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State v. Collins3/4/2005
0 minutes deprivation period must be initiated.
7.33.2.12(B)(1) NMAC (2004). However, this regulation does not apply in this case. Defendant was arrested and the BAC test was administered on January 27, 2001. The regulation cited and quoted here did not become effective until March 14, 2001. 7.33.2.5 NMAC (2004).
The regulation in effect at the time Defendant was tested, and therefore the regulation applicable in this case, reads:
Two breath samples shall be collected and/or analyzed by certified Operators or Key Operators only, and shall be end expiratory in composition. Breath shall be collected only after the subject has been under continuous observation for at least 20 minutes prior to collection of the first breath sample. If during this time the subject regurgitates or introduces any foreign substance suspected of containing alcohol into his mouth or nose, another 20 minutes observation period must be initiated.
Regulations Governing Blood and Breath Testing Under the New Mexico Implied Consent Act, 6 N.M. Reg. No. 3 at 272, 275 (Feb. 15, 1995).
This regulation did not require the officer to take affirmative steps to "ascertain" whether Defendant had anything in his mouth before administering the BAC test. Id. The officer needed only to continuously observe Defendant for twenty minutes to determine whether he "regurgitate or introduce any foreign substance suspected of containing alcohol into his mouth or nose." Id. There was testimony that the officer observed Defendant for twenty minutes and there was no testimony that Defendant regurgitated or introduced any foreign object into his mouth during that time. We conclude that the State met its burden of showing that the test was conducted in accordance with the applicable regulation.
3. Admission of the BAC Test Results Was Not Error Even Though There Had Been a Prior Out-of-Range Calibration Test
Defendant contends his conviction should be reversed because the BAC test was performed on a malfunctioning machine and the State failed to show that the "out of range" reading produced at an earlier date did not affect the reliability of the test. If a defendant raises an issue as to the validity of a BAC test result, the State must make a threshold showing that the result was reliable in order for the results to be admitted into evidence. See State v. Christmas, 2002-NMCA-020, 10, 131 N.M. 591, 40 P.3d 1035. Evidentiary rulings are reviewed for an abuse of discretion. Id. 8. We conclude that the district court did not abuse its discretion in determining that the State met its burden of making the required threshold showing of the reliability of the BAC test results. See id. 8-12.
At trial, the State called Julie Lucero, a forensic toxicologist who works for the State Laboratory Division, to testify regarding the reliability of the Intoxilyzer 5000, commonly called the IR 5000, which was the machine used to test Defendant's BAC. On cross-examination, defense counsel raised the issue of the reliability of the IR 5000 by eliciting testimony that there was a test sample that was out of range on January 11, 2001, and that the machine was sent for preventative maintenance on January 24, 2001.
Ms. Lucero described the maintenance performed and testified that, during the inspection, there was no problem with the IR 5000. During the preventative maintenance, a calibration check was done, in which the machine produced readings within the guidelines set by the State Laboratory Division. See Regulations Governing Blood and Breath Testing Under the New Mexico Implied Consent Act, 6 N.M. Reg. No. 3 at 278.
Defendant claims tha
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