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State v. Christian3/13/1995
Opinion
BOSSON, Judge.
Defendant appeals his conviction for driving while under the influence of intoxicating liquor (DWI), based upon a blood-alcohol level exceeding .10%. We discuss whether a blood-alcohol report from the Scientific Laboratory Division of the New Mexico Department of Health (state laboratory), can properly be admitted into evidence under the exceptions to the hearsay rule for business records and public records, where the author of the report does not testify. See SCRA 1986, 11-803(F) & (H) (Repl. 1994). We also discuss whether admission of this report violates Defendant's right to confrontation under the United States Constitution. We affirm Defendant's conviction based on that report. See NMSA 1978, § 66-8-102(A) & (C) (Cum. Supp. 1993) (effective until Jan. 1, 1994).
FACTS
While driving home on April 30, 1993, Defendant swerved to avoid hitting a herd of antelope running across the road. His van veered to the side of the road, rolled over, and landed in a ditch. Defendant admitted drinking two beers in town and buying another six-pack on the way home. Upset about the accident, Defendant drank another four beers at the accident site. When police arrived, the van was upright in the ditch with the engine running and the tires spinning. Defendant was sitting in the driver's seat. Several witnesses testified to Defendant's appearance of intoxication.
At the hospital, Defendant consented to a blood-alcohol test in the presence of a state police officer. The officer observed the nurse draw two vials of blood using a kit provided by the state laboratory. The officer helped seal the vials and send them to the state laboratory for analysis.
A chemist for the state laboratory, Alexander Gallegos, extracted two samples from one vial and tested each sample for blood-alcohol content. Based on the two independent tests, Gallegos prepared a blood-alcohol report (the Gallegos report), which concluded that Defendant's blood-alcohol level was .16%, far in excess of the legal limit. However, Gallegos did not testify at trial. Instead, the State called his supervisor, Dr. Jeffrey Robb, to lay the evidentiary foundation for the test results and blood-alcohol report. Based upon Dr. Robb's testimony, the blood-alcohol report was admitted into evidence as a business record.
Using a general verdict, a jury found Defendant guilty of DWI. The trial court instructed the jury that it could convict upon a finding of driving either, "while under the influence" or, in the alternative, with a blood-alcohol level of .10% or more. NMSA 1978, § 66-8-102 (A) & (C); SCRA 1986, 14-4501 & 14-4503. The jury was not required to specify the basis for its verdict. At the time of Defendant's conviction, ), cert. quashed , 104 N.M. 702, 726 P.2d 856 (1986) required that, under a general verdict, sufficient evidence support each alternative theory of guilt. The very recent opinion of this Court in ), cert. granted , 118 N.M. 90, 879 P.2d 91 (1994), overruled Shade on this point. Id. at 98, 879 P.2d at 99. Because Olguin was filed after Defendant's conviction, the parties disagree about its applicability to this case. We need not decide this issue because the evidence sufficiently supports both theories. In fact, Defendant does not deny the presence of substantial evidence to prove driving "under the influence," based upon the rather graphic testimony of those who observed Defendant at the scene. Instead, Defendant challenges the alternative basis
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