1

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-080

Filing Date: July 7, 2016

Docket No. 33,875

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

CHRIS HALL,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Stan Whitaker, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Charles J. Gutierrez, Assistant Attorney General

Albuquerque, NM 

for Appellee

Bennett J. Baur, Chief Public Defender

Santa Fe, NM

Vicki W. Zelle, Assistant Appellate Defender

Albuquerque, NM

for Appellant

OPINION

HANISEE, Judge.

{1} Defendant Chris Hall appealed his conviction in the metropolitan (metro) court for

driving while intoxicated (DWI), contrary to NMSA 1978, Section 66-8-102(C)(1) (2010),

to the district court. The district court affirmed the metro court’s sentencing order and filed

a memorandum opinion. Defendant now appeals to this Court. He challenges the

constitutionality of the sobriety checkpoint at which he was stopped, the admission into
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evidence of his breath test results, and the sufficiency of the evidence to support his

conviction. We conclude that while the checkpoint was constitutional, the metro court erred

in admitting Defendant’s breath results. Because the evidence was otherwise sufficient to

support Defendant’s conviction, we reverse and remand for a new trial.

BACKGROUND

{2} Shortly after 10:00 p.m. on January 20, 2012, Defendant was stopped at a DWI

checkpoint on Central Avenue in Albuquerque, New Mexico, just west of the Rio Grande

River. The checkpoint—in place between 10:00 p.m. and 3:00 a.m.—had been planned by

Sergeant Lecompte, DWI Unit Supervisor for the Bernalillo County Sheriff’s Office

(BCSO), and approved by his lieutenant. An approved tactical plan (tact plan) laid out the

parameters of the checkpoint, including the placement of signs, cones, reflective tape, and

emergency lighting at the checkpoint site. The tact plan also included guidelines for field

officers conducting stops at the checkpoint, specifying that initial contact with each driver

should be limited to 15-30 seconds, with the officer introducing himself, announcing the

purpose of the checkpoint, and asking the driver if he or she has consumed alcohol or drugs.

If additional investigation was required following the initial contact, the officer was to

remove the driver from the vehicle to conduct standardized field sobriety tests (FSTs) in a

separate investigation area. Sergeant Lecompte briefed each of the field officers on the tact

plan prior to initiating the checkpoint and remained on-site to supervise and to ensure that

the tact plan was being followed.

{3} The first officer to make contact with Defendant was BCSO Sergeant Perea, who

upon making contact detected an odor of alcohol coming from inside Defendant’s truck. In

accordance with the suggested checkpoint dialogue contained in the tact plan, and because

Defendant was the only person inside the truck, Sergeant Perea asked Defendant if he had

consumed any alcoholic beverages that evening. Defendant responded that he had a beer

about an hour prior. Sergeant Perea then conducted a seated horizontal gaze nystagmus

(HGN) test on Defendant. Based on the odor of alcohol, Defendant’s admission to drinking

beer an hour prior, and Defendant’s performance on the seated HGN test, Sergeant Perea

removed Defendant from his truck and proceeded to conduct a battery of three standardized

FSTs. Defendant’s performance on the FSTs resulted in his arrest for DWI.

{4} Defendant was then taken to the “BATmobile”—located at the checkpoint

site—where he consented to a breath test. Following a 20-minute deprivation period, as

measured by Sergeant Perea’s wristwatch, Defendant provided two breath samples using an

Intoxilyzer 8000. The breath test results revealed that Defendant had 0.10 grams of alcohol

per 210 liters of breath, which was above the “per se” legal limit. See § 66-8-102(C)(1)

(providing that it is illegal for a person to drive a vehicle with “an alcohol concentration of

eight one hundredths [0.08] or more in [his or her] blood or breath”).

{5} At a bench trial in the metro court, Defendant challenged the constitutionality of the

DWI checkpoint. He also objected to the admissibility of the breath test results. The metro
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court found that the checkpoint was constitutional and admitted the breath test results. The

metro court then found Defendant guilty of per se DWI, although it acquitted Defendant of

DWI based on impairment to the slightest degree, contrary to Section 66-8-102(B).

{6} On appeal, the district court affirmed Defendant’s conviction for per se DWI,

determining that the checkpoint was constitutional and that the breath results were properly

admitted into evidence. While we agree with the district court that the checkpoint was

constitutional, we disagree with respect to the breath test and conclude that the metro court

erred in admitting the breath results.

DISCUSSION

{7} “For on-record appeals the district court acts as a typical appellate court, with the

district court simply reviewing the record of the [metro] court trial for legal error.” State v.

Trujillo, 1999-NMCA-003, ¶ 4, 126 N.M. 603, 973 P.2d 855. “In subsequent appeals such

as this, we apply the same standards of review employed by the district court.” State v. Bell,

2015-NMCA-028, ¶ 2, 345 P.3d 342. “A trial court’s determination on a motion to suppress

evidence involves a mixed question of law and fact, as to which our review is de novo.” Id.

I. The DWI Checkpoint Was Constitutional

{8} Defendant contends that the DWI checkpoint at which he was stopped was not

constitutional under New Mexico law. This Court has held that a sobriety checkpoint is a

seizure. See State v. Bates, 1995-NMCA-080, ¶ 9, 120 N.M. 457, 902 P.2d 1060 (stating

“there is no question that a [checkpoint] is a seizure”). However, “a DWI [checkpoint], at

which drivers are stopped without probable cause or reasonable suspicion, is not a per se

violation of the Fourth Amendment to the United States Constitution; the constitutionality

of the [checkpoint] depends on whether it is reasonable.” Id. ¶ 6 (citing City of Las Cruces

v. Betancourt, 1987-NMCA-039, ¶ 9, 105 N.M. 655, 735 P.2d 1161). The ultimate question

for this Court is whether the facts and inferences before the lower courts support its

conclusion that the checkpoint was reasonable. Bates, 1995-NMCA-080, ¶ 21.

{9} A sobriety checkpoint “is constitutionally permissible so long as it is reasonable

within the meaning of the [F]ourth [A]mendment as measured by its substantial compliance

with [eight factors].” Betancourt, 1987-NMCA-039, ¶ 16. The eight Betancourt factors are:

(1) the role of supervisory personnel, (2) restrictions on the discretion of field officers, (3)

safety, (4) reasonable location, (5) time and duration, (6) indicia of official nature of the

checkpoint, (7) length and nature of detention, and (8) advance publicity. Id. ¶ 13. “[A]

sobriety checkpoint conducted in substantial compliance with the eight Betancourt factors

is [also] constitutional under the New Mexico Constitution.” State v. Madalena, 1995-

NMCA-122, ¶ 26, 121 N.M. 63, 908 P.2d 756.

{10} At trial, following the testimony of Sergeant Lecompte, which focused on the details

of the tact plan, approval of the tact plan by his supervisor, restrictions on the discretion of
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field officers, and BCSO’s efforts to ensure widespread advance publicity, the State moved

the metro court to find the checkpoint constitutional under Betancourt. Defendant objected,

arguing that three of the factors had not been met. Specifically, Defendant challenged the

safety of the checkpoint, the reasonableness of the checkpoint’s location, and whether there

was advance publicity. The metro court heard Defendant’s argument and the State’s response

and concluded that the checkpoint was constitutional. Later in the trial, Defendant renewed

his challenge to the constitutionality of the checkpoint, arguing that the discretion of the field

officers was not adequately constrained. The metro court again ruled that the checkpoint was

reasonable and constitutional. The district court affirmed. We address each challenged

Betancourt factor in turn.

A. Safety

{11} First, Defendant argues that the checkpoint was unsafe due to its location west of the

bridge over the Rio Grande River. According to Defendant, the first checkpoint-related

signage—a sign warning drivers to “reduce speed”—was located at the apex of the bridge,

and the entirety of the checkpoint was not visible to westbound drivers prior to reaching the

top of the bridge. Defendant testified at trial that another vehicle drove straight through the

checkpoint presumably in an attempt to avoid being stopped. Defendant also points out that

emergency maneuvers were limited by the nature of the bridge and by oncoming eastbound

traffic and asserts that several vehicles attempted to avoid the checkpoint by making U-turns

over the median on the bridge.

{12} The State responds by stressing that the “reduced speed” sign was followed by

additional signage, cones, and flashing lights from marked police vehicles, and that the

checkpoint site itself included signage, flashing lights, overhead lighting from the

BATmobile, and officers wearing reflective vests. The State also argues that there was “no

testimony that any officer or motorist was injured or involved in a vehicle collision” and that

“Defendant’s argument is premised on the actions of one motorist who attempted to evade

the checkpoint,” highlighting that such evasion is not necessarily indicative of the

checkpoint’s safety, but rather of the mind-set of the driver of the vehicle, as noted by the

district court in its memorandum opinion. See State v. Anaya, 2009-NMSC-043, ¶ 15, 147

N.M. 100, 217 P.3d 586 (“Evading a marked DWI checkpoint is a specific and articulable

fact that is sufficient to predicate reasonable suspicion for an investigatory stop.”).

{13} We note that there was testimony that the bridge over the Rio Grande River has a

slight, “roughly” one percent grade and that two photographs of the checkpoint location were

entered into evidence at trial. In light of the facts outlined above and the evidence presented

to the metro court, we conclude no error in the metro court’s determination that the safety

factor was substantially complied with. See Bates, 1995-NMCA-080, ¶ 25 (weighing

reasonableness in favor of the state where there were warning signs ahead of the checkpoint

and a separate, lighted area for secondary investigations).

B. Reasonable Location
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{14} Second, Defendant contends that the checkpoint’s location was not reasonable.

Sergeant Lecompte testified that he chose the location based upon DWI arrest statistics from

past checkpoints conducted there. Defendant asserts that the location’s “detection value” is

questionable given the fact that no arrests were made during the most recent checkpoint at

that location. We agree with the State, however, that the lack of arrests during the previous

checkpoint could tend to demonstrate the successful deterrent effect of placing sobriety

checkpoints at that particular location. Furthermore, while Betancourt made it clear that “a

location chosen with the actual intent of stopping and searching only a particular group of

people, i.e., Hispanics, [B]lacks, etc., would not be tolerated[,]” there was no evidence

produced at trial to indicate any such discriminatory purpose, and Defendant does not argue

that there was such a purpose. 1987-NMCA-039, ¶ 13. We conclude that Sergeant

Lecompte’s testimony was sufficient to establish that the checkpoint location was selected

on the basis of prior arrest statistics and on the successful deterrent effect of past checkpoints

at the same location, and therefore supported the trial court’s determination that the

checkpoint was reasonable. See id. ¶ 11 (“The need to deter, detect[,] and remove drunk

drivers from the public highways weighs heavily in favor of the state.”).

C. Advance Publicity

{15} Third, Defendant argues that the advance publicity factor was not met, based on the

fact that the officer who was responsible for faxing notice to the media did not testify at trial.

Although Sergeant Lecompte testified that the other officer faxed notice to several media

outlets on January 16, 2012, Defendant contended that Sergeant Lecompte did not have

personal knowledge regarding whether the media actually received notice and also that a

four-day notice was not sufficient. While Defendant maintains that no actual confirmation

receipt of the faxes were received from any media outlet, it appears from Sergeant

Lecompte’s testimony that fax confirmation sheets were included in the tact plan submitted

to his supervisor, reflecting that the faxes successfully went through to “several different

media outlets.” The metro court found that this factor was complied with by ruling that the

checkpoint was constitutional. The district court, however, expressed that “[t]he State’s

failure to provide proof that the media was actually notified causes the [c]ourt some

concern[.]” Nevertheless, given our conclusions in this opinion on the remaining Betancourt

factors, we need not resolve the differing perspectives of the metro and district courts

regarding whether BCSO’s attempt to generate advance publicity of this checkpoint satisfies

the final Betancourt factor. See State v. Swain, 2016-NMCA-024, ¶¶ 12-13, 366 P.3d 711

(“Based on our longstanding [caselaw], a lack of advance publicity, without more, is simply

not sufficient to find that a DWI checkpoint constitutes an illegal seizure.”); see also Bates,

1995-NMCA-080, ¶ 26 (“Whether or not there is advance publicity is not dispositive of the

reasonableness of a DWI [checkpoint].”).

D. Restrictions on the Discretion of Field Officers

{16} After the metro court found the checkpoint to be constitutional under Betancourt,

Sergeant Perea took the stand. During voir dire by defense counsel, Sergeant Perea stated
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that his contact with Defendant—prior to removing Defendant from his vehicle to perform

standardized FSTs—extended to somewhere between two and three minutes, included the

giving of a “seated” HGN test, and “possibly” or “could have” included additional

conversation. Defendant then renewed his objection to the constitutionality of the

checkpoint, arguing that Sergeant Perea’s testimony established that he was not limited in

his discretion, as required by the second Betancourt factor. The metro court found that

conducting the seated HGN test, as well as not doing the same with other motorists, “did

widen the scope and was beyond the discretion of the stopping officer at that point,” but the

court ultimately concluded that the totality of the circumstances weighed against suppression

of the evidence.

{17} For its part, the district court observed that a constitutionally reasonable checkpoint

serves as an adequate substitute for reasonable suspicion and “can justify the stop and initial

inquiry.” An officer would then be permitted to expand the scope of the stop if he had

reasonable and articulable suspicion of criminal activity. State v. Leyva, 2011-NMSC-009,

¶ 10, 149 N.M. 435, 250 P.3d 861. Importantly, this is the reasoning that undergirds the

operation of sobriety checkpoints such as the one in question. Specifically, the tact plan

guidelines here provided the officers with 15-30 seconds in which to observe the driver’s

condition and to ask about prior alcohol or drug consumption. The officer’s observations,

as well as the driver’s answers to the initial inquiry, could then provide the officer with

reasonable suspicion to support detaining the driver for additional investigation. See id. The

district court in this case concluded that Sergeant Perea had reasonable suspicion based on

his observation of Defendant and Defendant’s affirmative answer to having consumed

alcohol. See State v. Walters, 1997-NMCA-013, ¶ 26, 123 N.M. 88, 934 P.2d 282 (holding

that an officer acting in a community caretaker role had reasonable suspicion to investigate

further after the officer spoke to the defendant and detected the odor of alcohol).

{18} Notably, Defendant does not appear to challenge the determination that Sergeant

Perea had reasonable suspicion to expand the checkpoint stop into a full-blown DWI

investigation. Instead, he takes issue with the fact that Sergeant Perea had some additional

conversation with him and conducted the seated HGN test instead of immediately removing

him from his truck to undergo the full battery of FSTs. Thus, it appears that Defendant is

arguing that Sergeant Perea’s deviation from the tact plan guidelines—by not immediately

removing Defendant from his vehicle—rendered the checkpoint unconstitutional. The

district court agreed that the additional conversation and the abbreviated HGN test were not

part of the script, but relying on State v. Duarte, 2007-NMCA-012, 140 N.M. 930, 149 P.3d

1027, determined that these actions did not unreasonably expand the stop, nor were they

more invasive than removing Defendant from his vehicle to perform FSTs, which was the

next step in the tact plan. See id. ¶ 39 (declining to “fix a deviation from a script of questions

as a constitutional infirmity, without contemporaneous inquiry more broadly into the

invasiveness and intrusion of the contact”).

{19} Defendant contends that the metro court and the district court read Duarte too

broadly. Defendant attempts to distinguish Duarte by stressing the “very limited scope of
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permitted ‘initial contact’ ” in the present case and by stating that Sergeant Perea’s “breach

does not compare with the breach of procedure described in Duarte[] that was found ‘too

insubstantial to constitute constitutional harm.’ ” We observe, however, that in specifically

addressing the issue of the constitutional propriety of departures from a pre-approved script,

Duarte stated, “[w]hat makes this a viable issue is the unique substitution of a properly

implemented [checkpoint] for the requirement of individualized suspicion.” Id. ¶¶ 35, 38.

We are cautioned by Duarte that it is the “elimination of the requirement for individualized

suspicion” that creates the “serious concern about lack of uniformity and need for limitation

of discretion.” Id. But in Duarte, the deviation from the script occurred during the initial

questioning of the driver and before the officer had reasonable suspicion that the driver had

committed a crime. Id. ¶ 27. In the present case, Sergeant Perea had reasonable suspicion

that Defendant was driving while intoxicated before any purported deviation from the tact

plan. As such, the Duarte court’s “fear of unrestricted discretion in questioning, and the

invidious, intrusive invasion of privacy that can occur from such discretion” was not present

in this case. Id. ¶ 38. Consequently, we conclude that the presence of reasonable suspicion

following the initial contact justified further detention for additional investigation,

notwithstanding Sergeant Perea’s subsequent deviation from the tact plan guidelines. Cf.

State v. Villas, 2002-NMCA-104, ¶ 10, 132 N.M. 741, 55 P.3d 437 (recognizing that

“[u]nder the New Mexico Constitution, after the checkpoint stop, a police officer cannot

further detain a motorist without reasonable suspicion of criminal activity”); Brown v. Texas,

443 U.S. 47, 51 (1979) (stating that “the Fourth Amendment requires that a seizure must be

based on specific, objective facts indicating that society’s legitimate interests require the

seizure of the particular individual, or that the seizure must be carried out pursuant to a plan

embodying explicit, neutral limitations on the conduct of individual officers” (emphasis

added)).

E. Other Betancourt Factors

{20} Finally, to the extent that Defendant is challenging the supervisory personnel factor

and the length and nature of detention factor on appeal, we observe that these factors were

not challenged in the metro court. Consequently, we conclude that Defendant’s arguments

on these factors were not preserved for appeal. See State v. Varela, 1999-NMSC-045, ¶ 25,

128 N.M. 454, 993 P.2d 1280 (stating that “[i]n order to preserve an error for appeal, it is

essential that the ground or grounds of the objection or motion be made with sufficient

specificity to alert the mind of the trial court to the claimed error or errors, and that a ruling

thereon then be invoked” (internal quotation marks and citation omitted)).

{21} Therefore, because sufficient evidence was produced at trial to establish that the DWI

checkpoint in this case substantially complied with all of the Betancourt factors, perhaps

with the exception of advance publicity, we conclude that the metro court did not err in

finding the checkpoint to be constitutional.

II. The Metro Court Abused Its Discretion by Admitting the Breath Card Into

Evidence
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{22} Defendant argues that his breath test results should not have been admitted for two

reasons: (1) he presented evidence tending to show that the annual proficiency tests on the

Intoxilyzer 8000 had not been conducted, and (2) the required twenty-minute deprivation

period was not conducted prior to his breath test.

A. Proficiency Testing

{23} We observed in State v. Hobbs, 2016-NMCA-022, ¶ 1, 366 P.3d 304, cert. denied,

2016-NMCERT-002, ___ P.3d ___ that the Scientific Laboratory Division of the Department

of Health (SLD) has administrative authority over blood and breath tests administered to

persons suspected of driving under the influence of intoxicants. See NMSA 1978, § 24-1-22

(2003). Under its authority, the SLD has promulgated regulations under the New Mexico

Administrative Code governing “the certification of laboratories, breath alcohol instruments,

operators, key operators, and operator instructors of the breath alcohol instruments as well

as establish[ing] the methods of taking and analyzing samples of blood and breath testing

for alcohol or other chemical substances under the New Mexico Implied Consent Act,

[NMSA 1978, § 66-8-107(B) (1993)].” 7.33.2.2 NMAC.

{24} At issue in this case is the certification of the Intoxilyzer 8000 used to measure

Defendant’s breath alcohol level. See 7.33.2.10(A) NMAC (“Any breath alcohol instrument

to be used for implied consent evidential testing must be approved and certified by SLD.”);

see also State v. Onsurez, 2002-NMCA-082, ¶ 13, 132 N.M. 485, 51 P.3d 528 (“[T]he [s]tate

must show that the machine used for administering a breath test has been certified by

SLD.”).

{25} In State v. Martinez, 2007-NMSC-025, ¶¶ 9, 11-12, 23, 141 N.M. 713, 160 P.3d 894,

our Supreme Court held that a “threshold showing” that the instrument used to administer

a breath alcohol test (BAT) was SLD-certified at the time of the test is a Rule 11-104(A)

NMRA foundational requirement for admission of the BAT results into evidence. Martinez

went on to state that this foundational requirement can be satisfied by the hearsay testimony

of the officer who administered the BAT that he saw a “sticker” on the breathalyzer

instrument indicating that it was SLD-certified at the time of the defendant’s BAT. 2007-

NMSC-025, ¶ 23. In the present case, Sergeant Perea testified in the metro court that the

Intoxilyzer 8000 used to measure Defendant’s breath alcohol level was certified by SLD. He

testified that he observed the Martinez sticker reflecting that the date of Defendant’s test was

within the date range of the machine’s certification.

{26} However, Martinez also held that “a defendant may be able to critically challenge an

officer’s foundational testimony concerning certification” based on information obtained

during discovery. Id. ¶ 24. In this case, Defendant presented documentation obtained from

SLD via subpoena indicating that SLD had no information available regarding proficiency

tests conducted on the Intoxilyzer 8000 used to test Defendant’s breath for the current

certification year (2011-2012). Defendant also subpoenaed the proficiency testing

documentation for the preceding period (2010-2011), but SLD’s response did not mention
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or include such documentation. Defendant informed the court at trial that SLD “never

responded to [the] 2010-2011 request.” Therefore, we must presume none existed. Defendant

used this information to challenge the officer’s threshold showing that the BAT machine was

certified under the SLD regulations and to argue for the inadmissibility of the breath results.

{27} The State argued in the metro court that the section of the SLD regulations dealing

with proficiency testing does not set out a mandatory requirement. Instead, relying on the

presence of the word “should” in the applicable section of the regulation, the State argued

that failure to analyze proficiency samples does not affect the certification of the breath

alcohol instrument. See 7.33.2.10(B)(1)(b) NMAC (“Four proficiency samples should be

analyzed yearly on each such certified instrument.”). The metro court agreed with the State’s

position. The district court affirmed, noting in a footnote that the previous version of the

regulation, 7.33.2.11(G)(2) NMAC (2001), specifically stated that “[c]ertification of the

breath alcohol testing instruments shall be dependent upon the following . . . Satisfactory

performance on the requisite proficiency testing. Six (6) proficiency samples should be

analyzed yearly on each such certified instrument.” Although the proficiency test language

is couched under “[c]ontinuing responsibilities” within the current version of the regulation,

the district court concluded that removal of the previous mandatory language, “shall be

dependent upon the following,” made the proficiency tests no longer mandatory. Compare

7.33.2.10(B) NMAC, with 7.33.2.11 NMAC (2001).

{28} In Martinez, the Court held that the SLD regulations governing certification of a

BAT machine are accuracy-ensuring. 2007-NMSC-025, ¶ 11. After listing a number of

requirements for certification under the 2001 version of the regulations, including two yearly

calibration tests, an annual inspection by SLD, monthly submission of records pertaining to

all tests conducted on the machine, satisfactory performance of six yearly proficiency

samples, and a calibration check at least every seven days and/or a 0.08 calibration check

conducted on each subject, the Court held that before a BAT card is admitted into evidence,

the State must make a threshold showing that the machine has been certified. Id. ¶¶ 11-12.

{29} In Hobbs, this Court—interpreting the current version of the regulation—noted that

the “certification requirements for instruments are extensive.” 2016-NMCA-022, ¶ 16. We

observed that an instrument must obtain initial certification, that must then be renewed

annually based on compliance with the 7.33.2.10. NMAC. Hobbs, 2016-NMCA-022, ¶ 16.

We further noted that the regulation “contains numerous continuing requirements for

individual instruments, including . . . annual analysis of four proficiency samples[.]” Id.

Among the other requirements listed in the “[c]ontinuing responsibilities” section of the

current version of the regulation are: submission of logbooks and records at scheduled times;

calibration checks at least once every seven days or with each subject test or both; and

biannual inspections of the machine at SLD. Id.; see also 7.33.2.10(B)(1). In other words,

our jurisprudence permitting the admissibility of breath test results does so based upon

ongoing accuracy-ensuring processes that guard against inconsistent, varying, and erroneous

results. Despite its use within 7.33.2.10(B)(1)(b), the word “should” does not precede the

process for admissibility of breath test results and the requirement that they are produced by
10

a properly certified device established in applicable caselaw. In light of our regulatory

interpretation in Hobbs and the principle set forth in Martinez, we conclude that satisfactory

performance on four annual proficiency tests is titled “[c]ontinuing responsibilities” for a

reason and remains a mandatory accuracy-ensuring requirement for certification under the

current version of the regulation.

{30} Because the metro court—based on its erroneous understanding that the proficiency

tests are not mandatory under the SLD regulations—failed to consider whether Defendant

sufficiently challenged the admissibility of the breath test results, it abused its discretion in

admitting the results. See State v. Favela, 2013-NMCA-102, ¶ 16, 311 P.3d 1213 (“An abuse

of discretion may . . . occur when the district court exercises its discretion based on a

misunderstanding of the law.” (internal quotation marks and citation omitted)). However,

we do not determine as a matter of law that Defendant’s challenge to the admissibility of the

breath test results—through a document indicating that SLD does not have available records

of the required proficiency tests for this particular machine—serves to defeat the State’s

threshold showing. Rather, we reverse and remand to the metro court in order for it to reach

a determination that incorporates consideration of both the evidence produced by Defendant

and Sergeant Perea’s testimony that he observed a sticker indicating that the machine was

certified by SLD on the date in question. See State v. Willie, 2009-NMSC-037, ¶ 12, 146

N.M. 481, 212 P.3d 369 (holding that whether a regulation relating to breath tests has been

satisfied is a factual determination to be made by the trial court, that must be satisfied by a

preponderance of the evidence).

B. Deprivation Period

{31} 7.33.2.15(B)(2) NMAC provides that “[b]reath [samples] shall be collected only after

the certified operator or certified key operator has ascertained that the subject has not had

anything to eat, drink[,] or smoke for at least twenty minutes prior to the collection of the

first breath sample.” In Willie, our Supreme Court held that the evidence was sufficient to

satisfy the deprivation requirement when the defendants were restrained for nearly an hour

after arrest “in such a way that it would be unlikely that they could have eaten, drunk, or

smoked anything” even though they were not observed continuously. Willie, 2009-NMSC037, ¶ 16.

{32} In this case, Sergeant Perea handcuffed Defendant and placed him in the BATmobile.

Although Sergeant Perea left the room for a few moments to retrieve a laptop computer, he

left Defendant with another officer. We agree, therefore, with the metro court and the district

court that there was sufficient testimony to prove by a preponderance of the evidence that

Defendant did not eat, drink, or smoke anything during that time frame and that the 20-

minute deprivation period was satisfied.

III. Defendant’s Conviction Was Supported by Sufficient Evidence

{33} Defendant argues that the breath test results—indicating that his breath alcohol level
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was 0.10/0.10, above the per se limit of 0.08—were not reliable, and consequently, the

evidence presented at trial was insufficient to support his conviction. Specifically, Defendant

contends that the lack of proficiency testing and the “suspect” compliance with the

deprivation period combine to result in inadequately reliable BAT. In support, Defendant

points to State v. King, 2012-NMCA-119, ¶ 16, 291 P.3d 160, where this Court recognized

that “[t]he [I]ntoxilyzer reading, even though the machine has been approved by the SLD,

and operated and maintained in accordance with the SLD regulations, is not conclusive

evidence of the offense. Nor is it conclusive evidence of the reliability of the test results.”

We acknowledge that a defendant may challenge the reliability of a BAT machine’s reading,

and we note that Defendant has conducted such a challenge in this case, pointing to issues

with verifying whether proficiency tests had been conducted and whether the twenty-minute

deprivation period was complied with.

{34} On appeal, the appellate court views the evidence in the light most favorable to the

verdict, resolving all conflicts and indulging all reasonable inferences in favor of the verdict.

State v. Apodaca, 1994-NMSC-121, ¶ 3, 118 N.M. 762, 887 P.2d 756. As stated earlier in

this opinion, we have determined that the metro court did not err in concluding that the

deprivation period was met. We have further observed that evidence was presented that there

was documentation on this particular Intoxilyzer 8000 indicating that it was certified by SLD

on the date of the tests in question. As such, we conclude that there was sufficient evidence

to support Defendant’s conviction for per se DWI, notwithstanding Defendant’s attack on

the reliability of the machine. See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986

P.2d 482 (recognizing that it is for the fact-finder (in this case, the judge) to resolve any

conflict in the testimony of the witnesses and to determine where the weight and credibility

lie).

CONCLUSION

{35} For the foregoing reasons, we conclude that the DWI checkpoint at which Defendant

was stopped was constitutional. We further conclude that the 20-minute deprivation period

was met and that the BAT results—0.10/0.10—constituted sufficient evidence to support

Defendant’s conviction for per se DWI. However, because the metro court admitted the

breath results based on its erroneous determination that the annual proficiency tests were not

required by SLD regulation, we reverse and remand to the metro court for a new trial.

{36} IT IS SO ORDERED.

____________________________________

J. MILES HANISEE, Judge

WE CONCUR:

____________________________________

MICHAEL E. VIGIL, Chief Judge
12

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JONATHAN B. SUTIN, Judge