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State v. Baldwin7/19/2001
The opinion heretofore filed in this case is withdrawn and the following substituted therefor.
This appeal examines the evidence required to sustain a conviction under the so-called per se section of the driving while under the influence (DWI) statute, NMSA 1978, § 66-8-102(C) (1999). We hold that a blood or breath alcohol test administered over two hours after the time of driving, and yielding only marginal results, must be corroborated by additional evidence to support a jury verdict. That corroborative evidence may take various forms which we do not attempt to catalogue in this opinion. The evidence might include a police officer's observation of significant incriminating behavior on the part of the driver, or the evidence might include expert testimony relating the test result back in time to the time of driving. However, in the absence of probative corroborating evidence, Defendant's conviction lacks substantial evidence and cannot stand. Accordingly, we reverse Defendant's conviction under Section 66-8-102(C). We affirm Defendant's remaining conviction.
BACKGROUND
At about 12:30 a.m., New Mexico State Police Officer T.E. Christian observed Defendant driving his vehicle across the median on I-40 near Moriarity onto the interstate heading in the opposite direction. The officer stopped Defendant's car because, in his opinion, it was illegal to turn in a median.
Other than the illegal turn, the officer did not observe Defendant driving erratically or in an unsafe manner. Defendant stopped his vehicle promptly upon seeing the officer's signal. At that point, the officer did not suspect Defendant of DWI. Upon conversing with Defendant, the officer detected a moderate odor of beer on his breath. His speech was normal. According to the officer's testimony, Defendant admitted that during the past hour he had drunk a "few" beers or a "couple" of beers at a nearby bar in Moriarity. The officer then required Defendant to perform three field sobriety tests: the finger counting test, the counting backward test, and the horizontal gaze nystagmus (HGN) test which, according to the officer, Defendant failed. The officer then administered a breath alcohol test to Defendant. Defendant was charged with two DWI counts, under Sections 66-8-102(A) and 66-8-102(C), as well as driving illegally on a divided highway (crossing the median) in violation of NMSA 1978, Section 66-7-319 (1978). Approximately two hours and fifteen minutes after Defendant's arrest, a blood alcohol test was administered which showed a blood alcohol concentration (BAC) of 0.08.
At trial, the State first attempted to introduce the results of the breath alcohol test, but the State was unable to provide an adequate foundation for the accuracy of the test machine, and the court sustained Defendant's objection. Those test results are not part of this record. Over Defendant's objection, the State was then allowed to introduce the results of the blood alcohol test. At the conclusion of the State's case, Defendant moved for a directed verdict based on the insufficiency of the evidence. The court granted Defendant's motion for a directed verdict with respect to the DWI charge under Section 66-8-102(A) ("It is unlawful for any person who is under the influence of intoxicating liquor to drive . . . ."). However, the court denied the motion with respect to the DWI charge under Section 66-8-102(C) ("It is unlawful for any person who has an alcohol concentration of eight one-hundredths or more in his blood or breath to drive . . . ."). After Defendant presented his case, the jury deliberated and convicted Defendant of violating the per se section of the DWI statute, Section 66-8-102(C), as well
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