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State v. Onsurez5/13/2002
Defendant was convicted in magistrate court of aggravated driving while intoxicated. He filed a de novo appeal, was convicted in district court, and now appeals his judgment and sentence. Defendant makes the following arguments: (1) the State failed to show the scientific reliability of the machine on which his breath was tested, (2) the State failed to show compliance with certain mandatory regulations of the State Laboratories Division (SLD) relating to the testing of his breath, and (3) the State failed to prove that the readings of the breath test machine were measured in grams of alcohol per 210 liters of breath. We affirm.
BACKGROUND
On May 25, 2000, Deputy Richard Sillas of the Eddy County Sheriff's Department found Defendant leaning against his vehicle, which was stuck in an irrigation ditch by the side of the road. Sillas testified that Defendant admitted to having had two beers. Defendant's eyes were bloodshot and watery, and he smelled strongly of liquor. He initially refused to take field sobriety tests, claiming that he would fall down if he moved away from his vehicle. Eventually, he took and failed the field sobriety tests. Sillas arrested Defendant and tested his breath on an Intoxilizer 5000 (IR-5000).
Sillas testified that SLD had trained and certified him to operate the IR-5000, and to run calibration tests every seven days to insure that it performed within SLD standards. At the time of Defendant's arrest, the IR-5000 belonging to Eddy County was in Santa Fe, so Sillas used an IR-5000 belonging to the City of Carlsbad to test Defendant. Even though Sillas did not normally use this particular IR-5000, he had used the same model hundreds of times.
Before testing Defendant's breath, Sillas checked to make sure the IR-5000 had been calibrated properly. It had last been calibrated on May 22, 2000, three days earlier. It was not calibrated again until May 30, 2000, five days after Defendant's breath test. This resulted in an eight-day interval between calibrations. Sillas also observed Defendant for twenty minutes before testing his breath to ensure that he did not "burp, vomit, cough for a long period of time," drink anything, or put any foreign matter in his mouth.
Further facts will be provided as necessary.
DISCUSSION
Scientific Reliability and Compliance With SLD Regulations
At trial, the State began questioning Sillas about the operation of the IR-5000, and Defendant objected on the ground that Sillas was not qualified to testify about the science involved. The State countered that Sillas was only testifying about the physical operation of the machine and continued its questioning. The trial court did not rule on Defendant's objection but allowed questioning to continue. We construe the court's silence as a ruling that it was not necessary for Sillas to be qualified to testify about the scientific reliability of the breath testing.
Defendant argues that the State had to prove the IR-5000 was scientifically reliable in accordance with Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993) (holding that trial court must determine whether purported scientific evidence meets threshold level of reliability), and State v. Alberico, 116 N.M. 156, 166-69, 861 P.2d 192, 202-05 (1993) (same). Defendant contends that because the State did not make such a showing, the trial court erred in admitting the results of his breath test.
We review the trial court's admission or exclusion of evidence for abuse of discretion. State v. Sarracino, 1998-NMSC-022, 20, 125 N.M. 511, 964 P.2d 72. The trial court abuses its discretion when it admits evi
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