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State v. Gutierrez11/15/1995
BOSSON, Judge.
1. Defendant appeals the district court affirmance of his metropolitan court convictions for driving under the influence of intoxicating liquor or drugs (DWI), failure to maintain traffic lane, and no proof of insurance. On appeal, Defendant challenges the admission of the breath alcohol test (BAT) results and claims that the State failed to provide him with dispatcher call records (CAD) and Department of Motor Vehicle (DMV) reports, violating his right to confrontation. We affirm the decision of the district court.
BREATH ALCOHOL TEST
2. Defendant challenges the admission of the BAT results on two grounds: improper admission of hearsay statement and inadequate foundation provided to allow admission.
Hearsay Objection
3. Defendant argues that the only instances where a BAT card is admissible under the hearsay rule are in those cases where the defendant is entitled to an appeal de novo. See SCRA 1986, 7-607(A) (Repl. 1994). It appears that, even if this issue had been presented to the metropolitan court, it was abandoned on appeal to the district court. Nothing in the briefs that were presented to the district court would have alerted the district court to Defendant's argument that the BAT is inadmissible hearsay in cases not allowing an appeal de novo. See, e.g., ) (to preserve an issue for appeal, defendant must make a timely objection which specifically apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon). The only argument in Defendant's district court brief was his objection to the admission of the BAT test, because the State "had not produced the proper witness to prove up the calibration of the machine." Defendant mentioned that he had argued the inapplicability of SCRA 7-607 to the metropolitan court, but he presented no argument to the district court regarding why SCRA 7-607 would be inapplicable to his case. It is our opinion that reference to an argument, allegedly made in metropolitan court, does not specifically apprise the district court of the nature of the claimed error, and, in fact, the district court did not address this issue. Finally, Defendant did not file a motion for reconsideration when the district court failed to address this issue in its memorandum opinion. We hold Defendant abandoned this issue, and we do not address it on appeal.
4. Even if Defendant had not abandoned this issue and the BAT card were inadmissible, we would still affirm. Defendant was not convicted of having a particular blood-alcohol level. He was convicted of the more general offense of driving while intoxicated. Compare NMSA 1978, § 66-8-102(A) (Repl. Pamp. 1994) (unlawful to drive under influence of intoxicating liquor) with Section 66-8-102(C) (unlawful to drive with alcohol concentration of .08 in blood or breath). The evidence presented to the metropolitan court, without consideration of the BAT results, fully supports Defendant's conviction under subsection A. See ) (evidence supported finding that the defendant was under the influence of intoxicating liquor), cert. denied, 104 N.M. 702, 726 P.2d 856 (1986). There was evidence that Defendant was weaving into other traffic lanes; Defendant narrowly missed hitting a truck; Defendant smelled of alcohol and had bloodshot, watery eyes; Defendant failed three field sobriety tests; Defendant admitted drinking alcohol and smoking marijuana; and the officers believed that Defendant was intoxicated. "In a bench trial, the trial court is presumed to have disregarded improper evidence, and erroneous admission of evidence is not reversible error unless it appears the trial court must have relied on it in reaching its decision." See ),
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