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State v. Collins3/4/2005
t, despite the within-range calibration check, the State failed to meet its burden of making a threshold showing of validity because the State did not show the cause of the prior out-of-range reading, nor did the State explain how the problem was corrected. The proper threshold showing of the validity of the BAC test is made when the State shows that it complied with the regulations of the State Laboratory Division of the Department of Health. Gardner, 1998-NMCA-160, 11. Regulations required the machine to be calibrated every seven days and the results of the calibration check to be within .01 grams of alcohol per 210 liters of the target solution. Regulations Governing Blood and Breath Testing Under the New Mexico Implied Consent Act, 6 N.M. Reg. No. 3 at 278 ("Breath analysis instruments shall be field certified for proper calibration at least once in every seven-day period by a certified key operator using a solution of ethyl alcohol authorized by the Scientific Laboratory Division. . . . A field certification is valid when the results of the approved ethyl alcohol solution test is at target value + .01 grams per 210 liters.").
Because the State showed that the IR 5000 was calibrated and functioning properly within the seven-day period prior to Defendant's BAC test on January 27, 2001, we hold that the calibration requirements in the regulations were met and that it was not an abuse of discretion for the district court to admit the results of the BAC test. Defendant's arguments regarding the reliability of the IR 5000 went to the weight of the evidence and not its admissibility, and the court properly let the issue go to the jury. See Gardner, 1998-NMCA-160, 10.
4. Defendant Did Not Preserve the Confrontation Clause Issue
Defendant argues that the district court refused to allow him to cross-examine the officer regarding the field sobriety tests after the State was afforded ample direct examination on those tests and that Defendant was therefore denied the right to confront his accusers. During defense counsel's cross-examination of the officer, he asked whether there was snow or ice on the ground where Defendant stepped out of his vehicle. The officer testified that he did not look at the ground in that spot and that he did not remember snow being there. Then the court asked counsel to approach the bench. During the bench conference, defense counsel was told that his cross-examination of the officer on the subject of the field sobriety tests was becoming tedious. The State noted that it would object, if necessary, on the grounds that questions had been asked and answered. Defense counsel stated he would have to continue. After the bench conference, defense counsel questioned the officer on whether he remembered snow being on the ground. The State objected that the question was asked and answered, and the court sustained the objection. No other questions were asked during cross-examination on the subject of the field sobriety tests.
"The issue of denial of the right to confrontation may not be raised for the first time on appeal." State v. Lucero, 104 N.M. 587, 590-91, 725 P.2d 266, 269-70 (Ct. App. 1986). In Lucero, the defendant did not make an objection at the time one would have been expected, and though he made an objection earlier, his objection was on the basis that there was no exception to the hearsay rule for the testimony elicited. Id. at 591, 725 P.2d at 270. The court found that the "defendant's objection was not sufficiently specific to alert the trial court to the claimed constitutional error. . . . The court had no opportunity to reach the confrontation issue." Id. (citations omitted). In the present case, Defendant at no time alerted the dist
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