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State v. Collins3/4/2005
M. at 45, 908 P.2d at 739 (stating that under the cognate approach the defendant has notice of the charges against him when he cannot commit the greater offense in the manner described in the charging document without also committing the lesser offense). Based on these cases, we conclude that there is no need to amend a charging document to include a lesser included offense because notice of a lesser included offense is constructively given. Since amendment of the information was unnecessary, Defendant's argument that amendment of the charges was error is without merit.
2. Admission of the BAC Test Results Was Not Error Even Though the Officer Did Not Inspect Whether Defendant Had Tobacco in His Mouth
At trial, Defendant testified that he had chewing tobacco in his mouth during the BAC test. Defendant argues that the BAC test was not administered in accordance with the Implied Consent Act, NMSA 1978, ยงยง 66-8-105 to -112 (1978, as amended through 2003) (the Act), and regulatory requirements because the officer did not "ascertain" whether Defendant had chewing tobacco in his mouth by looking in Defendant's mouth with a flashlight. He also argues that because the requirements of the regulations were not met, he did not consent to the BAC test because consent is deemed given only if those requirements are met. Defendant argues that for these reasons the results of the BAC test were inadmissible.
The State argues that the fact finder may not have believed that Defendant had chewing tobacco in his mouth, that evidence was introduced that the machine would have given a reading of "interferant detected" if there was tobacco in Defendant's mouth, and that the regulations did not require the officer to look in Defendant's mouth. The State must show compliance with regulations governing breath alcohol testing in order to lay a proper foundation that the results of such tests are reliable and thus introduce the results into evidence. State v. Gardner, 1998-NMCA-160, 9, 126 N.M. 125, 967 P.2d 465. Similarly, in order for a defendant to have been deemed to have given his consent to a breath test under the Act, the State must comply with the regulations governing breath testing. Id. Thus, we view the issue as whether the State complied with the Act and the regulations in force at the time of Defendant's BAC test. We hold that the State complied with its requirements under the Act and the regulations. Thus, Defendant was deemed to have consented to the test and the results were admissible.
We must interpret a regulation contained in the Administrative Code. We review the provision de novo, as we would a statute. Cf. Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm'n, 2003-NMSC-005, 17, 133 N.M. 97, 61 P.3d 806 (noting that the appellate courts normally defer to agency rulings on the meaning of a regulation if "it implicates agency expertise" but also noting that statutory interpretation is done de novo); Old Abe Co. v. N.M. Mining Comm'n, 121 N.M. 83, 96, 908 P.2d 776, 789 (Ct. App. 1995) (noting, while testing the constitutionality of a regulation, that we test regulations by the same standards with which we test statutes).
Defendant cites the current Administrative Code provision governing BAC tests, which reads:
Two breath samples shall be collected and analyzed by certified Operators or Key Operators only, and shall be end expiratory in composition. Breath shall be collected only after the Operator or Key Operator has ascertained that the subject has not had anything to eat, drink or smoke for at least 20 minutes prior to collection of the first breath sample. If during this time the subject eats, drinks or smokes anything, another 2
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