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State v. Torres2/15/1999
{1} Defendant-Appellant Joe Jerry Torres appeals from the judgment of a bench trial finding him guilty of driving while his license was suspended or revoked, NMSA 1978, § 66-5-39 (1993), and the verdict of a jury trial finding him guilty of driving while intoxicated (DWI), NMSA 1978, § 66-8-102 (1993, prior to 1997 amendment), careless driving, NMSA 1978, § 66-8-114(B) (1969), failure to maintain a traffic lane, NMSA 1978, § 66-7-317 (1978), and failure to yield to emergency equipment, NMSA 1978, § 66-7-332 (1978). We hold that Torres's motion for continuance should not have been denied and that this denial prejudiced Torres's defense. We also hold that testimony as to the results of a Horizontal Gaze Nystagmus (HGN) test should not have been admitted at trial, because the State failed to lay a proper foundation for the admission of this expert testimony. Although the State qualified a police officer as an expert in administering the test, it failed to show the evidentiary reliability of HGN testing. For these reasons, we reverse and remand for a new trial.
I. BACKGROUND
{2} During the course of Torres's trial, Officer Joseph Byers described the sequence of events that led to his arresting Torres on January 16, 1994. Byers testified that, as he was concluding his shift, he observed a pickup completely weaving off the roadway into the shoulder while traveling from Interstate 40 onto Interstate 25 in Albuquerque. The vehicle then jerked back into the traffic lane. After switching on his siren and red flashing lights, and after the pickup failed to respond, Byers maneuvered his patrol car parallel to the pickup and shined his spotlight into its interior. Despite having the spotlight aimed at his face, the driver of the pickup faced straight ahead and continued at a speed of fifty-five miles per hour. Byers identified Torres as the driver he saw with his spotlight and testified that he saw no other person in the vehicle during this time.
{3} Byers briefly pursued the pickup as it continued weaving on the freeway before exiting and making its way to a dead-end street. Byers followed the pickup down the street, and the driver parked under a carport. Byers testified that it was dark underneath the carport. Byers pulled up behind the pickup, but as the driver started to exit the vehicle, Byers was having difficulty shifting into park and switching off his siren. Byers then ran to the pickup and found Torres sitting on the driver's side. After encountering some resistance from Torres, Byers handcuffed him, placed him under arrest for DWI, and put him in the back of the patrol car. Byers testified that a strong smell of alcohol emanated from both the pickup and Torres's breath and that Torres had bloodshot eyes and slurred speech. Torres told Byers that he was not the driver of the pickup. He later argued to the jury that he had only been a passenger in the pickup during the traffic violations and that the driver of the pickup ran away from the truck before Byers made his way under the carport.
{4} Soon after Byers arrested Torres, Officer David Bowdich arrived at the scene to assist Byers. Bowdich took over the investigation and, based on observations leading him to believe Torres was intoxicated, administered three field sobriety tests: the nose touch test, the finger count test, and the HGN test. In administering the HGN test, Bowdich held a pen approximately twelve inches from Torres's face and asked him to focus on the top of the pen and follow it as it moved. Bowdich then determined whether Torres's eyes smoothly tracked the movement, whether there was any jerking of the eyes as the pen moved to a forty-five degree angle, and whether the eyes could remain at a for
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