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State v. Collins3/4/2005
had met the foundational requirements and the jury was required to determine if Defendant's BAC was .16 or greater beyond a reasonable doubt in order to convict him of aggravated DWI. The jury acquitted Defendant of aggravated DWI. Yet the jury convicted him of DWI .08, presumably determining that reasonable doubt existed that the .17 and .18 readings were sufficiently accurate to convict for aggravated DWI, but that those readings were sufficiently accurate, beyond a reasonable doubt, to convict based on a BAC of .08 to .15.
Evidence before the jury as to Defendant's claimed tobacco use, as well as testimony indicating there was an allowable margin of error in BAC readings, gave the jury a rational basis on which to consider the BAC readings with some scepticism, yet also a rational basis on which to find the BAC readings probably indicative of a BAC somewhere between .08 and .15. Our cases indicate that a defendant's contentions that a BAC test has been compromised in some manner goes to the weight of the evidence. See State v. Montoya, 1999-NMCA-001, 12, 126 N.M. 562, 972 P.2d 1153; Gardner, 1998-NMCA-160, 17. We conclude that it was not error to permit the jury to consider whether Defendant was guilty of DWI .08. Cf. State v. Baldwin, 2001-NMCA-063, 23, 130 N.M. 705, 30 P.3d 394 (stating that, in New Mexico, "a jury may reasonably infer that an excessive BAC reading relates back to the time of driving").
CONCLUSION
For the foregoing reasons, we affirm.
IT IS SO ORDERED.
JONATHAN B. SUTIN, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Chief Judge
LYNN PICKARD, Judge
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