{ "id": 4335121, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ABRAHAM BACA, Defendant-Appellant", "name_abbreviation": "State v. Baca", "decision_date": "2013-05-24", "docket_number": "No. 34,120; Docket No. 31,442", "first_page": "130", "last_page": "138", "citations": [ { "type": "official", "cite": "2013-NMCA-060" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2007-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3668396 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/141/0713-01" ] }, { "cite": "369 U.S. 141", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165831 ], "year": 1962, "pin_cites": [ { "page": "143", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/us/369/0141-01" ] }, { "cite": "115 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725510 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "455", "parenthetical": "\"The question presented by a directed verdict motion is whether there was substantial evidence to support the charge.\"" }, { "page": "157", "parenthetical": "\"The question presented by a directed verdict motion is whether there was substantial evidence to support the charge.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0445-01" ] }, { "cite": "1997-NMCA-080", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142213 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0690-01" ] }, { "cite": "2000-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217146 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0063-01" ] }, { "cite": "2012-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4190097 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 4" }, { "page": "\u00b6\u00b6 12-18" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0468-01" ] }, { "cite": "109 N.M. 736", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590318 ], "weight": 18, "year": 1990, "pin_cites": [ { "page": "737-38" }, { "page": "1018-19" }, { "page": "738" }, { "page": "1019" }, { "page": "738" }, { "page": "1019" }, { "page": "738" }, { "page": "1019" }, { "page": "739" }, { "page": "1020" }, { "page": "744" }, { "page": "1025" }, { "page": "741" }, { "page": "1022", "parenthetical": "stating that once a defendant is acquitted, whether there has been trial error or another defect in the process leading to the acquittal is not subject to review" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0736-01" ] }, { "cite": "2003-NMCA-146", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77155 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0710-01" ] }, { "cite": "1997-NMCA-051", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142231 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0372-01" ] }, { "cite": "2007-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669608 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 21" }, { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0705-01" ] }, { "cite": "2008-NMSC-043", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002479 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0458-01" ] } ], "analysis": { "cardinality": 909, "char_count": 25870, "ocr_confidence": 0.823, "pagerank": { "raw": 4.643594115661138e-08, "percentile": 0.2913785707197601 }, "sha256": "11c24e8846bd2e0009edb7f36fa1dec00ccc4d842ca349ebd7853dcf80455080", "simhash": "1:9948a5e7fa8b5757", "word_count": 4178 }, "last_updated": "2023-07-14T21:50:37.461651+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL E. VIGIL, Judge", "WE CONCUR:", "RODERICK T. KENNEDY, Chief Judge", "JONATHAN B. SUTIN, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ABRAHAM BACA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\nThis case commenced as a criminal prosecution in the magistrate court. The question presented is whether double jeopardy bars a trial de novo in the district court when the arresting officer completed his testimony on direct examination, and the magistrate court suppressed the arresting officer\u2019s testimony and dismissed the case with prejudice. We conclude that the magistrate court judge\u2019s ruling constituted an acquittal and that a trial de novo in the district court would violate Defendant\u2019s constitutional right to be free from double jeopardy. The district court having ruled otherwise, we reverse.\nI. BACKGROUND\nSergeant Martin Trujillo arrested Defendant and filed a criminal complaint in the magistrate court charging Defendant with aggravated driving while under the influence of intoxicating liquor (DWI) and illegally driving left of center on a roadway. NMSA 1978, \u00a7\u00a7 66-8-102 (2010) and -7-313 (1978). Magistrate Judge Naranjo dismissed the criminal complaint without prejudice after the prosecutor failed to attend a pretrial conference.\nThe prosecutor subsequently filed a second criminal complaint in the magistrate court charging the same offenses, but failed to comply with the requirements of Rule 6-506A(C) NMRA for a refiled criminal complaint. A non-jury trial commenced before Judge Naranjo, and the State called Sergeant Trujillo as its first witness. While he was testifying on direct examination, Defendant attempted to conduct a voir dire about the criminal complaint he filed and the second criminal complaint filed by the prosecutor. Judge Naranjo halted the inquiry, explaining that he wanted to hear the direct testimony without interruption and that the voir dire would be heard and considered during cross-examination. Judge Naranjo further stated that he would reserve ruling on the admissibility and weight of the testimony until after the cross-examination of Sergeant Trujillo was completed.\nDuring Sergeant Trujillo\u2019s cross-examination, Defendant demonstrated that the second criminal complaint filed by the prosecutor did not comply with the requirements for a refiled criminal complaint mandated by Rule 6-506A. Defendant therefore moved for a finding that the State had violated Rule 6-506A(C) and for a sanction to suppress Sergeant Trujillo\u2019s testimony. Judge Naranjo granted the motions, and he filed a final order dismissing the charges with prejudice. The order recites that upon Defendant\u2019s motion, the officer\u2019s testimony was suppressed, and the \u201ccase dismissed with prejudice of the following charge(s): aggravated driving while under the influence of intoxicating liquor or drugs and driving left of center of road ways.\u201d\nThe State appealed to the district court. See Rule 5-826(A) NMRA (stating that aparty who is aggrieved by the judgment or final order in a criminal action in magistrate court \u201cmay appeal, as permitted by law, to the district court\u201d). After the State\u2019s notice of appeal was filed, Judge Naranjo filed an amended final order on criminal complaint nunc pro tunc in the magistrate court. In pertinent part, this order states:\nA motion was made by [Defendant] to suppress the testimony of Sergeant Martin Trujillo for violation of [Rule] 6-506-A(C)[, ](D). Sergeant Martin Trujillo was the arresting [ojfficer. A second motion was made by [Defendant] for a directed verdict of not guilty due to insufficient evidence to proceed. Motion to suppress and directed verdict of not guilty were granted.\nTHE DEFENDANT IS THEREFORE ACQUITTED.\nThe State\u2019s appeal triggered a trial de novo to be held in the district court. See Rule 5-826(J) (\u201cTrials upon appeals from the magistrate or municipal court to the district court shall be de novo.\u201d). Contending that a trial de novo in the district court would violate his constitutional right to be free from double jeopardy, Defendant filed a motion to dismiss the State\u2019s appeal. See U.S. Const, amend. V (stating that no person shall \u201cfor the same offense to be twice put in jeopardy\u201d); N.M. Const, art. II, \u00a7 15 (stating that no person shall \u201cbe twice put in jeopardy for the same offense\u201d). The State responded, and the motion was set for an evidentiary hearing. The State also objected to the amended final order, and the district court ruled that the amended final order was not valid and would not be considered in ruling on Defendant\u2019s motion to dismiss.\nJudge Naranjo was subpoenaed to testify at the evidentiary hearing in district court. Judge Naranjo testified that after Sergeant Trujillo completed his direct testimony in the trial in magistrate court, Defendant asserted that the second criminal complaint did not comply with Rule 6-506A, and, for a sanction, asked that Sergeant Trujillo\u2019s testimony be suppressed. After taking a recess, Judge Naranjo was in the process of announcing his decision when the prosecutor interrupted and said the State was going to dismiss the charges. Judge Naranjo said he responded that \u201cI didn\u2019t need to listen to her dismissing the case, that I would be dismissing the case.\u201d Judge Naranjo said that after he announced that Sergeant Trujillo\u2019s testimony would be suppressed, defense counsel made a motion for a directed verdict, and he granted that motion as well. Judge Naranjo explained that he was reminded by defense counsel that instead of dismissing the case, he should find Defendant not guilty. Agreeing, Judge Naranjo announced that Defendant was not guilty of the charges. He granted the motion for a directed verdict because after Sergeant Trujillo finished testifying, he determined that Defendant \u201cwas not guilty of the charges, and, consequently, I dismissed the charges against him.\u201d\nReferring to the original order dismissing the case with prejudice, Judge Naranjo testified that it did not correctly reflect what had happened because he did not dismiss the case, he granted Defendant\u2019s motion for a directed verdict, and he found Defendant not guilty. Judge Naranjo said that the errors were likely made by his clerk in preparing the order, and when the errors were discovered, they were corrected in the amended order, which accurately reflects what actually occurred.\nIn cross-examination, Judge Naranjo acknowledged that other witnesses for the State were in the hallway when he dismissed the case and that the State had not finished presenting all of its evidence. Furthermore, he had no information on what evidence the other witnesses would have offered. Pressed how he could grant an acquittal without hearing these witnesses, Judge Naranjo answered:\n[T]he evidence that had been presented was being presented by the chief or the main witness for the State, in this case, Sergeant Martin Trujillo.\n[I]f the evidence was going to be suppressed where nothing could be heard from him, my opinion was that we should finish the case, terminate it.\nHe subsequently added that the most important evidence pertaining to the case \u201chad and should have been given by Sergeant Trujillo,\u201d and when Judge Naranjo granted the defense motion to suppress SergeantTrujillo\u2019s testimony, \u201cthat, to me, as far as I was concerned, would stop the case from going further.\u201d\nSergeant Trujillo also testified at the evidentiary hearing. In order to avoid him repeating what his testimony was at the magistrate court trial, and to save time, the parties stipulated that Sergeant Trujillo was the investigating and arresting officer and that he gave testimony that was relevant to proving a DWI charge in the magistrate court. Sergeant Trujillo then testified that after he completed giving his testimony at the trial, Defendant made an argument that the second criminal complaint filed by the prosecutor was missing information and that after taking a recess of about five minutes, Judge Naranjo ruled he would suppress Sergeant Trujillo\u2019s testimony, and he dismissed the case with prejudice. In addition, Sergeant Trujillo also remembered that the term \u201cdirected verdict\u201d was also used, although he was not sure exactly when.\nThe district court denied Defendant\u2019s motion to dismiss, reasoning that the sanction imposed in the magistrate court for a violation of Rule 6-506A(C) \u201cwas not an evidentiary ruling but was based on a procedural issue.\u201d Therefore, the district court concluded that double jeopardy was not a bar to a trial de novo in the district court under State v. Montoya, 2008-NMSC-043, \u00b6 11, 144 N.M. 458, 188 P.3d 1209 (\u201c[A]n order of dismissal on procedural grounds or in a manner that does not amount to an acquittal is an appealable final order.\u201d), and State v. Lizzol, 2007-NMSC-024, \u00b6 12, 141 N.M. 705, 160 P.3d 886 (stating that a legal judgment that a defendant may not be prosecuted for reasons unrelated to factual guilt or innocence is not an acquittal). Defendant appeals. We have jurisdiction pursuant to State v. Apodaca, 1997-NMCA-051, \u00b6 17, 123 N.M. 372, 940 P.2d 478 (allowing an immediate appeal from an order denying a motion to dismiss on grounds of double jeopardy).\nII. ANALYSIS\nDefendant contends the district court erroneously denied his motion to dismiss on double jeopardy grounds. We generally apply a de novo standard of review to whether double jeopardy applies to a given set of facts. State v. Andazola, 2003-NMCA-146, \u00b6 14, 134 N.M. 710, 82 P.3d 77.\nWe begin our analysis with County of Los Alamos v. Tapia, 109 N.M. 736, 790 P.2d 1017 (1990). In Tapia, a police officer observed the defendant running a stop sign and driving with an inoperable tail light near the Los Alamos-Santa Fe County boundary. The police officer pursued the defendant into Santa Fe County, where he arrested the defendant for DWI. Id. at 737-38, 790 P.2d at 1018-19. Following his conviction in the Los Alamos County municipal court, the defendant appealed to the district court for a trial de novo. Id. at 738, 790 P.2d at 1019; see NMSA 1978, \u00a7 35-15-10 (1959) (\u201cAll trials upon appeals by a defendant from the municipal court to the district court for violations of municipal ordinances shall be de novo and shall be tried before the court without a jury.\u201d). The first witness was the arresting officer who testified about his observations, the defendant\u2019s field sobriety tests, and a breath test. Tapia, 109 N.M. at 738, 790 P.2d at 1019. During the officer\u2019s testimony, the defendant made a motion to suppress all evidence resulting from the arrest on grounds that the arrest in Santa Fe County violated the Fresh Pursuit Act, NMSA 1978, \u00a7\u00a7 31-2-1 to -8 (1937, as amended through 1981). Tapia, 109 N.M. at 738, 790 P.2d at 1019. The district court judge agreed with the defendant and granted the motion to suppress. Id. The district court also dismissed the charges because the defendant\u2019s arrest was \u201cillegal\u201d and all evidence in support of the charges had been suppressed. Id.\nOur Supreme Court concluded that the district court ruling did not constitute a determination of the facts in the case, rather \u201cit was purely and simply a ruling on the legality of [the] defendant\u2019s arrest and the consequent admissibility vel non of the prosecution\u2019s evidence.\u201d Id. at 739, 790 P.2d at 1020. As such, our Supreme Court held that double jeopardy did not prohibit the retrial, even though the dismissal was ordered after jeopardy had attached. Id. at 744, 790 P.2d at 1025; see Lizzol, 2007-NMSC-024, \u00b6 21 (modifying Tapia\u2019s holding \u201cthat the defendant was not acquitted in the trial court because the court\u2019s ruling was based on an interpretation of a statute and was unrelated to a factual finding of guilt or innocence\u201d).\nOn the other hand, our Supreme Court concluded that retrial was barred by double jeopardy in Lizzol, because the trial judge did make a factual determination concerning the defendant\u2019s guilt. Id. \u00b6 24. In Lizzol, the defendant was charged with DWI, and trial was before the metropolitan court judge. Id. \u00b6\u00b6 2-3. The arresting officer testified about the defendant\u2019s driving behavior, the defendant\u2019s performance on field sobriety tests, the defendant\u2019s admission that he had consumed alcohol, and a breath alcohol test (BAT) he gave to the defendant. Id. When the state attempted to introduce the BAT card into evidence with the test result, the defendant objected on grounds that the arresting officer\u2019s testimony was insufficient to establish a foundation for its admission into evidence. Id. \u00b6\u00b6 3-4. The metropolitan court judge was concerned about whether case law required testimony from someone who was more familiar than the arresting officer about the certification process of the breath alcohol machine in order for its results to be admissible into evidence. Id. \u00b6 4.\nThe prosecutor requested a final order be entered that the arresting officer was not qualified to verify the machine\u2019s certification, stating that the state would then appeal. Id. The metropolitan court judge responded:\nYeah, because I\u2019d sure like to find the answer to that. And I\u2019m not saying I necessarily believe it one way or another. I\u2019m just saying right now, it\u2019s too close to call. And if it\u2019s going to be that way, I\u2019m going to find reasonable doubt in all of this stuff.\nSo I\u2019ll go ahead and find that \u2014 that the officer in this case was not the proper person to be appropriately \u2014 the appropriately qualified witness by certification. And as such, I\u2019ll suppress the breath test.\nId. (internal quotation marks omitted). The metropolitan court judge added: \u201cI\u2019ll get a final order out. As such, I\u2019m going to find that I had reasonable doubt in the case.\u201d Id. (internal quotation marks omitted). After ensuring that the state was resting its case, the metropolitan court judge continued: \u201cSo I find that I have reasonable doubt based on that. And as such, would find the [djefendant not guilty at this point, and then we\u2019ll just leave it as such.\u201d Id. (internal quotation marks and citation omitted). The written order subsequently entered stated:\nBY THE ORDER OF THIS COURT: The breath card is suppressed because the officer is found not to be \u201cA qualified individual\u201d to testify to the certification of the breath machine under [case law], the case is therefore dismissed.\nId. The state appealed to the district court. Id. \u00b6 5. The district court concluded that the metropolitan court judge erred in not admitting the BAT card and remanded the case to the metropolitan court for trial. Id.\nThe defendant then appealed to this Court, asserting that double jeopardy prohibited the state\u2019s appeal to the district court. Id. Concluding that Tapia allowed the state to appeal a trial court\u2019s exclusion of evidence, a panel of this Court held that double jeopardy did not bar the state\u2019s appeal to the district court. Id. On certiorari, our Supreme Court reversed. Id. \u00b6 6.\nConsistent with the established precedent, our Supreme Court said that determining whether the metropolitan court ruling constituted an acquittal did not hinge on the written or oral words used by the metropolitan court judge. Id.\\l. \u201cInstead, whether a defendant was acquitted depends on whether the trial court\u2019s ruling, however labeled, correctly or incorrectly resolved some or all of the factual elements of the crime.\u201d Id. Looking to the metropolitan court judge\u2019s oral ruling, our Supreme Court concluded:\nWhen the [metropolitan court] judge decided that the [sjtate lacked foundation to admit the BAT card into evidence, he exercised his discretion and made an evidentiary ruling. Absent the BAT card, the [metropolitan court] judge concluded that the [sjtate lacked evidence sufficient to convict [the defendant]. Regardless of whether the evidentiary ruling was correct, the [metropolitan court] judge, based on that ruling, made a factual finding that the [s]tate could not prove its case. Even if the final written order can be construed as something other than a judgment of acquittal, and notwithstanding the [metropolitan court] judge\u2019s clear indication that he wished the issue to be appealed, [the defendant] was acquitted for purposes of double jeopardy.\nId. \u00b6 24 (internal quotation marks omitted). Thus, our Supreme Court concluded, the state\u2019s appeal to the district court was barred by double jeopardy. Id. \u00b6 29.\nMarquez provides us with additional guidance. In Marquez, the defendant was convicted of careless driving and DWI in the municipal court, and he appealed to the district court for a trial de novo. 2012-NMSC-031, \u00b6 4. In the district court, the arresting officer testified about the defendant\u2019s driving, his slurry speech, the odor of intoxicating liquor emanating from his breath, his red and bloodshot eyes, his performance on field sobriety tests, and the results of a blood test. Id. \u00b6\u00b6 5-7. After a three-month continuance, defense counsel commenced cross-examination, but stopped his questioning after the officer said he was not feeling well and could not remember his prior direct testimony. Id. \u00b6 8. W ithout calling any other witnesses, the city rested. Id.\nThe defendant then asked the district court judge to review a video recording of the entire stop and arrest made by a video camera in the officer\u2019s patrol car that had been admitted into evidence during the arresting officer\u2019s direct testimony. Id. \u00b6 9. After the district court judge did so, the defendant moved for a directed verdict on the DWI charge on grounds that he was unable to cross-examine the arresting officer and that the video contradicted the arresting officer\u2019s testimony about the defendant\u2019s driving, speech, and behavior. Id. The district court judge reviewed the video and concluded it contradicted the arresting officer\u2019s testimony in several material ways, and that based on the video, the arresting officer lacked reasonable suspicion to expand the traffic stop into a DWI investigation. Id. \u00b6 10. Thus, the district court judge sua sponte ruled that he would suppress all evidence from the DWI investigation and enter an order dismissing the DWI charge, while upholding the careless driving charge. Id. \u00b6 11. The written order stated that having heard testimony, and taken evidence, the court had determined that the arresting officer did not have reasonable suspicion to expand the scope of the traffic stop into a DWI investigation, and on that basis all evidence of DWI developed as a result of the investigation following the traffic stop was suppressed, \u201cand the charge of DWI is . . . dismissed with prejudice.\u201d Id. (alteration and internal quotation marks omitted). The written order did not explicitly rule on, or make reference to, the defendant\u2019s motion for a directed verdict. Id.\nThe city appealed the district court order to our Supreme Court. Id. \u00b6 1. NMSA 1978, \u00a7 35-15-11 (1959) (stating that a municipality may appeal to the Supreme Court from any final decision of the district court on appeal from the municipal court). Our Supreme Court concluded that under Lizzol, the district court action constituted an acquittal. Marquez, 2012-NMSC-031, \u00b6\u00b6 12-18. Specifically, our Supreme Court determined that \u201cthe district court\u2019s evidentiary ruling here, although not styled as an order of acquittal, nonetheless functioned as an acquittal\u201d just as the order in Lizzol did, because \u201cby making the suppression ruling after the [c]ity rested its case and simultaneously dismissing the DWI charge, the district court effectively determined that the [c]ity lacked sufficient evidence to meet its burden of proof.\u201d Id. \u00b6 16. Further, our Supreme Court specifically held that Tapia did not apply:\nLike the factual finding in Lizzol and unlike the jurisdictional determination in Tapia, the district court in the present appeal based its order of dismissal on an evidentiary ruling that directly related to [the defendant\u2019s] guilt or innocence. That is because in suppressing the evidence resulting from the DWI investigation after the [c]ity had rested its case and dismissing the DWI charge, the district court here implicitly held the evidence to be insufficient to support [the defendant\u2019s] conviction on the DWI charge.\nId. \u00b6 18. Therefore, double jeopardy prohibited the city from retrying the defendant on the DWI charge, and the city\u2019s appeal was dismissed. Id. \u00b6 12.\nThe facts of this case are undisputed and uncontradicted, and they bring us to the inescapable conclusion that Judge Naranjo resolved factual issues on elements of the crimes in Defendant\u2019s favor. Sergeant Trujillo was the State\u2019s first witness at the magistrate court trial, and with the commencement of his testimony, jeopardy attached. State v. Nunez, 2000-NMSC-013, \u00b6 28, 129 N.M. 63, 2 P.3d 264 (stating that in a bench trial, \u201cjeopardy attaches when the court begins to hear at least some evidence on behalf of the state\u201d). After Sergeant Trujillo completed his testimony, Defendant asserted that the second criminal complaint did not comply with Rule 6-506A(C), and for a sanction, asked that Sergeant Trujillo\u2019s testimony be suppressed. Judge Naranjo granted the motion. Once Sergeant Trujillo\u2019s testimony was suppressed, Defendant made a motion for a directed verdict. A motion for a directed verdict challenges the sufficiency of the State\u2019s evidence to prove the crime charged. See generally State v. Armijo, 1997-NMCA-080, \u00b6 16, 123 N.M. 690, 944 P.2d 919 (\u201cA motion for a directed verdict challenges the sufficiency of the evidence^]\u201d); State v. Dominguez, 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct. App. 1993) (\u201cThe question presented by a directed verdict motion is whether there was substantial evidence to support the charge.\u201d). With Sergeant Trujillo\u2019s testimony suppressed, Judge Naranjo determined that the evidence was insufficient to prove either charge against Defendant, and he dismissed the case with prejudice. While additional witnesses were waiting to testify, the State failed to advise Judge Naranjo what evidence they were prepared to offer. In addition, since the State failed to make an offer of proof on the record, we would have to speculate what their testimony would have been.\nWe have discussed Tapia, Lizzol, and Marquez in great detail. Our purpose was to make it clear that Tapia is not applicable and that underLz'zzo/andMarquez, Defendant was acquitted in the magistrate court. We hold that the magistrate court\u2019s dismissal constituted an acquittal and, therefore, the State was barred from appealing to the district court on the basis that the magistrate court\u2019s suppression order was erroneous. Because there was an acquittal, we may not address whether or not Judge Naranjo\u2019s ruling suppressing Sergeant Trujillo\u2019s testimony was erroneous. Marquez, 2012-NMSC-031, \u00b6 15 (stating that when there is an acquittal, the state may not appeal from the evidentiary ruling on which the acquittal is based); Lizzol, 2007-NMSC-024, \u00b6 7 (stating that a verdict of acquittal cannot be reviewed \u201ceven if it was based on an \u2018egregiously erroneous foundation\u2019 \u201d (quoting Fong Foo v. United States, 369 U.S. 141, 143 (1962) (per curiam))); Tapia, 109 N.M. at 741, 790 P.2d at 1022 (stating that once a defendant is acquitted, whether there has been trial error or another defect in the process leading to the acquittal is not subject to review). The efficacy of an acquittal rendered by the fact finder in a criminal case is inviolable.\nIII. CONCLUSION\nThe order of the district court denying Defendant\u2019s motion to dismiss is reversed, and the case is remanded to the district court for entry of an order dismissing the State\u2019s appeal.\n{25} IT IS SO ORDERED.\nMICHAEL E. VIGIL, Judge\nWE CONCUR:\nRODERICK T. KENNEDY, Chief Judge\nJONATHAN B. SUTIN, Judge\nRule 6-506A(C) directs:\n\u201cIf a citation or complaint is dismissed without prejudice and the charges are later refiled, the refiled complaint shall be clearly captioned \u2018Refiled Complaint\u2019 and shall include the following:\n(1) the court in which the original charges were filed;\n(2) the case file number of the dismissed charges;\n(3) the name of the assigned judge at the time the charges were dismissed; and\n(4) the reason the charges were dismissed.\u201d\nIn State v. Martinez, 2007-NMSC-025, 141 N.M. 713, 160 P.3d 894, filed the same day as Lizzol, our Supreme Court held that before a BAT card is admitted into evidence, the state must make a threshold showing that the machine was certified by the Scientific Laboratory Division (SLD) and that the SLD certification was current at the time the test was taken. Id. \u00b6 12. The trial court must be satisfied that this foundation requirement was met by a preponderence of the evidence, and in making its decision, the trial court is not bound by the rules of evidence except those concerning privileges. Id. \u00b6 21.\nUnlike the magistrate court, the metropolitan court is a court of record in actions involving DWI and domestic violence. NMSA 1978, \u00a7 34-8A-6(C) (1993) (\u201cThe metropolitan court is a court of record for criminal actions involving driving while under the influence of intoxicating liquors or drugs or involving domestic violence.\u201d). Thus, the actions taken by the metropolitan court judge and the reasons were contained in the record on appeal before the district court and the Supreme Court.\nThe appeal was pursuant to Section 34-8A-6(C), which provides inpertinentpart, \u201cAny party aggrieved by a judgment rendered by the metropolitan court in a criminal action involving driving while under the influence of intoxicating liquors or drugs or involving domestic violence may appeal to the district court of the county in which the metropolitan court is located}.]\u201d", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "Gary K. King, Attorney General William Lazar, Assistant Attorney General Santa Fe, NM for Appellee", "Ben A. Ortega Albuquerque, NM for Appellant", "Dan Cron Law Firm, P.C. Leon F. Howard III Santa Fe, NM for Amicus Curiae ACLU of N.M." ], "corrections": "", "head_matter": "Certiorari Granted, May 24, 2013,\nNo. 34,120\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-060\nFiling Date: March 25, 2013\nDocket No. 31,442\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. ABRAHAM BACA, Defendant-Appellant.\nGary K. King, Attorney General William Lazar, Assistant Attorney General Santa Fe, NM for Appellee\nBen A. Ortega Albuquerque, NM for Appellant\nDan Cron Law Firm, P.C. Leon F. Howard III Santa Fe, NM for Amicus Curiae ACLU of N.M." }, "file_name": "0130-01", "first_page_order": 146, "last_page_order": 154 }