admission of ev idence for an abuse 15 of discretion.” State v. Martinez , 2007-NMSC-025, ¶ 7, 141 N.M. 713, 160 P.3d 894. 16 “The lower court’s ruling will be disturbed on appeal only when the facts and 17 circumstances of the case do not support [its] logic and effect.” Id. (alteration in 183 original) (internal quotation marks and citation omitted). We review a ruling on late 1 discovery for abuse of discretion. State v. Duarte , 2007-NMCA-012, ¶ 14, 140 N.M. 2 930, 149 P.3d 1027 (filed 2006). “In order to find an abuse of discretion, we must 3 conclude that the decision below was agai nst logic and not justified by reason.” Id. 4 (internal quotation marks and citation omitted). 5 In the docketing statement, the State cites Martinezas authority on the question 6 of whether an officer’s testimony can suffi ce in lieu of a physical copy of the log 7 book. [DS 3] The State’s memorandum in opposition informs us that an officer was 8 available to testify on the sc heduled day of trial regarding the status of the breath 9 testing machine. We assume without deciding that Martinezsupports the State’s 10 position. We understand, however, that the magistrate court suppressed the breath test 11 evidence due to the State’s untimely disclosureof the status of the machine. [MIO 2] 12 The officer’s testimony, although it might have provided the requisite foundation if 13 allowed, would not have cure d the untimely disclosure problem the magistrate court 14 intended to address. Further, as the distri ct court later observed, the State could have 15 proceeded in magistrate court on an impaired to the slightest degree theory without 16 the breath test results, although the charge w ould not be for aggravated DWI. [RP 38] 17 See NMSA 1978, § 66-8-102(A), (D) (2008). 184 Next, the State asks whether, when a magistrate court suppresses evidence and 1 dismisses a case, the State is permitted to refile in district court, and whether, if the 2 State refiles a case in these circumstances , a new time limit starts under Rule 5-604 3 NMRA. We address these two issues together. Although the docketing statement 4 frames these issues in generic terms, we anal yze them in the contex t of the facts of the 5 present case. 6 “We conduct a de novo review of the di strict court’s application of the 7 six-month rule.” State v. Rayburns , 2008-NMCA-050, ¶ 7, 143 N.M. 803, 182 P.3d 8 786. “However, we review the district c ourt’s determination re garding questions of 9 historical fact with the deference of the substantial evidence standard.” Id. 10 Rule 6-506(B) NMRA provides: “The trial of a criminal citation or complaint 11 shall be commenced within one hundred eighty-two (182) days after whichever of the 12 following events occurs latest: (1) the date of arraignment . . . .” As of January 15, 13 2009, Rule 6-506(E) provides: 14 In the event the trial of any person does not commence within the time 15 specified in Paragraph B of this rule or within the period of any 16 extension provided in this rule, the complaint or citation filed against 17 such person may be dismissed with prejudice or the court may consider 18 other sanctions as appropriate. 19 Before January 15, 2009, the ru le provided that the complaint “shall” be dismissed 205 with prejudice. Cf. Duran v. Eichwald, 2009-NMSC-030, ¶ 15, 146 N.M. 341, 210 1 P.3d 238 (discussing the New Mexico Supreme Court’s amendment of Rule 5-604(F) 2 NMRA in the same manner). 3 In the present case, the record proper reveals the following sequence of events. 4 Defendant was arraigned on June 11, 2008, and trial inmagistrate court was 5 eventually set for December 2, 2008. [RP 24] On the day of trial, before the trial 6 began, Defendant moved to suppress the breath alcohol results due to the State’s 7 failure to disclose the log book for the breath testing machine. [Id.; DS 2] The State 8 alleges that the log book was not availabl e because use of th e RBT-IV machine had 9 been discontinued. [DS 2] The magistratecourt granted Defendant’s motion, and the 10 State moved to dismiss. [Id.] The magi strate court granted the State’s motion on or 11 about December 15, 2008. [Id.] The State re filed the case in district court the same 12 day. [RP 1] The original time for trial under Rule 6-506(B) had run on December 10, 13 2008. [RP 25] 14 Defendant moved to dismiss the case in di strict court. [RP 24-27] The motion, 15 citing State v. Heinsen , 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040, 16 acknowledged that the St ate had the option of refiling the case in district court as it 17 did, but also pointed out that under Heinsen , the district court could properly inquire 186 into the reason the State was refiling. [R P 25] The motion argued that the State had 1 not timely disclosed evidence and that the State could have proceeded to trial on an 2 impairment basis even without the breath al cohol results. [RP 25- 26] Trial based on 3 impairment to the slightest degree, however , could not have resulted in an aggravated 4 DWI conviction, which is what the State appears to have sought. 5 The facts of the present case closely resemble those in Rayburns , which the 6 State invites this Court to reconsider. [MIO 13] There, the defendant (Rayburns) 7 moved in limine to exclude breath test results because the state had failed to timely 8 disclose certification of the machine. 2008-NMCA-050, ¶ 3. The magistrate court 9 granted the motion to exclude the evidence. Id. The state dismissed the charges and 10 refiled in district court. Id. ¶¶ 3, 4. The defendant argue d that the state’s intent in 11 dismissing the charges was to circumvent th e discovery sanction the magistrate court 12 had imposed for late disclosure. Id. ¶ 16. In affirming, we agreed that under Heinsen , 13 the state had not demonstrated a reasonabl e basis for dismissing and refiling the same 14 charges. Id. ¶ 17. 15 In the present case, the district court’s order of dismissal states: 16 3. The State dismissed the [M]agistrate [C]ourt case with the intent 17 to prosecute the aggravated chargein [D]istrict [C]ourt instead of 18 proceeding on the prosecution of the cas e in magistrate court absent the 19 suppressed evidence on a theory of impairment which only could have 207 resulted in a non-aggravated DWI upon conviction; 1 4. The suppression of the evidence dueto the fault of the State does 2 not provide a legitimate reason for the State to circumvent the 182 day 3 rule. 4 [RP 38] This rationale for dismissal is essentially the same as that in Rayburns . If the 5 State, alleged to be at fault in not providing the log book, were allowed to refile, it 6 would avoid the effect of the magistrate c ourt’s exclusion of th at evidence from trial. 7

In asking this Court to reconsider Rayburns , the State draws our attention to 8 Duarte , in which the state had disclosed certification and calibration of the breath 9 machine three days and one day, respectively, before trial. 2007-NMCA-012, ¶ 13. 10 [MIO 12] This Court held that, even assuming the state had breached its duty to 11 disclose, the defendant had not shown that the outcome of his trial would have been 12 different if he had more timely received the certification and calibration information. 13 Id. ¶ 19. We note significant differences between Duarte and the present case. First, 14 in Duarte , the district court denied the moti on to suppress and the defendant was 15 convicted. Id. ¶¶ 1, 7 In the present case, th e magistrate court granted the motion 16 to suppress, and Defendant wa s never tried. Analyzing the issue of prejudice would 17 require us to speculate wh ether Defendant would have incurred prejudice had he gone 188 to trial, which we decline to do. Second, Duarte did not implicate the six-month rule. 1 Finally, while in Duarte the defendant received the certification and calibration before 2 trial, in the present case, Defendant apparently never received any such information. 3 4 Finding no reason to reconsider Rayburns , we affirm the district court. 5 IT IS SO ORDERED. 6

_______________________________ 7 JAMES J. WECHSLER, Judge 8 WE CONCUR: 9

______________________________ 10 CYNTHIA A. FRY, Chief Judge 11

______________________________ 12 LINDA M. VANZI, Judge 13