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State v. Onsurez5/13/2002
ury understand what the defendant's score means; it is not intended to be an independent element of the offense. The instruction tells the jury only that it must find the magnitude of the number, i.e., whether it is 0.16 or higher.
Because we hold the measurement ratio is a foundational requirement for admission rather than an element of the offense, we now consider whether Defendant preserved his objection to admission of his breath test results. To preserve the issue for appeal, Defendant was required to alert the district court to his objection at the time the results of his breath test were offered and entered into evidence. In order to preserve an objection to the admission of evidence for appellate review, a party must make "a timely objection or motion to strike . . . stating the specific ground of objection." Rule 11-103(A)(1); see also State v. Jacobs, 2000-NMSC-026, 12, 129 N.M. 448, 10 P.3d 127 ("In order to preserve an issue for appeal, it is essential that a party must make a timely objection that specifically apprises the trial court of the claimed error and invokes an intelligent ruling thereon.").
Defendant objected to the admission of the results of his breath test only on the grounds that (1) the State had not shown the scientific reliability of breath testing and (2) it had not shown compliance with the "administrative regulations that require mandatory testing." He did not object that the State had failed to show the results were measured in grams of alcohol per 210 liters of breath. (See id.) Defendant waited until closing argument to point out that the State had offered no evidence whatsoever that the machine measured grams of alcohol in liters of breath. He thus failed to preserve his objection to the admission of the test results on this ground. See State v. Clark, 108 N.M. 288, 296, 772 P.2d 322, 330 (1989) (stating that failure to object to improper testimony or argument generally bars review on appeal).
Absent preservation of the issue, we review the admission of the test results only for plain or fundamental error. Begay, 1998-NMSC-029, 20-23. For the reasons explained above, we find neither. See also State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991) ("The doctrine [of fundamental error] is not applicable merely to excuse a failure to make a timely objection during trial.").CONCLUSION
We affirm Defendant's conviction.
IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
RICHARD C. BOSSON, Chief Judge
CELIA FOY CASTILLO, Judge
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