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Fugere v. State4/6/1995
hearing officer had to require a threshold showing of the RBT's validity. See ) (upon proper objection, there must be threshold showing of validity of breath test results as foundation for admission of evidence), cert. denied , 114 N.M. 82, 835 P.2d 80 (1992). However, Plummer is distinguishable because the defendant in that case, unlike Fugere, took the designated test and challenged the validity of the results because of testimony that the machine had not been calibrated for five months at the time the defendant took the test. . In this case, Fugere never submitted to the breath test requested of him, so there are no results to challenge. Consequently, we reject Fugere's argument.
Therefore, just as in the context of a probation revocation hearing, a motorist wishing to challenge the reliability of a breath or blood test or the accuracy of the results of such tests must do so at the license revocation hearing within the reasonable ninety-day time period prescribed under Section 66-8-112(F). A challenge may only be made after a motorist has taken the test designated by law enforcement.
V. Arbitrary and Capricious Action by Hearing Officer
The final issue raised on appeal is whether the decision of the hearing officer to revoke Fugere's license is arbitrary and capricious.
An abuse of discretion is established if the agency or lower court has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. An abuse of discretion will also be found when the decision is contrary to logic and reason.
On appeal, the role of an appellate court in determining whether an administrative agency has abused its discretion by acting in an arbitrary and capricious manner, is to review the record to determine whether there has been unreasoned action without proper consideration in disregard for the facts and circumstances.
) (citations omitted.)
As discussed above, the hearing officer did not exceed its statutory authority nor violate its rules when it revoked Fugere's driver's license for one year. Nor did the hearing officer deprive Fugere of his due process rights. Finally, the findings of the hearing officer are supported by the evidence and the decision is supported by the findings. Accordingly, we hold that the hearing officer's decision is not arbitrary or capricious.
Conclusion
For the foregoing reasons, we affirm the district court's Order and Judgment affirming the revocation of Fugere's driver's license for one year.
IT IS SO ORDERED.
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