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State v. Christmas12/28/2001
Defendant was convicted of driving under the influence of intoxicating liquor (DWI), contrary to NMSA 1978, § 66-8-102(A), (C) (1999). On appeal, Defendant argues (1) the trial court abused its discretion in admitting the results of breath-alcohol testing when the breathalyzer machine's internal calibration check may not have been operational at the time of testing, (2) the trial court abused its discretion in denying Defendant's motion for a mistrial in light of inadmissible testimony regarding the horizontal gaze nystagmus (HGN) test, (3) the evidence was insufficient to support Defendant's DWI conviction because the State did not introduce evidence relating Defendant's breath-alcohol test results back to a particular breath-alcohol content at the time of driving, and (4) the trial court erred in declining Defendant's request for a special verdict form.
As to Defendant's first three arguments, we affirm the trial court. Our disposition of the first three arguments makes it unnecessary to decide Defendant's fourth argument.
BACKGROUND
Shortly before 1:00 a.m. on December 20, 1998, Officer Thomas Harzewski observed Defendant's vehicle driving on Interstate 25 and noticed that the license plate light was not operational. Officer Harzewski began to follow Defendant and observed Defendant's vehicle crossing the center line. When Officer Harzewski pulled Defendant over, he noticed the odor of alcohol. When Defendant was asked if he had been drinking, he acknowledged that he had consumed alcohol earlier, but said he had "slept some" in the interim before driving. Officer Harzewski conducted three field sobriety tests: the HGN test, the one leg stand test, and the walk and turn test.
Officer Harzewski testified that Defendant did "fairly well" on the one leg stand test. Although the officer indicated at trial that there were some minor "clues" of possible intoxication in Defendant's performance, he decided to give Defendant the benefit of the doubt and passed him on that test.
Defendant did not perform as well on the walk and turn test. Officer Harzewski testified that: Defendant failed to follow instructions, he had to ask how many steps he had taken so far, he failed to walk a straight line, and he failed to place his heel near his toe at almost every step. The officer gave Defendant two chances to perform the walk and turn before determining that he had failed that test. Additionally, Officer Harzewski testified that Defendant appeared "agitated," displayed an "aggravated attitude," and seemed "a little bit nervous."
Defendant was arrested and brought to the Truth or Consequences police station, where a breath-alcohol test was administered by Officer Harzewski utilizing a breathalyzer machine. Defendant registered a .09 breath-alcohol concentration (BAC) at 1:44 a.m., and a .08 level at 1:47 a.m., about an hour after Defendant had stopped driving. At 1:45 a.m., in the interval between the two tests administered to Defendant, the machine's internal calibration check produced a reading of .000.
Defendant was charged with DWI and eventually convicted by a jury. He now appeals that conviction.
DISCUSSION
Admissibility of the Breath-Alcohol Test
We review the trial court's evidentiary rulings for abuse of discretion. See State v. Woodward, 1996-NMSC-012, 6, 121 N.M. 1, 908 P.2d 231, rev'd on other grounds by Woodward v. Williams, 263 F.3d 1135 (10th Cir. 2001). "`An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless
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