{ "id": 4246402, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Carl A. BOWDEN, Defendant-Appellant", "name_abbreviation": "State v. Bowden", "decision_date": "2010-05-06", "docket_number": "No. 29,291; No. 32,424", "first_page": "850", "last_page": "853", "citations": [ { "type": "official", "cite": "148 N.M. 850" }, { "type": "parallel", "cite": "2010-NMCA-070" }, { "type": "parallel", "cite": "242 P.3d 417" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2009-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244910 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0281-01" ] }, { "cite": "214 P.3d 793", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "146 N.M. 728", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2009-NMCERT-005", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2008-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3783310 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0359-01" ] }, { "cite": "2006-NMCA-082", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670718 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0049-01" ] }, { "cite": "95 N.M. 97", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575621 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "99" }, { "page": "544" }, { "page": "99" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0097-01" ] }, { "cite": "2009-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243664 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0428-01" ] }, { "cite": "2008-NMCA-131", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242168 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 34" }, { "page": "\u00b6 34" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0040-01" ] }, { "cite": "2002-NMCA-082", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260682 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0485-01" ] }, { "cite": "1998-NMCA-160", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827334 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 5, 9" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0125-01" ] }, { "cite": "122 N.M. 49", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322244 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0049-01" ] }, { "cite": "1996-NMCA-068", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "2010-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246502 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 1, 18" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0487-01" ] }, { "cite": "2004-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224659 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 4" }, { "page": "\u00b6\u00b6 9, 11-13, 21" }, { "page": "\u00b6\u00b6 10-12" }, { "page": "\u00b6\u00b6 9, 13" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0561-01" ] } ], "analysis": { "cardinality": 618, "char_count": 12324, "ocr_confidence": 0.699, "pagerank": { "raw": 5.67683038770863e-08, "percentile": 0.3533445386198191 }, "sha256": "4db416c128013ea5438587938fbc7de0680d97ae5642791ae21911d4343ffc2c", "simhash": "1:ae75ef3df8094eeb", "word_count": 2001 }, "last_updated": "2023-07-14T17:58:33.542282+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE and LINDA M. VANZI, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Carl A. BOWDEN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} Defendant Carl A. Bowden appeals from his convictions of driving under the influence of intoxicating liquor and/or drugs (fourth offense) and other motor vehicle violations. Although the district court\u2019s judgment and sentence states that Defendant was convicted under NMSA 1978, Section 66-8-102(A) (2008), Defendant was actually convicted by the jury under Section 66-8-102(C)(1), based on the theory that Defendant drove with an alcohol concentration of eight one hundredths or more. Defendant contends on appeal that the district court erred (1) in admitting the results of his blood test in violation of Regulation 7.33.2.12(A)(2) NMAC, a regulation of the Scientific Laboratory Division of the Department of Health (the SLD regulation) that requires blood to be drawn within two hours of arrest; and (2) by allowing testimony that Defendant did not satisfactorily complete field sobriety tests when the tests were invalid because of Defendant\u2019s gout. We conclude, as to the first issue, that NMSA 1978, Section 66-8-110(E) (2007), permitting tests administered under the Implied Consent Act, NMSA 1978, \u00a7\u00a7 66-8-105 to -112 (1978, as amended through 2007), more than three hours after a person was driving a vehicle, supercedes the regulation, and as to the second issue, that the district court did not abuse its discretion in allowing the testimony. We therefore affirm.\nBACKGROUND\n{2} Officer Lawrence Chavez of the Village of Ruidoso police department stopped Defendant for driving with a non-operational tail lamp. When Officer Chavez approached Defendant, he detected an overwhelming odor of alcohol and requested Defendant to submit to field sobriety tests. He asked if Defendant had any physical injuries or medical conditions that would impair Defendant\u2019s performance on the field sobriety tests, and Defendant stated that he had gout in his feet. Officer Chavez conducted the field sobriety tests, on which Officer Chavez testified Defendant performed poorly.\n{3} Officer Chavez arrested Defendant and read him the Implied Consent Act. Defendant refused to submit to breath testing and was transported to the Ruidoso police department. Officer Chavez obtained a search warrant from the magistrate judge to obtain a blood draw, and two blood samples obtained from Defendant indicated that his blood alcohol content was .21 grams per 100 milliliters of blood.\nCONFLICT BETWEEN THE SLD REGULATION AND SECTION 66-8-110(E)\n{4} Defendant was arrested at approximately 11:30 p.m. on April 28, 2008, and his blood was drawn at 2:10 a.m. on April 29, 2008. Defendant argues on appeal, as he did to the district court, that the SLD regulation, which concerns the collection of blood samples, precluded the district court from receiving in evidence blood sample tests that were made more than two hours after arrest. The SLD regulation states that \u201cinitial blood samples should be collected within two hours of arrest.\u201d 7.33.2.12(A)(2) NMAC.\n{5} New Mexico\u2019s driving under the influence of intoxicating liquor and/or drugs (DWI) laws permit the receipt in evidence of the results of tests \u201cperformed pursuant to the Implied Consent Act.\u201d State v. Dedman, 2004-NMSC-037, \u00b6 4, 136 N.M. 561, 102 P.3d 628, overruled on other grounds by State v. Bullcoming, 2010-NMSC-007, \u00b6\u00b6 1, 18, 147 N.M. 487, 226 P.3d 1. Test results have particular significance when the charges are, as here, under Section 66-8-102(C)(l), which criminalizes driving a vehicle with \u201can alcohol concentration of eight one hundredths or more in the person\u2019s blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle.\u201d See City of Lovington v. Tyson, 1996-NMCA-068, \u00b6 9, 122 N.M. 49, 920 P.2d 119 (stating that \u201c[a]ny reading or result [from an intoxilyzer machine or a blood test] higher than .08, or eight hundredths, will result in a violation of Section 66-8-102(C)\u201d).\n{6} Tests performed under the Implied Consent Act must be approved by the SLD. Section 66-8-107. In Dedman, our Supreme Court held that results of tests performed under the Implied Consent Act may meet foundational requirements for receipt in evidence even though they do not fully comply with SLD regulations unless the regulation is intended to ensure testing accuracy. 2004-NMSC-037, \u00b6\u00b6 9, 11-13, 21, 136 N.M. 561, 102 P.3d 628. It determined that the SLD did not adopt the regulation at issue in that case calling for the use of the venipuncture method to extract blood to ensure the accuracy of blood test results but rather because that method was the easiest to administer and the least hazardous and painful. Id. \u00b6\u00b6 19-20.\n{7} The Court in Dedman followed the reasoning of State v. Gardner, 1998-NMCA-160, 126 N.M. 125, 967 P.2d 465, and State v. Onsurez, 2002-NMCA-082, 132 N.M. 485, 51 P.3d 528, in which this Court held that SLD regulations concerning the procedure for administering breath alcohol tests pertained to the accuracy of the tests. Dedman, 2004-NMSC-037, \u00b6\u00b6 10-12, 136 N.M. 561, 102 P.3d 628. In Gardner, the regulation required that the administering officer observe the person to be tested for twenty minutes before collecting a breath sample. 1998-NMCA-160, \u00b6\u00b6 5, 9, 126 N.M. 125, 967 P.2d 465. In Onsurez, the regulation required that the breathalyzer machine be certified annually with annual inspection, maintenance of adequate records, and weekly calibration checks. 2002-NMCA-082, \u00b6 13, 132 N.M. 485, 51 P.3d 528. The SLD regulation in this case is more like the regulations in Gardner and Onsurez than that in Dedman. By limiting the time period for the testing after the arrest of a suspect, the regulation addresses the accuracy of the testing. Thus, on the basis of the SLD regulation, the test results in this case would not meet the foundational requirements to be received in evidence because the test was not performed within the two-hour period stated in the SLD regulation.\n{8} However, we do not view the SLD regulation in isolation. In 2007, the Legislature amended the DWI laws to add Section 66-8-110(E), which reads:\nIf the test performed pursuant to the Implied Consent Act is administered more than three hours after the person was driving a vehicle, the test result may be introduced as evidence of the alcohol concentration in the person\u2019s blood or breath at the time of the test and the trier of fact shall determine what weight to give the test result for the purpose of determining a violation of Section 66-8-102.\n{9} The district court admitted the blood test results, concluding that Section 66 \u2014 8\u2014110(E) superceded the SLD regulation. Defendant argues that the district court abused its discretion in admitting the test results because it misinterpreted the statute and the SLD regulation. Although we review a district court\u2019s evidentiary ruling for abuse of discretion, a court may abuse its discretion if it misapplies the law. State v. Pacheco, 2008-NMCA-131, \u00b6 34, 145 N.M. 40, 193 P.3d 587. We review the court\u2019s application of the law under a de novo standard. State v. Sewell, 2009-NMSC-033, \u00b6 12, 146 N.M. 428, 211 P.3d 885. We thus analyze de novo the district court\u2019s interpretation of the statute and the regulation.\n{10} In the event of a conflict or inconsistency between a statute and a regulation, we interpret the statute to take precedence. Jones v. Employment Servs. Div., 95 N.M. 97, 99, 619 P.2d 542, 544 (1980); Pickett Ranch, LLC v. Curry, 2006-NMCA-082, \u00b6 10, 140 N.M. 49, 139 P.3d 209. In this case, we perceive a conflict or inconsistency between the statute and the SLD regulation both in approach and result. Both the statute and the SLD regulation address the issue of the accuracy or reliability of results of tests that are administered after time elapses between a person\u2019s driving or arrest and the test. The SLD regulation, by requiring the blood sample to be collected within two hours of arrest, takes the approach that the results of tests administered after a two-hour delay from arrest may not be accurate. On the basis of Dedman, such delayed test results would not be allowed as evidence. 2004-NMSC-037, \u00b6\u00b6 9, 13, 136 N.M. 561, 102 P.3d 628.\n{11} Section 66-8-110(E) addresses the issue of delay in another way. It permits test results to be received in evidence regardless of the time period in which the test was administered, but rather than allowing results of tests taken more than three hours after the person was driving to create a presumption of a violation of Section 66-8-102 based on a particular blood or breath alcohol concentration level, it gives the trier of fact the discretion to determine whether there is a violation. Section 66\u20148\u2014110(E); see also State v. Day, 2008-NMSC-007, \u00b6 27, 143 N.M. 359, 176 P.3d 1091 (discussing the newly enacted legislation that \u201cspecified an outer time limit for a [Blood Alcohol Content (BAC) ] test taken after driving to prove a defendant\u2019s BAC at the time of driving, as required by [the] per se DWI statute\u201d), cert. quashed, 2009-NMCERT-005, 146 N.M. 728, 214 P.3d 793. This difference in approach gives rise to a difference in result. Whereas the statute would allow the test results in this case to be introduced in evidence without limitation, the SLD regulation would exclude them.\n{12} Defendant argues that the statute and regulation are consistent because the statute \u201cnegates the per se presumption\u201d and the SLD regulation \u201cestablishes the scientific basis for a reliable blood test.\u201d While we agree with Defendant\u2019s statements, they disregard the consequences of the differing approaches discussed above. By approaching the issue in a different manner, the statute and the SLD regulation reach different results and are therefore inconsistent. Moreover, the Legislature has made a substantive deviation from the SLD regulation by selecting a three-hour time period after driving as opposed to the two-hour period after arrest in the SLD regulations. Due to this legislative choice, as demonstrated by this case, there can be inconsistent results. We thus apply the general rule that a statute prevails over an inconsistent regulation. Jones, 95 N.M. at 99, 619 P.2d at 544; Pickett Ranch, LLC, 2006-NMCA-082, \u00b6 10, 140 N.M. 49, 139 P.3d 209.\nTESTIMONY REGARDING FIELD SOBRIETY TESTS\n{13} Defendant argues that the district court erred in allowing Officer Chavez to testify concerning Defendant\u2019s performance on the field sobriety tests that Officer Chavez administered after stopping Defendant. Because Defendant contests the district court\u2019s evidentiary ruling, we review this issue for abuse of the district court\u2019s discretion. Pacheco, 2008-NMCA-131, \u00b6 34, 145 N.M. 40, 193 P.3d 587. The district court does not abuse its discretion unless its ruling \u201cis clearly against the logic and effect of the facts and circumstances of the case.\u201d State v. Riordan, 2009-NMSC-022, \u00b6 6, 146 N.M. 281, 209 P.3d 773 (internal quotation marks and citation omitted).\n{14} Officer Chavez testified that he asked Defendant if he would perform field sobriety tests and if Defendant had any physical injury or medical condition that would impair his ability to perform the tests. Defendant stated that he had gout in his feet, but he did not tell Officer Chavez that he could not perform the tests. At trial, Defendant testified that he suffered from gout and that his feet were sore from playing golf earlier in the day.\n{15} Even though Officer Chavez admitted that people with foot problems have difficulty performing the field sobriety tests, evidence was inconclusive as to the potential effect of Defendant\u2019s gout on his ability to perform the tests. The district court acted within its discretion in admitting the testimony and permitting the jury to determine its probative value.\nCONCLUSION\n{16} We affirm Defendant\u2019s convictions.\n{17} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and LINDA M. VANZI, Judges.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Farhan Khan, Assistant Attorney General, Santa Fe, NM, for Appellee.", "Robert E. Tangora, L.L.C. Robert E. Tangora, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2010-NMCA-070\n242 P.3d 417\nSTATE of New Mexico, Plaintiff-Appellee, v. Carl A. BOWDEN, Defendant-Appellant.\nNo. 29,291.\nCourt of Appeals of New Mexico.\nMay 6, 2010.\nCertiorari Denied, June 25, 2010,\nNo. 32,424.\nGary K. King, Attorney General, Farhan Khan, Assistant Attorney General, Santa Fe, NM, for Appellee.\nRobert E. Tangora, L.L.C. Robert E. Tangora, Santa Fe, NM, for Appellant." }, "file_name": "0850-01", "first_page_order": 884, "last_page_order": 887 }