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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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-Appellee, 8

v. NO. 29,187 9 GUADALUPE RODRIGUEZ, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Denise Barela Shepherd, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 M. Victoria Wilson, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Jacqueline L. Cooper, Acti ng Chief Public Defender 19 Santa Fe, NM 20 Josephine H. Ford, Assist ant Appellate Defender 21 Albuquerque, NM 22 for Appellant 23

MEMORANDUM OPINION 242 CASTILLO, Chief Judge. 1 Defendant was charged with driving while under the influence of intoxicating 2 liquor (DWI), reckless driving, and failure to yield to emergency vehicles. She was 3 convicted of all the charges following a bench trial in metropolitan court (metro 4 court). Defendant now appeal s, raising issues related tothe metro court’s decision to 5 admit the Scientific Laboratory Division (SLD) 705 form and the sufficiency of the 6 evidence. We affirm. 7 BACKGROUND 8 The events which led to the charges against Defendant are undisputed. On 9 August 4, 2006, Bernalillo County Sheriff’s Deputy Greg Martinez was patrolling in 10 a marked vehicle when he observed Defe ndant driving in excess of the speed limit. 11 Defendant was traveling in the opposite direction of Deputy Martinez, so he waited 12 for her to pass, turned his vehicle around, and began pursuit. 13 While attempting to catch up to De fendant, Deputy Martinez observed her 14 travel through a stop sign without stopping or slowing down. When he finally caught 15 up, Deputy Martinez activated his emergenc y equipment and, using his loud speaker, 16 verbally directed Defendant to stop. Defendant did not stop, however, and Deputy 17 Martinez concluded that a high speed pursuit posed too great a risk to the public. He 18 deactivated his emergency e quipment and backed away. 193 Deputy Martinez then observed Defendant tr avel at a high rate of speed through 1 a construction zone in the oppos ing lane of traffic. At one point, Defendant swerved 2 and grazed a jersey barrier with her tire. At this juncture, Deputy Martinez reactivated 3 his emergency equipment and again attempte d to compel Defendant to stop, but was 4 again unsuccessful. 5 Defendant continued to speed while trave ling in the opposing lane of traffic and 6 drove through an intersection at high speed. Several other deputie s had been alerted 7 to the unfolding events and considered employing a spike belt. This became 8 unnecessary, however, as Defendant eventually crashed into a newly installed, twelve9 inch-tall curb and became airborne. This caused Deputy Martinez to crash into the 10 rear of Defendant’s vehicle. The wreck immobilized and significantly damaged 11 Defendant’s car and caused Deputy Martinez to suffer a shoulder injury. 12 Several deputies approachedDefendant as she sat in her now inoperable car. 13 Initially, she appeared to be unconscious but soon woke up. There were two empty 14 beer cans on the passenger side of her car, and her vehicle smelled of alcohol. Deputy 15 Ted Asbury took charge of the DWI investigation. He first spoke to Deputy Martinez 16 and then made contact with Defendant. 17 Defendant informed Deputy Asbury that she had been driving home and had 18 no recollection of the accident or how it occurred. Deputy Asbury smelled the odor 194 of alcohol emanating from Defendant’s breath and observed th at Defendant’s eyes 1 were blood shot and her speech was slurred. Deputy Asbury asked Defendant if she 2 had consumed any alcohol, and she admitted that she had been drinking but could not 3 recall how much. Defendant re fused to perform the standard field sobriety tests and 4 was taken to the University of New Mexi co Hospital where she agreed to undergo a 5 blood draw. 6 The results of that blood draw were recorded on a SLD 705 form, and that form 7 was admitted at Defendant’s trial over her objection. The form indicates that the 8 blood alcohol content (BAC) of the blood drawn from Defendant was .07 gms/100ml. 9 The analyst who tested Defendant’s blood and transcribed the test results onto the 705 10 form did not testify. Rather, the St ate called Dr. Rong-Je n Hwang. Dr. Hwang 11 testified that Defendant’s BAC was .07 gms/100ml, as wa s indicated on the 705 form, 12 and stated his opinion that Defendant’s blood sample was analyzed correctly. 13 The metro court pointed to the following evidence in support of the DWI 14 conviction on grounds of impairment to the slightest degree: the results of Defendant’s 15 blood test confirmed that she had consumed alcohol, Defendant admitted consuming 16 alcohol, and Defendant drove “like a crazy person, putting everybody’s life in 17 danger.” Defendant’s refusal to perform the field sobriety tests was not used against 18 her. The metro court concluded that there was no question Defendant drove recklessly 195 and failed to yield to emergency vehicles. 1 Defendant appealed the metro court’s deci sion to district court. The district 2 court affirmed the convictions. Defendant now appeals to us. 3 DISCUSSION 4 On appeal, Defendant makes three arguments. Citing the Confrontation Clause 5 and recent New Mexico case law, she cl aims that the metro court committed 6 fundamental error in admitting the 705 form because the analyst who actually tested 7 her blood did not testify at trial. Altern atively, she claims that the 705 form was 8 inadmissible because the State failed to lay an adequate foundation. Finally, she 9 claims that there was insufficient evid ence that she drove under the influence of 10 alcohol. She asks us to reverse her convi ctions and either remand for a new trial or 11 dismiss the charges with prejudice. We begi n with the Confrontation Clause issue and 12 address the remaining issues in the order listed. 13 Citing State v. Aragon , 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280 and 14 State v. Bullcoming , 2010-NMSC-007, ¶ 16, 147 N.M. 487, 226 P.3d 1, cert. granted , 15 Bullcoming v. New Mexico , 131 S. Ct. 62 (2010) (mem.), Defendant claims that she 16 was entitled to confront and cross-examine the analyst who actually tested her blood 17 and transcribed the test results onto the 705 form. Having been denied that 18 opportunity, she contends that the report was wrongly admitted. “Confrontation 196 Clause claims are issues of law that we review de novo.” State v. Martinez , 1 1996-NMCA-109, ¶ 14, 122 N.M. 476, 927 P.2d 31. 2 Defendant acknowledges that this issue was not raised at trial and concedes that 3 the doctrine of fundamental error applies. Under that doc trine, we first determine if 4 error occurred and then evaluate whether the error was fundamental. State v. Silva , 5 2008-NMSC-051, ¶ 11, 144 N.M. 815, 192 P.3d 1192. In this case, we need not 6 resolve whether admission of the 705 form was error; even if the form were admitted 7 in error, we are confident that the error was not fundamental. 8 “A fundamental error occurs where there has been a miscarriage of justice, the 9 conviction shocks the conscience, or substan tial justice has been denied [or when the 10 district] court’s error was of such magnitude that it affected the trial outcome.” State 11 v. Dietrich , 2009-NMCA-031, ¶ 52, 145 N.M. 733, 204 P.3d 748 (internal quotation 12 marks and citation omitted). Thus, our Supreme Court has explained that “[t]he 13 doctrine of fundamental error is to be resorted to in criminal cases only for the 14 protection of those whose innocence appears indisputably, or open to such question 15 that it would shock the conscience to permit the conviction to stand.” State v. 16 Rodriguez , 81 N.M. 503, 505, 469 P.2d 148, 150 ( 1970). Defendant’s innocence is 17 far from indisputable. 18 Ignoring the 705 form and the BAC resu lts, there is ample other evidence 197 Defendant violated NMSA 1978, Sec tion 66-8-102(A) (2005) (amended 2010) by 1 driving under the influence of intoxicating liquors while impaired to the slightest 2 degree. The uncontroverted evidence at trial demonstrates that Defendant exceeded 3 the speed limit while traveling in an opposing lane of traffic, ignored stop signs and 4 sped through an intersection, grazed a jersey barrier, ignored Deputy Martinez’s 5 repeated commands to stop, crashed her car into a large curb causing her vehicle to 6 literally fly into the air, and caused a wreck which injured Deputy Martinez and 7 significantly damaged Defendant’s vehicle. After the wreck, officers observed open 8 beer cans in Defendant’s car and detectedthe odor of alcohol inside the vehicle. 9 While speaking to Deputy Asbury, Defendant admitted that she had consumed alcohol 10 before driving, and Deputy Asbury obs erved several signals confirming this 11 admission: Defendant’s breath smelled of alcohol, her eyes were bloodshot, and her 12 speech was slurred. This evidence, standi ng alone, was more than adequate to convict 13 Defendant of DWI under the impaired to the slightest degree standard. See State v. 14 Soto , 2007-NMCA-077, ¶¶ 32-34, 142 N.M. 32, 162 P.3d 187 (concluding that there 15 was sufficient evidence that the defendantcommitted DWI under the impaired to the 16 slightest degree standard—despite the fact that officers observed no irregular driving, 17 the defendant’s behavior was not irre gular, and no field sobriety tests were 18 conducted—in light of the fact that the defendant’s eyes were bloodshot, his speech 198 was slurred, his breath sme lled of alcohol, he admitted drinking, and the officers 1 observed several empty cans of beer where the defendant had b een). “The record 2 before us does not suggest the indisputableinnocence of [Defendant], or that [her] 3 conviction would shock the conscience.” Rodriguez , 81 N.M. at 505, 469 P.2d at 150. 4 Thus, even if the 705 form had been admitted in violation of Defendant’s 5 Confrontation Clause rights, that error wa s not fundamental. We proceed to the next 6 issue on appeal. 7 Defendant next argues that the distri ct court erred in admitting the 705 form 8 because the State failed to lay an adequate foundation. “We review the district court’s 9 admission or exclusion of evidence for abuse of discretion. The district court abuses 10 its discretion when it admits evidence for which the necessary foundation has not been 11 laid.” State v. Tom , 2010-NMCA-062, ¶ 11, 148 N.M . 348, 236 P.3d 660 (citations 12 omitted). 13 Defendant’s assertion that the State failed to lay an adequate foundation for 14 admission of the 705 form is premised on two independent arguments. First, she 15 argues that the State failed to submit any evidence demonstrating that the blood draw 16 was carried out in compliance with the SLD regulations codified at 7.33.2.14 NMAC 17 (4/30/2010). The State responds that Defendant did not make this argument at trial 18 and, therefore, failed to preserve this contention. Our review of the record confirms 199 the State’s position. As such, Defendant’s first argument will not be addressed. See 1 Rule 12-216(A) NMRA (“To preserve a ques tion for review it must appear that a 2 ruling or decision by the district court was fairly invoked[.]”); State v. Balenquah , 3 2009-NMCA-055, ¶ 18, 146 N.M. 267, 208 P.3d 912 (stating that “we do not consider 4 arguments not preserved below”). 5 Second, Defendant argues that the foundation was inadequate because there was 6 a gap in the chain of custody. Specifically, she claims that there was a five-day period 7 between the date her blood wa s drawn at the hospital and the date SLD received her 8 blood. She asserts that the State was requi red, but failed to present, any evidence 9 regarding what happened to the blood during th at period. This claim was made below 10 and shall be considered. 11 The evidence at trial indicated the following. Officer Asbury witnessed 12 Defendant’s blood being drawn at the hospital on August 4, 2006. He also witnessed 13 the technician who drew Defendant’s bl ood mark and seal the vials in which 14 Defendant’s blood was placed. Deputy Asbury then took command of those vials and 15 logged them in at the blood locker at a substation. SLD received those vials on 16 August 9, 2006, and, when they were received, the seals were still intact. The metro 17 court determined that this evidence suffici ently established the chain of custody and 18 rejected Defendant’s claim that the allege d gap was significant. We see no error in 1910 this ruling. 1 We have previously explained that 2 [i]n order to admit real or demons trative evidence, th e evidence must be 3 identified either visually or by establishing custody of the object from 4 the time of seizure to the time it is o ffered into evidence. The [s]tate is 5 not required to establish the chain of custody in sufficient detail to 6 exclude all possibility of tampering. Rather, there is no abuse of 7 discretion when the preponderance of the evidence demonstrates that the 8 questioned evidence is what it purports to be. 9 State v. Rubio , 2002-NMCA-007, ¶ 16, 131 N.M. 479, 39 P.3d 144 (internal quotation 10 marks and citation omitted). Here, the St ate did prove by a preponderance of the 11 evidence that the blood SLD tested was the blood drawn from Defendant. The blood 12 vials were sealed at the time the blood was drawn from Defendant, Deputy Asbury 13 took command of those vials and stored them in a secure location and, when the vials 14 were delivered to the SLD, the seals were intact. 15 Even if we reached the opposite conclu sion and determined that the foundation 16 laid as to the 705 form was inadequate, wewould nonetheless conc lude that admission 17 of the 705 form was harmless error. “Evide nce admitted in violation of our rules is 18 grounds for a new trial where the error was not harmless.” State v. Barr , 2009- 19 NMSC-024, ¶ 47, 146 N.M. 301, 210 P.3d 198. Defendant’s arguments implicate the 20 non-constitutional strand of the harmless error analysis. Id. ¶ 53 (stating that “where 21 a defendant has established a violati on of statutory law or court rules, 2211 non-constitutional [harmless] error review is appropriate”). “[N]on-constitutional 1 error is reversible only if th e reviewing court is able to say, in the context of the 2 specific evidence presented at trial, thatit is reasonably probable that the [fact 3 finder’s] verdict would have been different but for the error.” Id. ¶ 54. To determine 4 whether it is reasonably probable that th e metro court’s determination would have 5 been different but for the error, we considerwhether there is: “(1) substantial evidence 6 to support the conviction without reference to the improperly admitted evidence; (2) 7 such a disproportionate volume of permi ssible evidence that, in comparison, the 8 amount of improper evidence will appear mi nuscule; and (3) no substantial conflicting 9 evidence to discredit the State’s testimony.” Id. ¶ 56 (footnote omitted). “No one 10 factor is determinative; rath er, they are considered in conjunction with one another.” 11 Id. ¶ 55. We apply these factors. 12 Here, as previously described, there is substantial evidence apart from the 705 13 form and the BAC results to support Defendant’s conviction for DWI. We decline to 14 review that evidence again. As to the second factor, th e 705 form and the results of 15 Defendant’s blood test appear minuscule in comparison to that other evidence. 16 Finally, there was no conflicting evidence pres ented at Defendant’s trial to discredit 17 the State’s evidence. Defendant acknowledge s as much but points out that, at her 18 arraignment, Defendant explai ned that the events of August 4, 2006 were attributable 1912 to the fact that she was in a rush to get home to care for her ill mother. Defendant 1 claims that this evidence contradicts the metro judge’s determination that Defendant 2 was impaired. We see no reason why we should consider statements made at an 3 arraignment, see In re Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 4 (1984) (stating that absent cited authority to support an argument, we assume no such 5 authority exists), and further observe thatit defies reason and sense to suggest that 6 Defendant would drive in an outlandishlydangerous fashion, evade police, and 7 inadvertently launch her vehicle skyward si mply because she wished to hasten her 8 return home. 9 Defendant claims that admission of the 705 form was not harmless error and 10 relies heavily on State v. Marquez , 2009-NMSC-055, 147 N.M. 386, 223 P.3d 931 for 11 this claim. We are unpersuaded and determine that Marquezis distinguishable. 12 As in the present matter, the defendant in Marquezwas convicted of DWI under 13 the impaired to the slightest degree standard. Id. ¶¶ 1, 16. At the defendant’s trial, the 14 arresting officer testified that he conducted field sobriety te sts and further testified that 15 the defendant’s performance on those tests indicated a ninety percent likelihood that 16 his BAC was at or above the legal limit. Id. ¶ 18. Our Supreme Court determined that 17 this testimony was improperly admitted and then went on to assess whether admission 18 of the testimony was harmless error. Id. ¶¶ 18-26. 1913 The Court determined that factors two and three weighed against the conclusion 1 that the error had been harmless. Id. ¶¶ 23-25. As to the second factor, the Court 2 explained that the officer’s improper statement was not minuscule in comparison to 3 the other permissible evidence. Id. ¶ 23. This conclusion was premised on the fact 4 that the officer’s testimony essentially conve yed to the jury that it was scientifically 5 provable, based on the results of the field sobriety tests, that the defendant was legally 6 intoxicated. Id. Our Supreme Court determined th at the nature of the officer’s 7 testimony had great potential to mislead. Id. As to the third factor, the Court 8 observed that the defendant had proffered testimony that s quarely conflicted with the 9 State’s evidence. Id. ¶ 25. 10 The concerns that motivated our Supreme Court to conclude in Marquezthat 11 the evidentiary error in thatcase was not harmless are not present here. Unlike the 12 officer’s testimony in Marquez , the 705 form could not have misled the fact finder to 13 believe that it was nearly certain Defendant ’s BAC was at or above the legal limit. 14 Indeed, the 705 form indicated that Defendant’s BAC was below the per se limit. 15 Thus, the 705 form could not have impactedthe fact finder’s judgment in the manner 16 the officer’s testimony in Marquezdid. The 705 form and the BAC results are small 17 in comparison to the other ev idence presented. In additi on, Defendant failed to submit 18 evidence that conflicted or discredited the State’s evidence. For these reasons, the 1914 present matter is sufficiently distinguishable from Marquez . We proceed to the last 1 issue on appeal. 2 Defendant contends that there was in sufficient evidence presented that she 3 drove under the influence of alcohol. Specifi cally, Defendant contends that the metro 4 court “erred in ruling that there was a nexus between alcohol and impairment.” 5 When reviewing a verdict for suffi ciency of the evidence, our role 6 is to determine whether a rational fact[]finder could determine beyond 7 a reasonable doubt the essential fact s necessary to convict the accused. 8 When determining the sufficiency of the evidence, the court views the 9 evidence in a light most favorable to the verdict, considering that the 10 [s]tate has the burden of proof beyond a reasonable doubt. The court 11 should not re-weigh the evidence to determine if there was another 12 hypothesis that would support inno cence or replace the fact[]finder’s 13 view of the evidence with the appellate court’s ow n view of the 14 evidence. 15 State v. Garcia , 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72 (citations omitted). 16 Defendant’s argument that there was insufficient evidence to prove a nexus 17 between Defendant’s driving and impairment ignores Dr. Hwang’s testimony. As 18 Defendant observes, Dr. Hwang testified that alcohol consumption can diminish a 19 person’s coordination and ability to operate a mo tor vehicle. It is clear that the metro 20 court, as fact finder, belie ved that Defendant’s consump tion of alcohol had just this 21 effect. Thus, there was sufficient evid ence to allow the court to conclude that 22 Defendant consumed alcohol, her consumpti on of alcohol caused her to be impaired, 23 and her impairment resulted in her dangerous and unpredic table driving. We see no 2415 sufficiency issue. Defendant emphasizes Dr. Hwang’s testimony that alcohol affects 1 different people in marked ly different ways. While Dr. Hwang did provide this 2 testimony, it does not changeour conclusion that there was sufficient evidence to 3 support the district court’s determination that Defendant’s consumption of alcohol 4 caused her impaired driving. 5 CONCLUSION 6 For the foregoing reasons, Defendant’s convictions are affirmed. 7 IT IS SO ORDERED. 8

__________________________________ 9 CELIA FOY CASTILLO, Chief Judge 10

I CONCUR: 11

__________________________________ 12 CYNTHIA A. FRY, Judge 13

RODERICK T. KENNEDY, Judge (c oncurring in result only) 1416 KENNEDY, Judge (concurring in result only) 1 I concur in affirming the conviction and that the most salient objections to the 2 admission of Form 705 were either not raised(confrontation) or resulted in harmless 3 error when placed against the remainder of ev idence in the case. I write separately to 4 state that, in my view, the foundation for the admission of Form 705 was insufficient, 5 and the form should never have been admitted when based on testimony such as was 6 presented through Dr. Hwang. The four days of lag time in getting the blood to SLD 7 and its delivery by the unidentified “L.C .” impugns the authenticity and chain of 8 custody but, Form 705 as admitted contains muchmore information. It indicates that 9 the “blood alcohol content (BAC) of the blood drawn from Defendant was 10 .07gms/100ml.” [Majority Opinion page 4, lin es 11-13] It is the only evidence of the 11 actual alcohol content of Defendant’s blood. The trial judge mentioned Dr. Hwang’s 12 testimony as to the test result as showing De fendant had alcohol in her system. It is 13 with Dr. Hwang’s testimony that the inadmissible contents of the form are made 14 manifest. 15 The State qualified and presented Dr. Hwang’s “expert” testimony after 16 eliciting a string of qualifications and certif ications for himself and SLD. None have 17 a thing to do with the testimony about Form 705, which states that blood was taken 18 and transported, a test was performed, and a test result was obtained. Dr. Hwang was 1917 specific that he had not had any contact whatsoever with the blood or the test in this 1 case. He stated that he could not vouch for the quality of the blood or the authenticity 2 of the blood kit. He testified that his anal ysts are all well trained and that he “did not 3 see any irregularities” in the procedures usedfrom Form 705. The sole fact to which 4 he testified, in essence, is that he had a personal belief that the test was performed 5 correctly from the “business record” beforehim. With a nod to Carl Sagan, the 6 absence of evidence concerning “irregulariti es” is not evidence of their absence. 7 Expert testimony must be worth more than being an expert on reading and 8 communicating confirmatory appearances from a piece of paper without committing 9 to giving relevant evidence to the case at hand. As a result, we do not knowthat in 10 this case the analyst correctly employed accepted methods and obtained a valid result. 11 Recent confrontation clause jurispruden ce in this area makes clear that the 12 reason analysts are required to personally tes tify to the work they perform is that, on 13 occasion, they make mistakes that are cons equential to the fundamental rights of the 14 accused. I am convinced that a real examin ation of evidence is th e disinfectant for the 15 persistent questions that arise when s upposition and third-hand testimony are allowed 16 to establish the “science” used to establish a conclusive element of a defendant’s guilt. 17 Recent cases make apparent the need for judges to critically evaluate evidence 18 presented in the guise of scientific or technical evidence. The touchstones and 1918 signposts in cases and other literature available to trial judges amply instruct on how 1 to employ a correct quantum of skepticism and critical thinking when presented with 2 questionable evidence couched in high-s ounding scientific jargon and bureaucratic 3 regularity. There is a mountain of information available to attorneys as to how an 4 adequate foundation for this evidence can properly be laid, as we ll as how to attack 5 it. 6 However, even ignoring evidence of and from Form 705, I yield to the 7 incredibly bad driving and supportive, if equivocal, symptoms given us by 8 Defendant’s conduct and agree that a rational finder of fact could find the evidence 9 sufficient to convict. I therefore agree that Defendant’s conviction should be 10 affirmed. 11 12

__________________________________ 13 RODERICK T. KENNEDY, Judge 14