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State v. Collins3/4/2005
. Defendant introduced evidence intended to show that the BAC machine was unreliable, including that it had given a previous out-of-range result during a calibration check and that Defendant had chewing tobacco in his mouth which may have affected the results of the test. However, there was also evidence that showed that, after the out-of-range reading, the machine received maintenance which included calibration checks that indicated the machine was within range and functioning properly. Further, there was evidence that if Defendant had tobacco in his mouth, the machine would have given a reading of "interferant detected," and that the machine did not give that reading. Under these circumstances, a rational jury could have concluded that Defendant's BAC may have been less than .16 but greater than .08. Thus, the third prong of the Meadors test is met in this case.
We conclude that all three prongs of the Meadors cognate approach test are met in this case. We hold that DWI .08 was a lesser included offense of aggravated DWI in this case, and that Defendant had notice of the lesser included charge of DWI .08.
b. Sua Sponte Amendment of the Charges
Defendant also argues that the district court erred by amending the pleadings sua sponte to include the offense of DWI .08. He claims that the charges were amended by the court at the close of evidence over his objection in violation of the rule that an amendment to the charge may not "impose an entirely new charge against a defendant after the close of testimony." State v. Roman, 1998-NMCA-132, 9, 125 N.M. 688, 964 P.2d 852.
During cross-examination of the officer by defense counsel on the subject of the field sobriety tests, the court requested counsel for both parties to approach. Though the discussion at the bench is difficult to hear on the tapes submitted with the record, it is clear that the court addressed the issues of jury instructions. The State said that the jury instructions should include one on the charge of aggravated DWI, one on the charge of DWI .08 as a lesser included offense of aggravated DWI, and one on not guilty of DWI. The court then asked the State if it was amending the charge against Defendant and the State answered "Yes." Nothing more on amending the charges was discussed at the bench conference. Later, after the close of evidence, Defendant objected to the jury instruction on the lesser included offense of DWI .08. At that time, the court stated that it considered the charge amended to conform to the evidence adduced at trial.
We fail to see how the amendment was sua sponte. During the questioning of the State's first witness, the court asked the State to clarify whether the State's request for the jury instruction of DWI .08 was also a motion to amend the charges. The State responded that it did seek to amend the charges and the court granted the State's request at that time.
Moreover, even were the amendment in this case sua sponte or at the close of evidence, we would not find error. In McGee, we stated:
Meadors starts with the accepted proposition that a trial court, upon the State's request, may consider an uncharged offense if the statutory elements of the lesser crime are a subset of the statutory elements of the charged crime[.] . . . Simply put, a defendant is on constructive notice that he may have to defend against a lesser included, uncharged offense that satisfies the strict elements test.
McGee, 2002-NMCA-090, 9 (citation omitted). Similarly, a charging document containing only a greater offense gives constructive notice of an offense that is a lesser included offense under the cognate approach. See Meadors, 121 N.
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