{ "id": 4247132, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Philbert NEZ, Defendant-Appellant", "name_abbreviation": "State v. Nez", "decision_date": "2010-07-20", "docket_number": "No. 26,811; Docket No. 32,559", "first_page": "914", "last_page": "920", "citations": [ { "type": "official", "cite": "148 N.M. 914" }, { "type": "parallel", "cite": "242 P.3d 481" }, { "type": "parallel", "cite": "2010-NMCA-092" } ], "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": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 3, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "129 S.Ct. 2527", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 3657952 ], "weight": 9, "year": 2009, "pin_cites": [ { "page": "2532" }, { "page": "2532" }, { "page": "2531-32" }, { "page": "2532", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/us/557/0305-01" ] }, { "cite": "2009 WL 6669512", "category": "reporters:specialty_west", "reporter": "WL", "year": 2009, "opinion_index": 0 }, { "cite": "2004-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224659 ], "weight": 24, "pin_cites": [ { "page": "\u00b6 1" }, { "page": "\u00b6 30" }, { "page": "\u00b6\u00b6 4-5" }, { "page": "\u00b6 21" }, { "page": "\u00b6\u00b6 24, 30, 45" }, { "page": "\u00b6\u00b6 1, 21, 30, 45" }, { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0561-01" ] }, { "cite": "2010-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246355 ], "weight": 12, "pin_cites": [ { "page": "\u00b6\u00b6 4, 6-9" }, { "page": "\u00b6\u00b6 23-33" }, { "page": "\u00b6\u00b6 23-25" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0474-01" ] }, { "cite": "2010-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246502 ], "weight": 48, "pin_cites": [ { "page": "\u00b6\u00b6 1, 13-16, 18" }, { "page": "\u00b6\u00b6 1, 19-20" }, { "page": "\u00b6\u00b6 23-25" }, { "page": "\u00b6\u00b6 1, 16" }, { "page": "\u00b6\u00b6 13-20" }, { "page": "\u00b6 13" }, { "page": "\u00b6 13" }, { "page": "\u00b6 21" }, { "page": "\u00b6 21" }, { "page": "\u00b6\u00b6 12, 16, 18" }, { "page": "\u00b6 21" }, { "page": "\u00b6 22" }, { "page": "\u00b6\u00b6 1, 16, 18" }, { "page": "\u00b6\u00b6 1, 12, 16, 18" }, { "page": "\u00b6\u00b6 1, 19" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0487-01" ] } ], "analysis": { "cardinality": 818, "char_count": 22180, "ocr_confidence": 0.673, "pagerank": { "raw": 5.67683038770863e-08, "percentile": 0.3533447316812679 }, "sha256": "965ba6c63c2ddde25d417467d4ffae8a6554deb9880e5637ff7fa0aaae9163aa", "simhash": "1:b3af3f2cb61bbc6b", "word_count": 3553 }, "last_updated": "2023-07-14T17:58:33.542282+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: CYNTHIA A. FRY, Chief Judge and JAMES J. WECHSLER, Judge." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Philbert NEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} This case comes to us on remand from our Supreme Court in State v. Nez, No. 31,703 for further consideration in light of State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1, and State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280. See Order of Remand and Mandate, State v. Nez, No. 31,703, entered March 2, 2010. We note at the outset that Bullcoming overruled one aspect of the decision in State v. Dedman, 2004-NMSC-037, 136 N.M. 561, 102 P.3d 628, as we discuss in more detail later in this opinion. In this Court\u2019s memorandum opinion filed in the present case on April 20, 2009, which was the subject of the certiorari proceeding in the Supreme Court from which the foregoing remand emanated, we upheld the admission of a blood-aleoholcontent (BAC) report based on the precedent set in Dedman. State v. Nez, No. 26,811, slip op. at 23-27, 2009 WL 6669512 (Ct.App. Apr. 20, 2009). We address on remand whether Bullcoming or Aragon changes our conclusion in the memorandum opinion that the district court did not err by admitting the report into evidence.\n{2} To set the stage, we first discuss Dedman, and we then discuss Defendant\u2019s arguments on appeal in the present case and the decision contained in our memorandum opinion. Following that, we discuss Bullcoming (and only touch on Aragon), which necessarily includes discussion of Melendez-Diaz v. Massachusetts, \u2014 U.S. \u2014, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). We then return to the present case, focusing on Defendant\u2019s arguments and the evidence specifically on the issue at hand, namely whether the district court abused its discretion in admitting the BAC report where, Defendant argued, the State failed to present non-hearsay testimony sufficient to establish the method used to draw his blood and the qualifications of the blood drawer. We conclude our discussion with our holding that neither Bullcoming nor Aragon overruled Dedman on this particular issue and that, under Dedman, as well as under Bullcoming, under the facts in the present case the report was properly admitted into evidence. We also discuss Defendant\u2019s argument that his Sixth Amendment confrontation right was denied because he did not have an opportunity to cross-examine the person who drew his blood. We conclude that Defendant\u2019s confrontation right was not violated by the absence of the blood drawer from trial.\nDedman\n{3} In Dedman, the prosecution contended that a veni-puncture method used to draw a blood sample ultimately tested for BAC \u201cdid not affect the admissibility of the blood alcohol report\u201d and also that the unavailability of the nurse who drew the blood sample to testify at trial did not require the exclusion of the report on Sixth Amendment confrontation grounds. 2004-NMSC-037, \u00b6 1, 136 N.M. 561, 102 P.3d 628. The Court determined that the failure to comply with a regulation setting out the veni-puncture requirement did not render the test results wholly unreliable and did not justify exclusion of the report. Id. \u00b6 21. The Court also determined that the report qualified as a public record, that the report was prepared in a non-adversarial setting and was not investigative or prosecutorial, and that the report was admissible under the public record exception to the hearsay rule. Id. \u00b6 24. Noting that the right of confrontation required \u201can independent inquiry that is not satisfied by a determination that evidence is admissible under a hearsay exception,\u201d id. \u00b625, the Court explored whether the defendant\u2019s confrontation right was violated. Id. \u00b6\u00b6 26-36. The Court held that the report was not testimonial evidence under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Dedman, 2004-NMSC-037, \u00b6 30, 136 N.M. 561, 102 P.3d 628. The Court also held that the testimony of the toxicologist who prepared the report and of the officer in whose presence the blood was drawn \u201cprovided sufficient foundation for [the] admission of the report and that [the] lack of opportunity to cross-examine the nurse who drew the sample did not violate [the defendant\u2019s confrontation rights.\u201d Id. \u00b6\u00b6 1, 30, 45.\nDefendant\u2019s Arguments on Appeal and Our Memorandum Opinion\n{4} In the present case, Defendant argued on appeal that the district court erred in admitting a report that contained the results of a test of a sample of his blood in that the State failed to show that the blood was properly drawn under the Implied Consent Act and Department of Health regulations by a qualified person. Nez, No. 26,811, slip op. at 23. Defendant further argued that the report constituted impermissible hearsay that violated the Confrontation Clause because the drawer of the blood was not present at trial and Defendant did not have an opportunity to cross-examine that person about her qualifications and the manner in which the blood sample was taken. Id. We noted in our memorandum opinion that, in Dedman, our Supreme Court held that the absence of the blood drawer from trial and the lack of testimony from the blood drawer as to the method in which he or she drew the blood did not affect the admissibility of the report. Nez, No. 26,811, slip op. at 24; see Dedman, 2004-NMSC-037, \u00b6\u00b6 4-5, 136 N.M. 561, 102 P.3d 628. We also noted that our Supreme Court had implicitly rejected an argument such as Defendant is making in the present case, that Defendant\u2019s challenges were controlled by Dedman, and that we were bound to follow Dedman. Nez, No. 26,811, slip op. at 24; see Dedman, 2004-NMSC-037, \u00b6 21, 136 N.M. 561, 102 P.3d 628. We further noted that in Dedman the Court held that the report was admissible under the public records exception to the hearsay prohibition and did not constitute testimonial evidence, and we concluded, \u201c[a]s did the Dedman Court, ... that Defendant\u2019s right of confrontation provided no basis for exclusion of the ... report.\u201d Nez, No. 26,811, slip op. at 27 (internal quotation marks and citation omitted); see Dedman, 2004-NMSC-037, \u00b6\u00b6 24, 30, 45, 136 N.M. 561, 102 P.3d 628.\nBullcoming and Melendez-Diaz\n{5} Based on Melendez-Diaz, in Bullcoming and Aragon our Supreme Court held that crime laboratory reports of blood-alcohol test results {Bullcoming) and chemical forensic reports of a substance determined to be methamphetamine {Aragon) were testimonial for the purposes of the Confrontation Clause. Bullcoming, 2010-NMSC-007, \u00b6\u00b6 1, 13-16, 18, 147 N.M. 487, 226 P.3d 1; Aragon, 2010-NMSC-008, \u00b6\u00b6 4, 6-9, 147 N.M. 474, 225 P.3d 1280. The question at hand was then whether a defendant\u2019s right to confrontation was violated when the prosecution admitted the reports through the testimony of an analyst who did not personally perform the testing or analysis required and performed to obtain the test results in the reports. See Bullcoming, 2010-NMSC-007, \u00b6\u00b6 1, 19-20, 147 N.M. 487, 226 P.3d 1; Aragon, 2010-NMSC-008, \u00b6\u00b6 23-33, 147 N.M. 474, 225 P.3d 1280. The two cases indicate that, under certain circumstances, an analyst who is not the testing analyst but who testifies under Rule 11-703 NMRA based upon the underlying data in a report and not on opinion or analysis of another analyst may testify in order to admit the report. See Bullcoming, 2010-NMSC-007, \u00b6\u00b6 23-25, 147 N.M. 487, 226 P.3d 1; Aragon, 2010-NMSC-008, \u00b6\u00b6 23-25, 147 N.M. 474, 225 P.3d 1280.\n{6} For our purposes on remand, only Bullcoming, which overruled Dedman, is pertinent. See Bullcoming, 2010-NMSC-007, \u00b6\u00b6 1, 16, 147 N.M. 487, 226 P.3d 1. In Bullcoming, the prosecution introduced a blood-alcohol report that contained chromatograph-machine-generated results of the defendant\u2019s BAC, and it also contained chain of custody information in part identifying the person who drew the blood and the date, time, and place of the blood draw. Id. \u00b6\u00b6 1, 6, 8, 21. The report was admitted through the testimony of an analyst of the State Laboratory Division (SLD) who was not the testing analyst. Id. \u00b6\u00b6 1, 6-9. The nurse who drew the blood and the officer who observed the blood draw and also prepared and sent the blood kit to SLD testified at trial and were available for cross-examination. Id. \u00b6 8. The report was admitted in evidence pursuant to the business-records exception to the hearsay rule. Id. \u00b6 9; see Rule 11-803(F), (H) NMRA. In analyzing the issue of the admissibility of the report, our Supreme Court in Bullcoming addressed Melendez-Diaz, which had been decided after Dedman and before Bullcoming. Bullcoming, 2010-NMSC-007, \u00b6\u00b6 13-20, 147 N.M. 487, 226 P.3d 1.\n{7} In Melendez-Diaz, the prosecution submitted sworn certificates that the Court considered to be affidavits showing the results of forensic analysis establishing a substance\u2019s composition as cocaine. 129 S.Ct. at 2532; Bullcoming, 2010-NMSC-007, \u00b6 13, 147 N.M. 487, 226 P.3d 1. The Court held the affidavits were testimonial under Crawford. Melendez-Diaz, 129 S.Ct. at 2532. Justice Scalia\u2019s opinion for the majority explained that, under Crawford, affidavits were a core class of testimonial statements subject to analysis under the Confrontation Clause, the analysts\u2019 sworn statements were affidavits, and, as such, the analyst affiants were witnesses for purposes of the Sixth Amendment and thus subject to confrontation. Melendez-Diaz, 129 S.Ct. at 2531-32; Bullcoming, 2010-NMSC-007, \u00b6 13, 147 N.M. 487, 226 P.3d 1.\n{8} Further, the Court in Melendez-Diaz stated that \u201c[a]bsent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be confronted with the analysts at trial.\u201d 129 S.Ct. at 2532 (internal quotation marks omitted). However, the Court did not extend its decision to encompass individuals who are merely involved in the chain of custody, stating, \u201cwe do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution\u2019s case.\u201d Id. at 2532 n. 1; Bullcoming, 2010-NMSC-007, \u00b6 21, 147 N.M. 487, 226 P.3d 1. The dissent in Melendez-Diaz noted and the majority agreed that the prosecution has the obligation to establish the chain of custody, but that did \u201cnot mean that everyone who laid hands on the evidence must be called.\u201d 129 S.Ct. at 2532 n. 1, 2546 (Kennedy, J., dissenting); Bullcoming, 2010-NMSC-007, \u00b6 21, 147 N.M. 487, 226 P.3d 1.\n{9} Based on Melendez-Diaz, the Court in Bullcoming held that the blood-alcohol report in the case was testimonial and overruled Dedman\u2019s holding that laboratory reports were non-testimonial. Bullcoming, 2010-NMSC-007, \u00b6\u00b6 12, 16, 18, 147 N.M. 487, 226 P.3d 1. The Court in Bullcoming nevertheless also held that the defendant\u2019s confrontation right was satisfied through cross-examination of the testifying analyst who was not the analyst who prepared the report because the report-preparing analyst had simply transcribed the results generated by the gas chromatograph machine to the report, had not exercised any independent judgment, and was nothing more than a \u201cmere scrivener.\u201d Id. \u00b6 19. The \u201ctrue accuser,\u201d the Court stated, was not the analyst who transcribed the results into the report, but rather the machine that \u201cdetected the presence of alcohol in [the defendant\u2019s blood, assessed [the djefendant\u2019s BAC, and generated a computer print-out listing its results.\u201d Id. Thus, the Court determined, \u201cthe live, in-court testimony of a separate qualified analyst [was] sufficient to fulfill a defendant\u2019s right to confrontation.\u201d Id.\n{10} Recognizing that the report also contained information regarding chain of custody, the Court in Bullcoming referred to Melendez-Diaz\u2019s footnote regarding chain of custody evidence and the confrontation right, and the Court in Bullcoming stated that Melendez-Diaz \u201cindicated that chain of custody information may not be testimonial under the Confrontation Clause.\u201d Bullcoming, 2010-NMSC-007, \u00b6 21, 147 N.M. 487, 226 P.3d 1; see Melendez-Diaz, 129 S.Ct. at 2532 n. 1. The Court did not, however, pursue the Melendez-Diaz \u201cindicated\u201d chain of custody result further. Instead, because in Bullcoming the defendant had the opportunity to cross-examine the officer who arrested him and the nurse who drew his blood, and also because the record reflected that the defendant was willing to stipulate that the nurse drew the blood properly, the Court held that \u201c[t]o the extent that [the defendant based his Confrontation Clause claim on the chain of custody information contained in [the report], it is clear that his objection was simply pro forma.\u201d 2010-NMSC-007, \u00b6 22, 147 N.M. 487, 226 P.3d 1.\nDefendant\u2019s Arguments and the Evidence\n{11} In the present case, Defendant argued on appeal that our Supreme Court\u2019s Dedman decision \u201cwas premised on an unproven assumption, nowhere mentioned in the record proper of that case, that it was in fact a nurse, or another, meeting [NMSA 1978, Section 66-8-103 (1978) ]\u2019s express requirements, who drew the defendant\u2019s blood on the occasion in question.\u201d Defendant noted that in cases prior to Dedman the Court had indulged in no such assumptions. Defendant argued that in the present case neither the officer nor the toxicologist who testified \u201cwas qualified to testify as to the manner in which the blood was drawn or to verify the accuracy with which the blood[ {drawer obtained the blood sample.\u201d He argued further that \u201c[tjhere was no testimony regarding the identity of the blood[ ]drawer that was not hearsay and absolutely no testimony regarding the person\u2019s qualifications or whether the dual purposes of safety and reliability were met.\u201d\n{12} In short, Defendant\u2019s position was that the State did not present any non-hearsay testimony sufficient to establish the method used to draw blood and the qualifications of the blood drawer and, therefore, the district court abused its discretion in admitting the report. More specifically, Defendant argued that the State failed to lay the necessary foundation to show compliance with Section 66-8-103 which reads, in part, that \u201c[o]nly a physician, licensed professional or practical nurse or laboratory technician or technologist employed by a hospital or physician shall withdraw blood from any person in the performance of a blood-alcohol test.\u201d Defendant also argued that the State did not show as required by the law and regulations that the blood samples were collected \u201cin the presence of the arresting officer or other responsible person who can authenticate the samples,\u201d and \u201cwithin two hours of arrest\u201d and not using \u201c[e]thyl alcohol ... as a skin antiseptic,\u201d and preserving the sample in \u201can SLD-approved blood collection kit [that contains] two or more sterile tubes with sufficient sodium fluoride so that the final concentration shall contain not less than 1.0 percent sodium fluoride.\u201d 7.33.2.12 NMAC (2/21/01), reprinted as amended in 7.33.2.15(A)(1), (2), (3) NMAC (4/30/10).\n{13} At trial in the present case, Sergeant Kendall, a deputy with the McKinley County, New Mexico, Sheriffs Department testified as follows. The deputy investigated the vehicle crash in which Defendant was involved. One aspect of the investigation involved Defendant\u2019s suspected intoxicated status and a possible vehicular homicide. Deputy Kendall obtained a search warrant to extract Defendant\u2019s blood. The blood was extracted at the Gallup, New Mexico, Indian Medical Center. The blood draw had to be done by a medical person. The deputy had an unused blood kit prepared for this purpose by the SLD. He also had a form that went with the blood kit titled \u201cReport of Blood Alcohol Analysis.\u201d Deputy Kendall observed Defendant\u2019s blood being drawn in the emergency room by medical personnel, namely, a nurse. He identified the completed report form, which contained his signature. The nurse also signed the report form as \u201cJolene Richardson, R.N.\u201d Deputy Kendall testified that based upon his training and experience, \u201cR.N.\u201d is the abbreviation for \u201cregistered nurse.\u201d Although he had not previously met the blood drawer, and although he did not have knowledge whether the blood drawer was licensed, Deputy Kendall testified to having no concern at all that this person may have been impersonating a nurse and observed that the nurse was appropriately dressed, had a stethoscope, and displayed from her uniform a Gallup Indian Medical Center identification tag which included her picture, name, and title. In drawing the blood, the nurse used the contents of the SLD-provided kit, including a non-alcohol based swab to clean the arm prior to the blood extraction. After the nurse inserted the needle into Defendant\u2019s vein, she attached the first SLD-provided vacuum tube to the needle that drew out a sample of Defendant\u2019s blood, handed that tube directly to Deputy Kendall, and then obtained another sample in the second SLD-provided vacuum tube, which was also handed directly to the deputy. Deputy Kendall labeled and sealed the two vials of blood and mailed the form and the kit containing the blood samples to the SLD.\nOur Conclusions\n{14} We hold that the foregoing evidence relating to the blood drawer\u2019s identity and qualification and to the manner of drawing the blood satisfied the State\u2019s foundation burden for admission of the report sufficient to withstand Defendant\u2019s objection to admission of the report based on his view that the testimony did not establish the propriety of the blood draw and the qualification of the blood drawer. See Dedman, 2004-NMSC-037, \u00b6\u00b6 1, 21, 30, 45, 136 N.M. 561, 102 P.3d 628 (holding that compliance with a particular blood-sample collection regulatory requirement was not a prerequisite to the admissibility of the blood-alcohol report and that the testimony of the toxicologist who prepared the report and of the officer in whose presence the blood was drawn provided sufficient foundation for admission of the report), overruled on other grounds by Bullcoming, 2010-NMSC-007, \u00b6\u00b6 1, 16, 18, 147 N.M. 487, 226 P.3d 1. We therefore see no basis on which to hold that the report was inadmissible unless under Bullcoming it was inadmissible on confrontation grounds. See Dedman, 2004-NMSC-037, \u00b6 25, 136 N.M. 561, 102 P.3d 628 (\u201cThe right of confrontation requires an independent inquiry that is not satisfied by a determination that evidence is admissible under a hearsay exception.\u201d), overruled on other grounds by Bullcoming, 2010-NMSC-007, \u00b6\u00b6 1, 12, 16, 18, 147 N.M. 487, 226 P.3d 1.\n{15} On the confrontation issue, in the present case a forensic toxicologist was qualified as an expert and testified that he received the kit containing Defendant\u2019s blood, he checked the seals to assure they had not been tampered with, he tested Defendant\u2019s BAC using a gas chromatograph, and he prepared his report. He also testified that Defendant\u2019s blood sample came in a standard SLD blood kit, he checked the identifications on the specimen against the Report of Blood Alcohol Analysis form, and he identified the blood-drawer\u2019s signature on the form as \u201cJolene Richardson, R.N.\u201d and her employer \u201cGIMC.\u201d He further testified as to the recording of the results of the lab tests \u201cvia the computer and the gas chromatograph\u201d after which \u201ca reviewer ... reviews all the work [to] be sure that everything \u2014 all the criteria [have] been met.\u201d In addition, he testified that the results were placed on the form, and he signed off on the form as an analyst for SLD. The toxicologist was thus available to be cross-examined regarding the operation of the testing machine and the SLD\u2019s procedures. Defendant did not challenge the toxicologist\u2019s testimony, nor does Defendant attack admission of the report on confrontation grounds based on the absence at trial of any SLD analyst.\n{16} Under Bullcoming, a defendant\u2019s confrontation right is not violated and a blood-alcohol report of the results of a machine-tested blood sample may be admitted where an otherwise qualified analyst testifies to the machine\u2019s blood-test results that are recorded or transcribed by a testing analyst who acts merely as a scrivener. See 2010-NMSC-007, \u00b6\u00b6 1, 19, 147 N.M. 487, 226 P.3d 1. Once, as here, the State has satisfied the blood-drawer qualification and blood-draw method foundation requirements for admission of the test results, we see no basis on which to deny admission of the blood-alcohol report on confrontation grounds because the blood drawer is not present at trial to be cross-examined. After blood-drawer qualification and blood-draw procedure foundational requirements are out of the way, the need to cross-examine the blood drawer is reduced to questions of the chain of custody. As we read Melendez-Diaz and Bullcoming\u2019s, reference to the Melendez-Diaz footnote, the absence of the blood drawer from trial and opportunity for a defendant to cross-examine the blood drawer relating to chain of custody does not provide grounds for a confrontation objection to the admissibility of a blood-alcohol report.\nCONCLUSION\n{17} We hold that Bullcoming does not change our conclusion in our April 20, 2009, memorandum opinion that the district court did not err by admitting the report of the test results of Defendant\u2019s BAC into evidence. We therefore see no basis on which to change or overrule, and we affirm, this Court\u2019s ultimate disposition in our April 20, 2009, memorandum opinion, reversing Defendant\u2019s DWI conviction and remanding it to the district court with instructions to vacate Defendant\u2019s conviction for DWI on double jeopardy grounds and affirming Defendant\u2019s remaining convictions.\n{18} IT IS SO ORDERED.\nWE CONCUR: CYNTHIA A. FRY, Chief Judge and JAMES J. WECHSLER, Judge.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellee.", "Hugh W. Dangler, Chief Public Defender, Stephanie Erin Brunson, Assistant Appellate Defender, Adrianne R. Turner, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2010-NMCA-092\n242 P.3d 481\nSTATE of New Mexico, Plaintiff-Appellee, v. Philbert NEZ, Defendant-Appellant.\nNo. 26,811.\nCourt of Appeals of New Mexico.\nJuly 20, 2010.\nCertiorari Denied, Sept. 15, 2010,\nDocket No. 32,559.\nGary K. King, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellee.\nHugh W. Dangler, Chief Public Defender, Stephanie Erin Brunson, Assistant Appellate Defender, Adrianne R. Turner, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0914-01", "first_page_order": 948, "last_page_order": 954 }