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State v. Smith10/20/1999
{1} Calvin Smith was convicted after a bench trial, in Metropolitan Court, of Driving While Intoxicated (DWI), contrary to NMSA 1978, § 66- 8-102 (1997). Following his conviction, Defendant appealed to the district court, which affirmed. Defendant presents only one issue on appeal to this Court: whether the results of his breathalyzer tests were properly admitted at trial. We affirm the judgment of the trial court.
FACTUAL BACKGROUND
{2} At approximately 1:53 a.m., July 9, 1997, Officer Don Chavez of the Albuquerque Police Department observed Defendant duck down behind the dashboard of his truck which was parked, with its motor running and lights on, in the lot of the Gaslight Motel on Central Avenue. Officer Chavez watched Defendant's truck for some time, waiting for him to lift his head. Defendant, however, remained out of view. Believing Defendant's behavior to be suspicious, the officer approached the vehicle and asked Defendant what he was doing. He replied, "Trying to hide from you."
{3} In further speaking with Defendant, Officer Chavez noted his speech was slurred, that he had bloodshot and watery eyes, and that he had a "strong odor of alcoholic beverage" on his breath. The officer asked Defendant if he had been drinking, and Defendant replied that he had. Suspecting him of being drunk, Officer Chavez then administered three field sobriety tests on Defendant: the horizontal gaze nystagmus, the walk-and-turn, and the one-legged-stand tests. Defendant failed each. Officer Chavez then arrested him.
{4} Back at the police station, Officer Chavez administered two breathalyzer tests upon Defendant using an Intoxilyzer 5000 machine. Defendant failed both, blowing a 0.16% and a 0.14%.
{5} The State charged Defendant, by amended complaint, with DWI, first offense. He was tried on this charge at a December 30, 1997, bench trial. Officer Chavez was the only witness. On direct examination, he testified to Defendant's slurred speech, bloodshot and watery eyes, the smell of alcohol on Defendant's breath, and his admission that he had been drinking. He further testified that he administered three sets of field sobriety tests upon Defendant, who failed each. He also noted that Defendant had difficulty exiting his vehicle, having to balance himself against it, and in following his instructions regarding the field tests. He testified that Defendant swayed throughout both the instructional and performance portions of the tests.
{6} Officer Chavez testified as well regarding his training and experience regarding the administration of breathalyzer tests using the Intoxilyzer 5000 machine. He testified that he had been certified to administer such tests for twelve years and that he had administered the test some 2000 to 3000 times. He further testified that there were no apparent problems with the machine or his administration of the test on July 9, 1997, when he administered the test on Defendant; that the machine conducted its internal self-calibration prior to Defendant's test; and that the record log attached to the machine indicated the machine had been calibrated within the past seven days. On cross examination, Officer Chavez testified that he was not involved in the calibration of the machine, but he did explain how the machine performs its self-calibration upon startup.
{7} When the State moved to admit the results of Defendant's breathalyzer tests, Defendant objected, arguing that Officer Chavez was not the custodian of the machine's calibration records and that the State had failed to adduce evidence regarding the machine's calibration. The trial judge admitted the results over this objection. Defendant was convicted
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