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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40881

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

FELICIA SARRACINO,

Defendant-Appellant.

APPEAL FROM THE METROPOLITAN COURT OF BERNALILLO COUNTY

Renee Torres, Metropolitan Court Judge

Raúl Torrez, Attorney General

Santa Fe, NM

Meryl E. Francolini, Assistant Solicitor General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Mary Barket, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

YOHALEM, Judge.

{1} Defendant Felicia Sarracino appeals her conviction in metropolitan court for 

driving while intoxicated (DWI) (first offense), contrary to NMSA 1978, Section 66-8-

102(A), (C) (2016). Defendant argues as follows: (1) the admission of two segments of 

a recorded 911 call made by Nicole Koburi, an employee of the store where Defendant 

also worked, violated the Confrontation Clause of the Sixth Amendment to the United 

States Constitution; (2) alternatively, the admission of the two segments of the 911 
recording constituted inadmissible hearsay; and (3) the metropolitan court abused its 

discretion in admitting Defendant’s breath alcohol test results without sufficient evidence 

that the collection and testing of the breath sample complied with state department of 

health regulations. For the reasons that follow, we affirm. 

BACKGROUND

{2} On July 19, 2022, Koburi made a 911 call at 6:50 p.m. from the parking lot of a 

store in Albuquerque where Defendant and Koburi were both employed. Koburi reported 

to the 911 operator that someone (later identified as Defendant) had gotten extremely 

drunk in the parking lot and had been passed out in a hot car for over an hour. Koburi 

reported that Defendant had just regained consciousness, was still in her car, and was 

“belligerently drunk.” At that point, the 911 operator asked whether an ambulance was 

needed, and Koburi responded that she wasn’t sure. The operator then turned to 

questioning Koburi about whether Defendant was going to drive. Koburi responded that 

Defendant had the keys to her car, the car was running, and that “she’s refus[ed] to get 

out and she [was] screaming and throwing things.” Loud yelling could be heard in the 

background. The 911 operator also asked about the vehicle’s make and model. 

{3} The next segment of the call was excluded from evidence by the district court 

and is not at issue in this appeal. The second segment admitted into evidence begins 

with Koburi yelling, “Felicia, stop!” Koburi then stated, “She is running into cars. Oh my 

god. She just ran into somebody’s car in the parking lot.” The remainder of this two and 

one-half minute segment included Koburi describing Defendant exiting the parking lot 

and driving onto Lomas Boulevard. The operator asked if Defendant was going the 

wrong way. Koburi said that Defendant had started out driving into oncoming traffic, but 

then reported that she saw the car return to the correct lane. Koburi told the operator 

the direction Defendant was driving in response to a question. After Koburi told the 

operator that she could not see the car any longer, she was asked if she knew 

Defendant’s home address and if she remembered her license plate information. The 

segment ended there.

{4} Shortly after 7:00 p.m., ten minutes after the Koburi made the 911 call, 

Albuquerque Police Department (APD) officers located Defendant sleeping in a parked 

car about three blocks away from the store parking lot where Koburi had made the 911 

call. Defendant’s car was a Black Ford Fusion, the car make and model identified by 

Koburi. 

{5} Koburi did not testify at trial. She was excluded by the metropolitan court as a 

witness because the State was unable to secure her participation in required interviews. 

The State offered a recording of the 911 call into evidence. Defense counsel argued for 

suppression of that recording in light of Koburi’s exclusion as a witness, arguing that its 

admission violated the Confrontation Clause and was hearsay that did not satisfy any 

exception to the hearsay rule. After reviewing the recording and the parties’ arguments, 

the metropolitan court admitted the first minute and one-half of the recording and the 

second two-and-one-half minute segment. The metropolitan court concluded that there 
was no Confrontation Clause violation, that the first minute and one-half was admissible 

under the hearsay exception for present sense impressions, Rule 11-803(1) NMRA, and 

the second two-and-one-half-minute segment was admissible under the exception for 

excited utterances, Rule 11-803(2). 

{6} The two law enforcement officers who located Defendant administered field 

sobriety tests and a breath alcohol test. One of the officers, Officer Garcia, had recently 

completed training in administering field sobriety and breathalyzer tests and was 

awaiting a physical copy of his certification card. Officer Garcia performed the tests, 

while being observed and supervised by the other more experienced certified officer, 

Officer Dunagan. Officer Dunagan used his certification card, but watched while Officer 

Garcia conducted the tests. Only Officer Dunagan testified at trial. 

{7} Defense counsel objected to the admission of the breath alcohol test results 

claiming that Officer Dunagan’s testimony did not sufficiently confirm that all of the 

foundational requirements in the state health department regulations had been met. 

Finding compliance with the foundational testing requirements, the metropolitan court 

admitted the test results. 

{8} Defendant appeals her conviction, challenging the metropolitan court’s admission 

into evidence of both segments of the 911 call and of the breath alcohol test results.

DISCUSSION

{9} We first address the Confrontation Clause questions raised by Defendant 

concerning the admission into evidence of the two 911 call segments. Concluding that 

the statements at issue were nontestimonial, and therefore, their admission does not 

violate the Confrontation Clause, we turn to Defendant’s alternative hearsay argument. 

Defendant claims that both segments of the 911 call admitted into evidence were 

hearsay, and were not admissible under either the present sense impression or excited 

utterance exception relied on by the metropolitan court. Finally, we address Defendant’s 

argument that the metropolitan court erred in admitting her breath alcohol test results. 

I. There Was No Violation of the Confrontation Clause Because the 

Statements Admitted Into Evidence Were Nontestimonial

{10} This Court reviews claimed violations of the Confrontation Clause de novo. State 

v. Gurule, 2013-NMSC-025, ¶ 33, 303 P.3d 838. One of the essential principles of

confrontation jurisprudence is that an out-of-court statement may not be admitted into 

evidence if it is testimonial and offered to prove the truth of the matter asserted “unless 

the declarant is unavailable and the defendant has a prior opportunity to cross-examine 

the declarant.” State v. Navarette, 2013-NMSC-003, ¶ 7, 294 P.3d 435. 

{11} The United States Supreme Court in Davis v. Washington, 547 U.S. 813, 822 

(2006), in the context of a 911 call, grappled with the distinction between testimonial 

and nontestimonial statements, concluding that statements are nontestimonial 
when made in the course of police interrogation under circumstances 

objectively indicating that the primary purpose of the interrogation is to 

enable police assistance to meet an ongoing emergency.

{12} The Court observed that a statement is likely nontestimonial if (1) the individual is 

describing events as they are actually happening rather than describing past events; (2) 

the individual is facing an ongoing emergency; (3) when viewed objectively, the elicited 

statements are necessary to resolve a present emergency rather than simply to learn 

what had happened in the past; and (4) the individual’s statements were provided over 

the phone in an environment that was neither tranquil nor safe. Id. at 827. This Court 

has adopted the Davis factors as helpful guidance in analyzing whether statements 

made during a 911 call are testimonial or nontestimonial. See State v. Soliz, 2009-

NMCA-079, ¶ 13, 146 N.M. 616, 213 P.3d 520.

{13} Looking to the statements from the segments of Koburi’s 911 call admitted into 

evidence and applying this guidance, we conclude that these statements were made 

primarily for the purpose of addressing a present emergency and were, therefore, 

nontestimonial. Defendant argues that in the first segment of the 911 call admitted by 

the metropolitan court, Koburi was relaying past events to the 911 operator, not seeking 

help with an ongoing emergency. We do not agree. When a declarant describes “events 

that had just occurred,” and those events are necessary to explain the present 

emergency, the statements serve the primary purpose of the 911 call—to obtain 

assistance to meet an ongoing emergency. Soliz, 2009-NMCA-079, ¶¶ 19, 20. The 

recording of the 911 call shows that Koburi spent approximately thirty seconds 

describing what had happened to create the current emergency. The facts conveyed—

that Defendant had been drinking, that she had been unconscious in a hot car for over 

an hour, and had just regained consciousness—are all essential background to enable 

the 911 operator to evaluate what assistance was needed. Koburi quickly turned to the 

current circumstances—that Defendant was belligerent, would not leave her car, that 

she had the car keys and the car was running—the emergency that was the basis of her 

call. These statements describe events that are occurring at the time of the call, and 

that constitute an ongoing emergency. The questions from the 911 operator elicited 

information essential to assess both the seriousness of that emergency and what 

response was needed. See State v. Largo, 2012-NMSC-015, ¶ 19, 278 P.3d 532 

(holding questions “targeted to assess the seriousness of the ongoing emergency” and 

the statements in response are nontestimonial). 

{14} Defendant argues that there was no ongoing emergency because Koburi 

“expressed doubt that an ambulance was necessary.” Whether there is an emergency, 

however, is based on an objective inquiry. See State v. Tsosie, 2022-NMSC-017, ¶ 36, 

516 P.3d 1116. Defendant’s belligerent intoxication and threat to begin driving in that 

intoxicated state objectively posed an imminent danger not only to Defendant but to 

other drivers on the road and possibly pedestrians. The situation as a whole also fits the 

last element of the Davis guidelines—Koburi’s statements “were provided over the 

phone in an environment that was not tranquil, or even . . . safe.” 547 U.S. at 827. 

Throughout the 911 call, Defendant can be heard angrily yelling in the background. Fear 
about Defendant driving in her intoxicated state in the parking lot and hitting individuals 

or cars is palpable throughout. The call thus is similar to the 911 calls found to be 

nontestimonial by the United States Supreme Court and our appellate courts.

{15} Finally, Defendant argues that any information elicited by the 911 operator after 

Koburi described Defendant driving out of the parking lot was provided to assist in a 

criminal investigation and therefore was testimonial. Our Supreme Court has recognized 

in a situation where the defendant had fled the scene that, “an ongoing emergency does 

not necessarily cease, rendering the information collected by an interrogator testimonial, 

as soon as the suspect leaves.” State v. Sisneros, 2013-NMSC-049, ¶ 11, 314 P.3d 

665. Here, as in Sisneros, Defendant left behind a car that she had hit in the parking lot 

and, by leaving the lot, placed in danger motorists on the road. There was no assurance 

Defendant would not return to the parking lot. The questions asked as Defendant was 

driving away were directed at tracking Defendant’s path so that she could be stopped 

and injury to others avoided. The 911 operator’s questions about a defendant’s identity, 

description, and location “do not suggest an inquiry into past criminal conduct or an 

effort to prepare a criminal case for investigation or prosecution.” Id. ¶ 14. All of these 

questions are necessary to meet an ongoing emergency. Id. 

{16} We conclude that all of the statements admitted into evidence by the 

metropolitan court from the segments of the 911 call were directed as addressing an 

ongoing emergency under the guidelines adopted by our courts. They were, therefore, 

nontestimonial and their admission did not violate the Confrontation Clause. 

II. There Was No Error in the Admission of Koburi’s Statements During the 

911 Call as a Present Sense Impression or an Excited Utterance

{17} Defendant next argues that even if Koburi’s statements were nontestimonial, the 

metropolitan court erred in admitting the first one and one-half minutes of Koburi’s 911 

call under the present sense exception to the hearsay rule and the second two-and-onehalf minute segment under the excited utterance exception to the hearsay rule. 

{18} “We review a [trial] court’s admission of evidence for an abuse of discretion.” 

State v. Imperial, 2017-NMCA-040, ¶ 14, 392 P.3d 658. “We will not conclude that the 

[trial] court abused its discretion in admitting evidence pursuant to an exception or an 

exclusion to the hearsay rule unless the ruling is clearly against the logic and effect of 

the facts and circumstances of the case.” Largo, 2012-NMSC-015, ¶ 22 (internal 

quotation marks and citation omitted). 

A. The Present Sense Impression Exception

{19} Defendant argues that Koburi’s statements in the first minute and one-half of the 

911 call were “largely relaying past events” and, therefore, were not properly admitted 

as present sense impressions. We disagree and explain.
{20} Rule 11-803(1) defines a present sense impression as, “[a] statement describing 

or explaining an event or condition, made while or immediately after the declarant 

perceived it.” With the exception of the first thirty seconds of the 911 call, Koburi is 

directly reporting on what is currently happening with Defendant—that she is conscious, 

is belligerent, is refusing to leave her car, and has started the car. We see no basis for 

challenging the admission of these statements as Koburi’s present sense impressions: 

these events were occurring contemporaneously with Koburi’s reporting of them. 

{21} We understand Defendant to challenge only the first thirty seconds of the call, 

where Koburi reported to the 911 operator that Defendant had been drinking and had 

been unconscious in her car during the preceding hour. Even assuming, without 

deciding, that these events were not close enough in time to be admitted as present 

sense impressions, Defendant has not pointed to any prejudice from the admission of 

this background information. We see no reasonable probability that the admission of 

brief background summary contributed to Defendant’s conviction and, therefore, 

conclude that any error was harmless. See State v. Tollardo, 2012-NMSC-008, ¶ 36, 

275 P.3d 110 (holding that a nonconstitutional error in the admission of evidence is not 

reversible unless there is a reasonable probability that the error contributed to the 

defendant’s conviction).

B. The Excited Utterance Exception

{22} Defendant next argues that the second segment of the 911 call admitted by the 

metropolitan court was not properly admitted as an excited utterance under Rule 11-

803(2). An “excited utterance” is “[a] statement relating to a startling event or condition, 

made while the declarant was under the stress or excitement that it caused.” Rule 11-

803(2). “[T]o constitute an excited utterance, the declaration should be spontaneous, 

made before there is time for fabrication, and made under the stress of the moment.”

State v. Flores, 2010-NMSC-002, ¶ 47, 147 N.M. 542, 226 P.3d 641 (internal quotation 

marks and citation omitted). 

{23} Defendant’s claim that Koburi’s description of Defendant hitting another car as 

she left the parking lot and drove against traffic are not excited utterances is based on 

Defendant’s assessment of Koburi’s emotional state as these events were happening. 

Defendant argues that Koburi sounds too calm and concludes she was not suffering 

from “sufficient pain, confusion, nervousness, or emotional strife” to support the court’s 

finding that this segment of the 911 recording was an excited utterance. We do not 

agree. First, we defer to the metropolitan court’s assessment of the witness’s mental 

state. See State v. Balderama, 2004-NMSC-008, ¶ 51, 135 N.M. 329, 88 P.3d 845 

(“The trial court has wide discretion in determining whether the utterance was 

spontaneous and made under the influence of an exciting or startling event.” (alteration, 

internal quotation marks, and citation omitted)). This segment of the 911 recording 

begins with Koburi spontaneously yelling, “Felicia, stop!” as Defendant was driving 

away. Koburi’s description of what is happening is interspersed with spontaneous 

expletives (“Oh my god”; “This is crazy”; “I can’t believe her”) and repeated nervous 

laughter. The events being described are objectively startling. We see no abuse of 
discretion in the metropolitan court’s decision to admit this evidence under the excited 

utterance exception to the hearsay rule. 

{24} Defendant also argues that even if the description of Defendant hitting cars and 

driving into traffic was properly admitted as an excited utterance, Koburi’s answers 

about Defendant’s address and license plate number were not excited utterances. Even 

assuming without deciding that they were not, the admission of these statements was 

harmless error and does not require reversal. We see no reasonable probability that the 

admission of these few facts from the 911 call contributed to Defendant’s conviction. 

See Tollardo, 2012-NMSC-008, ¶ 36. Although the license number was mentioned as a 

factor in confirming Defendant’s identity, Defendant’s identity was not an issue at trial: it 

was confirmed by other admissible evidence. The admission of Koburi’s memory of the 

license plate number was, therefore, harmless error.

III. The Testimony Established an Adequate Foundation for the Admission of 

the Breath Alcohol Test Results

{25} Defendant finally argues that the court abused its discretion in admitting her 

breath alcohol test results because the testimony of Officer Dunagan, the supervising 

officer, failed to establish two foundational requirements included in the state health 

department regulations, NMAC 7.33.2.15(B)(2): (1) that the officer who conducted the 

tests was a certified operator, and (2) that there was compliance with the full deprivation 

period. We disagree and explain. 

{26} Prior to the admission of breath alcohol test results, a court must find by a 

preponderance of the evidence that there was compliance with all accuracy ensuring 

state health department regulations. See State v. Willie, 2009-NMSC-037, ¶ 12, 146 

N.M. 481, 212 P.3d 369. In making this determination, the trial court can rely on hearsay 

evidence. See State v. Martinez, 2007-NMSC-025, ¶ 23, 141 N.M. 713, 160 P.3d 894. 

We review a trial court’s decision on whether to admit this evidence for abuse of 

discretion. See id. ¶ 7.

{27} NMAC 7.33.2.15(B)(2) requires breath samples to be “collected and analyzed by 

certified operators . . . after the certified operator . . . has ascertained that the subject 

has not had anything to eat, drink or smoke for at least twenty minutes prior to collection 

of the first breath sample.” Officer Dunagan testified that Officer Garcia, who did not 

testify, was certified but was awaiting a physical copy of his state-issued certification 

card. Because hearsay testimony is permissible, this testimony met the preponderance 

of the evidence standard required to establish that Officer Garcia was a certified 

operator.

{28} Defendant argues alternatively that as the certified operator whose card was 

used to operate the breathalyzer, Officer Dunagan, should have checked Defendant’s 

mouth and been certain of the start time and duration of the deprivation period. We 

disagree. NMAC 7.33.2.15(B)(2), the provision of state health department regulation 

relied on by Defendant does not require an operator “to either ask a person suspected 
of drunk driving whether he or she has anything in his or her mouth or to inspect a 

suspect’s mouth for food or other substances prior to initiating the required twentyminute deprivation period.” Willie, 2009-NMSC-037, ¶ 15. The fact that Defendant had 

been handcuffed for the duration of the deprivation period further supports a 

determination that Defendant had not placed anything in her mouth. Finding that a 

preponderance of the evidence supports that NMAC 7.33.2.15(B)(2) was properly 

complied with, we conclude that the trial court did not abuse its discretion in admitting 

Defendant’s breath alcohol test results.

CONCLUSION

{29} For the foregoing reasons, we affirm.

{30} IT IS SO ORDERED.

JANE B. YOHALEM, Judge

WE CONCUR:

KRISTINA BOGARDUS, Judge

JACQUELINE R. MEDINA, Judge