{ "id": 2837477, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Guy B. MYERS, Defendant-Appellant", "name_abbreviation": "State v. Myers", "decision_date": "1975-05-07", "docket_number": "No. 1545", "first_page": "16", "last_page": "26", "citations": [ { "type": "official", "cite": "88 N.M. 16" }, { "type": "parallel", "cite": "536 P.2d 280" } ], "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": "73 N.M. 307", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321598 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0307-01" ] }, { "cite": "74 N.M. 320", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2800947 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "329" }, { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0320-01" ] }, { "cite": "82 N.M. 759", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326038 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0759-01" ] }, { "cite": "77 N. M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802628 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0274-01" ] }, { "cite": "53 N.M. 413", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580735 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/nm/53/0413-01" ] }, { "cite": "69 N.M. 187", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2789013 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0187-01" ] }, { "cite": "234 P. 681", "category": "reporters:state_regional", "reporter": "P.", "year": 1925, "opinion_index": 0 }, { "cite": "30 N.M. 382", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841969 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/nm/30/0382-01" ] }, { "cite": "153 P. 76", "category": "reporters:state_regional", "reporter": "P.", "year": 1915, "opinion_index": 0 }, { "cite": "21 N.M. 14", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2387452 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/nm/21/0014-01" ] }, { "cite": "83 N.M. 208", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337230 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0208-01" ] }, { "cite": "384 U.S. 757", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047531 ], "weight": 8, "year": 1966, "pin_cites": [ { "page": "778" } ], "opinion_index": 0, "case_paths": [ "/us/384/0757-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "15 Or.App. 212", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 8685779 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/or-app/15/0212-01" ] }, { "cite": "318 F.2d 559", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 161889 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/f2d/318/0559-01" ] }, { "cite": "83 N.M. 571", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331937 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0571-01" ] }, { "cite": "42 N.M. 500", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569812 ], "weight": 2, "year": 1938, "pin_cites": [ { "page": "507-8" }, { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/nm/42/0500-01" ] }, { "cite": "41 N.M. 426", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571467 ], "weight": 2, "year": 1937, "opinion_index": 0, "case_paths": [ "/nm/41/0426-01" ] }, { "cite": "85 N.M. 208", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772333 ], "weight": 6, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0208-01" ] }, { "cite": "85 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775643 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/nm/85/0072-01" ] }, { "cite": "388 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 4, "year": 1967, "opinion_index": 1, "case_paths": [ "/us/388/0218-01" ] }, { "cite": "355 U.S. 225", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164227 ], "weight": 3, "year": 1957, "pin_cites": [ { "page": "228" }, { "page": "243" }, { "page": "231" } ], "opinion_index": 1, "case_paths": [ "/us/355/0225-01" ] }, { "cite": "10 A.L.R.3d 974", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1966, "opinion_index": 1 }, { "cite": "180 F.Supp. 71", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1457971 ], "opinion_index": 1, "case_paths": [ "/f-supp/180/0071-01" ] }, { "cite": "81 N.M. 270", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5369115 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/81/0270-01" ] }, { "cite": "86 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823043 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/86/0383-01" ] }, { "cite": "412 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173453 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "473" }, { "page": "2211" }, { "page": "87" } ], "opinion_index": 1, "case_paths": [ "/us/412/0470-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 3, "year": 1963, "pin_cites": [ { "page": "87-88" }, { "page": "1197" }, { "page": "219" } ], "opinion_index": 1, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "1 Cal.Rptr. 80", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1959, "opinion_index": 1 }, { "cite": "175 Cal.App.2d 862", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 6035894 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/cal-app-2d/175/0862-01" ] }, { "cite": "124 N.W.2d 274", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1963, "opinion_index": 1 }, { "cite": "371 Mich. 453", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1873063 ], "year": 1963, "opinion_index": 1, "case_paths": [ "/mich/371/0453-01" ] }, { "cite": "163 N.W.2d 823", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 1 }, { "cite": "13 Mich.App. 203", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2053095 ], "opinion_index": 1, "case_paths": [ "/mich-app/13/0203-01" ] }, { "cite": "283 A.2d 508", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1971, "opinion_index": 1 }, { "cite": "184 A. 616", "category": "reporters:state_regional", "reporter": "A.", "pin_cites": [ { "page": "617" } ], "opinion_index": 1 }, { "cite": "116 N.J.L. 462", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 99266 ], "opinion_index": 1, "case_paths": [ "/njl/116/0462-01" ] }, { "cite": "35 L.Ed.2d 690", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 1 }, { "cite": "93 S.Ct. 1430", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 1 }, { "cite": "410 U.S. 957", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11990720, 11991202, 11990630, 11990925, 11991150, 11990543, 11990989, 11990864, 11991060, 11990805, 11991103 ], "year": 1973, "opinion_index": 1, "case_paths": [ "/us/410/0957-03", "/us/410/0957-11", "/us/410/0957-02", "/us/410/0957-06", "/us/410/0957-10", "/us/410/0957-01", "/us/410/0957-07", "/us/410/0957-05", "/us/410/0957-08", "/us/410/0957-04", "/us/410/0957-09" ] }, { "cite": "468 F.2d 1129", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 247330 ], "year": 1972, "pin_cites": [ { "page": "1133" } ], "opinion_index": 1, "case_paths": [ "/f2d/468/1129-01" ] }, { "cite": "152 U.S. App.D.C. 72", "category": "reporters:state", "reporter": "U.S. App. D.C.", "year": 1972, "pin_cites": [ { "page": "76" } ], "opinion_index": 1 }, { "cite": "200 A.2d 856", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1964, "opinion_index": 1 }, { "cite": "105 N.H. 415", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4460223 ], "year": 1964, "opinion_index": 1, "case_paths": [ "/nh/105/0415-01" ] }, { "cite": "125 Vt. 64", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4637765 ], "weight": 2, "year": 1965, "opinion_index": 1, "case_paths": [ "/vt/125/0064-01" ] }, { "cite": "433 S.W.2d 41", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10126896 ], "opinion_index": 1, "case_paths": [ "/sw2d/433/0041-01" ] }, { "cite": "266 N.E.2d 340", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 1 }, { "cite": "47 Ill.2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905198 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/ill-2d/47/0501-01" ] }, { "cite": "144 U.S. 323", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3560950 ], "weight": 3, "year": 1892, "pin_cites": [ { "page": "365-66" }, { "page": "709" }, { "page": "468" } ], "opinion_index": 1, "case_paths": [ "/us/144/0323-01" ] }, { "cite": "34 N.M. 419", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556145 ], "weight": 2, "year": 1929, "opinion_index": 1, "case_paths": [ "/nm/34/0419-01" ] }, { "cite": "384 U.S. 757", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047531 ], "weight": 5, "year": 1966, "opinion_index": 1, "case_paths": [ "/us/384/0757-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 1, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "85 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775643 ], "weight": 2, "pin_cites": [ { "page": "77" }, { "page": "269" } ], "opinion_index": 1, "case_paths": [ "/nm/85/0072-01" ] } ], "analysis": { "cardinality": 1359, "char_count": 31971, "ocr_confidence": 0.803, "pagerank": { "raw": 2.247273902472518e-07, "percentile": 0.7808105800762901 }, "sha256": "1ca93bb2683692433d47b9eacc1825b86943ea5eef9fdf50bd3ca251b5ce20b3", "simhash": "1:ca5e9c921685a422", "word_count": 5338 }, "last_updated": "2023-07-14T21:34:46.516747+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J., concurs.", "SUTIN, J., dissents." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Guy B. MYERS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nLOPEZ, Judge.\nLate in the evening of November 23, 1973, at approximately 11:00 p. m., Cheryl Lynn Hosier, the two-year-old child of Howard Bruce Hosier, was a passenger in the front seat of a car being driven by her father. Mr. Hosier was driving a 1968 Buick and was traveling east on Montgomery Boulevard in Albuquerque. The defendant was, at the same time, driving a 1967 Oldsmobile northbound on Wyoming Boulevard. The evidence is undisputed that the defendant ran a red light at the intersection of Montgomery and Wyoming and hit the Hosier vehicle on the passenger side. As a result of this impact, Cheryl Lynn Hosier was thrown from her vehicle and killed.\nDefendant was convicted by jury of homicide by vehicle pursuant to \u00a7 64-22-1, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 2). This, section defines homicide by vehicle as \u201cthe killing of a human being in the unlawful operation of a motor vehicle.\u201d The acts of unlawful operation relied upon by the state to support the conviction were: (1) driving under the influence of intoxicating liquor or drugs [a separate violation under \u00a7 64 \u2014 22-2, N.M.S.A.1953 (2d Rep.Vol. 9, pt. 2)] and (2) reckless driving [also a separate violation under \u00a7 64-22-3, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 2)].\nDefendant argues five points for reversal: (1) substantiality of the evidence; (2) violation of defendant\u2019s right by procedures followed in testing his blood; (3) court error in refusing certain of defendant\u2019s tendered jury instructions; (4) failure of the state to lay a proper foundation for the introduction of evidence relating to defendant\u2019s blood alcohol content; and (5) failure of the state to lay a proper foundation for the introduction of evidence involving a \u201cbreathalizer\u201d test.\n(1) Substantiality of the evidence\nDefendant asserts the evidence is insufficient as to three items: (a) the evidence of driving while under the influence of intoxicating liquor; (b) evidence of reckless driving; and (c) evidence of criminal intent. We disagree.\n(a) Section 64-22-2, supra, states in part:\n\u201cIt is unlawful for any person who is under the influence of an intoxicating liquor to drive or be in actual physical control of any vehicle within this state.\u201d\nThree different types of tests were conducted following defendant\u2019s arrest to determine his degree of intoxication. The various tests revealed .05%, .10% and .12% alcohol in the defendant\u2019s blood. These tests were made shortly after the defendant\u2019s arrest.\nThe term \u201cunder the influence\u201d has been interpreted to mean \u201c * * * that to the slightest degree defendant was less able, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle an automobile with safety to himself and the public.\u201d State v. Dutchover, 85 N.M. 72, 509 P.2d 264 (Ct.App.1973).\nSection 64-22-2.10, N.M.S.A. 1953 (2d Repl.Vol. 9) reads in part:\n\u201cIf the blood of the person tested contains :\n\u201c h= * *\n\u201c(3) one-tenth of one per cent [,10%] or more by weight of alcohol, it shall be presumed that the person was under the influence of intoxicating liquor.\u201d\nThis language has been interpreted to mean that such a test result is prima facie proof, sufficient to go to the jury, that defendant was under the influence of intoxicating liquor. State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973). This case further notes that the evidence giving rise to the presumption is to be considered with other evidence in the case on the question of being under the influence and the presumption may be rebutted by such other evidence. 85 N.M. 208, 213, 510 P.2d 1079.\nThere was sufficient evidence for a jury to determine as a matter of fact that the defendant was so intoxicated as to be under the influence of alcohol, and thereby guilty of violating \u00a7 64-22-2, supra.\n(b) Section 64 \u2014 22-3, supra, states in part:\n\u201cAny person who drives any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others and without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property is guilty of reckless driving.\u201d\nThe record shows that defendant was not driving at excessive speed for the area; nor was the defendant\u2019s vehicle shown to be operating oddly. We do not depart from reasoning in State v. Harris, 41 N.M. 426, 70 P.2d 757 (1937), to the effect that a death caused by mere negligence, not amounting to a reckless, willful and wanton disregard of consequences to others, lays no foundation for criminal prosecution.\nNevertheless, this court reviews evidence in a conviction for homicide by vehicle in the light most favorable to the verdict. State v. Trujillo, supra; State v. Dutchover, supra. We will not attempt to substitute our view of the facts for that of the jury. And while we agree that the mere running of a red light would not, alone, constitute reckless driving, the circumstances of intoxication attending this act might reasonably lead a jury to a finding of recklessness. There is substantial evidence on the record to indicate that the defendant was either intoxicated or under the influence of alcohol at the time of the accident.\nAs was stated in State v. Sisneros, 42 N.M. 500, 507-8, 82 P.2d 274, 278 (1938), the act of a person who drives an automobile on the highway in an intoxicated condition \u201cmay be such willful, wanton and criminal negligence and disregard for the safety and lives of others, as that a jury would be warranted in finding him guilty of manslaughter if his operation of the automobile while intoxicated is the proximate cause of the death of another.\u201d\nThere is evidence that defendant, while driving \u201cunder the influence,\u201d caused an accident; that Cheryl Lynn suffered injuries in the accident; and that Cheryl Lynn died from those injuries. This is substantial evidence of proximate cause. State v. Dutchover, supra.\nThere is substantial evidence, therefore, of reckless driving.\n(c) Defendant next argues that he lacked the requisite criminal intent. \u201c * * * [Cjriminal intent, a mental state of conscious wrongdoing, is a necessary element of [homicide by vehicle] and one which must be proven.\u201d State v. Jordan, 83 N.M. 571, 494 P.2d 984 (Ct.App.1972). There is really no conflict since the jury was adequately instructed on the element of criminal intent:\n\u201c* * * Voluntarily driving a vehicle while under the influence is an act mal-um in se and this action is substantial evidence of criminal intent.\u201d State v. Dutchover, supra.\nSince the jury could have found, under part (a), supra, that the defendant was driving while under the influence, it is also possible for the jury to have concluded that defendant possessed the requisite intent to commit homicide by vehicle.\n(2) Blood testing procedures\nDefendant contends that the procedures followed in the extracting of his blood violated his rights as guaranteed (a) by statute and (b) by state and federal constitutions.\n(a) Section 64-22-2.9(B), N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 2), states:\n\u201cB. The person tested shall be given an opportunity to arrange for a physician, licensed professional or practical nurse, or laboratory technician or technologist who is employed by a hospital or physician, of his own choosing to perform a chemical test in addition to any test performed at the direction of a law enforcement officer.\u201d\nDefendant argues that this section entitles him, first of all, to have a test made, by a person of his choice, using the same sample extracted from his body. Defendant further claims that a denial of this opportunity, for whatever reason, renders the state\u2019s results inadmissible. It should be noted at this point that the sample was exhausted by the state in the conduct of its tests, so that no part of it remained for the defendant to test.\nThe court will not adopt a construction of a statute which will lead to unreasonable results. State v. Trujillo, supra. The record shows neither intent on the part of the state to destroy evidence nor any negligence by the state since all the blood was used in the tests conducted. The statute cannot insulate defendant \u201cagainst the \u2018slings and arrows of outrageous fortune\u2019, which may strike anyone at any time and are unfortunately incidental to life itself.\u201d United States v. Pate, 318 F.2d 559 (7th Cir. 1963); Nunn v. Cupp, 15 Or.App. 212, 515 P.2d 421 (1973).\nWe conclude that the results of the state\u2019s tests were admissible regardless of the fact that defendant had no opportunity to test the same sample.\n(b) The second, and more serious, argument under Point 2, concerns the constitutional application of the phrase \u201cshall be given\u201d as it appears in \u00a7 64-22-2.9(B), supra. This language is mandatory on its face. Defendant would have us read this to say that the arresting officer or other administrator of the proposed blood test must warn defendant of his right to have additional tests performed by any qualified person of his choosing. The state argues that a person is presumed to know the law and has no right to such a warning. Compare Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966). Neither position seems entirely accurate in this situation.\nThe record shows that the defendant was given no warning concerning the consequences of refusing a blood test. The statute does not expressly require that such warnings be given. On the other hand, the practice in New Mexico since the time of defendant\u2019s arrest appears, again from the record, to be to give such a warning.\nNew Mexico\u2019s statute does not expressly instruct the police or the test administrator to warn the suspect. There is no overriding constitutional requirement that it must be so construed. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, (1966). Further, New Mexico follows that line of reasoning which requires explicit Miranda-type warnings only in situations of either testimonial or communicative evidence. State v. Mordecai, 83 N.M. 208, 490 P.2d 466 (Ct.App.1971). No warning provision is needed in statutes of a state where the courts interpret the self-incrimination privilege as giving no protection against compulsory physical evidence. Schmerber v. California, supra. Since New Mexico has consistently excluded physical evidence from the scope of the protection, it follows that an accused has no constitutional right to the warnings sought.\nWe note that defendant only impliedly argues the Fifth Amendment privilege against self-incrimination. To that end, we hold that there is no statutory provision under which defendant could exclude the evidence obtained in the contested blood test. We further hold that there is no constitutional reason, either state or federal, which confers upon the accused a right to be expressly told that he has an opportunity, under \u00a7 64-22-2.9, supra, to have additional tests performed by any qualified person of his choosing.\nNevertheless, as the court said in Schmerber v. California, supra:\n\u201c * * * we reach this judgment only on the facts of the present record. The integrity of an individual\u2019s person is a cherished value of our society. That we today hold the Constitution does not forbid the States minor intrusions into an individual\u2019s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.\u201d\nSee also Justice Douglas\u2019 dissent in Schmerber, 384 U.S. at 778, 86 S.Ct. 1826, 16 L.Ed.2d 908, supra.\n(3) Instructions\nDefendant contends that he should have been allowed (a) two instructions on the relevance of character evidence, and (b) one instruction allowing the jury to consider contributory negligence as a factor in determining proximate cause.\n(a) The defendant cites State v. McKnight, 21 N.M. 14, 153 P. 76 (1915), and State v. Burkett, 30 N.M. 382, 234 P. 681 (1925), for the proposition that he was entitled to instructions on the relevance of character evidence if there were evidence in the record to support it. Defendant\u2019s former wife testified that he did not drink often during their marriage, and that when he did, he did not drink to excess.\nWhile we agree with the general proposition presented, State v. McKnight, supra, concerns the admissibility evidence, a point not here in dispute. In State v. Burkett, supra, the court ruled against another defendant on nearly identical instructions. We believe the defendant has misconstrued the holding in State v. Burkett, supra, and we hold, as did that court, that to give defendant\u2019s requested instructions would only have caused the court to comment upon the weight of the evidence. It is also noted that the court in the case at bar did admit the proffered evidence and did instruct the jury on the weight to be given all evidence, in general.\n(b) Because Mr. Hosier testified that Cheryl Lynn was not wearing a seat belt at the time of the accident, defendant requested an instruction that contributory negligence of another can be considered in determining the proximate cause of death. Rules concerning contributory negligence have no application to homicide cases. State v. Romero, 69 N.M. 187, 365 P.2d 58 (1961).\nFurthermore, the jury was adequately instructed regarding the necessity of finding proximate cause. As in part (a) of this Point (3), we hold that the court instructed \u201c . . . the jury upon all questions of law necessary for guidance in returning a verdict.\u201d See \u00a7 41-23-41 (a), N.M.S.A. 1953 (2d Repl.Vol. 6, Supp.1973). [As to proximate cause, see supra section (1) (b) of this opinion.]\n(4) Confrontation of a witness\nDefendant next contends that he was denied due process in that he was not able to adequately question the accuracy of the machine which tested his blood. The accuracy of the machine was supported on direct examination by a witness with a degree in business administration who conducted the test with the machine. The witness did not understand the full intricacies of the machine or the source of its claimed accuracy. The testimony was admitted only after objection by the defense as to the qualifications of the witness to testify.\nIt cannot be disputed that the defendant has the right to cross-examine and confront the witnesses against him. N.M. Const. Art. II, \u00a7 14; State v. Martin, 53 N.M. 413, 209 P.2d 525 (1949). A lay witness, not an expert, may testify generally as to what he observes. This capacity extends into those fields generally acknowledged as beyond the knowledge of the jury, where so-called \u201cexpertise\u201d is required, if the witness is sufficiently trained and experienced. State v. Chavez, 77 N. M. 274, 421 P.2d 796 (1966); Pavlos v. Albuquerque National Bank, 82 N.M. 759, 487 P.2d 187 (Ct.App.1971).\nThe witness in this case was neither a chemist nor a medical expert. However, he had been trained to operate the test machine and had performed several hundred similar tests with it. \u201cThat he was not a specialist does not go to the admissibility of the evidence elicited from him nor to its sufficiency to support a finding based thereon, but rather to the weight to be accorded it.\u201d Frederick v. Younger Van Lines, 74 N.M. 320, 329, 393 P.2d 438, 444 (1964). Further, defendant had ample opportunity to cross-examine the witness.\nWe hold that the defendant was afforded due process in that the accuracy of the testing machine was supported by lay testimony, subject to full rights of cross-examination by defendant.\n(5) Foundation for results of breathalizer test\nDefendant finally contends that it was error on the part of the trial court to allow Officer Cottle to testify concerning the results of a breathalizer test. It is clear from the record that the officer was not testifying as an expert. Determination of the admissibility of such testimony is within the sound discretion of the court. Garrett v. Howden, 73 N.M. 307, 387 P.2d 874 (1963). We find no abuse of discretion on the part of the trial judge.\nWe conclude that the trial court committed no error in any of the points urged by the defendant, and the judgment and sentence of that court are hereby affirmed.\nIt is so ordered.\nHERNANDEZ, J., concurs.\nSUTIN, J., dissents.", "type": "majority", "author": "LOPEZ, Judge." }, { "text": "SUTIN, Judge\n(dissenting).\nI dissent.\nA. The indictment was fatally defective.\nThe indictment charged defendant with homicide by vehicle in one count. It charged defendant with driving under the influence of intoxicating liquor or drugs, or reckless driving, which resulted in the death of a minor child.\nThe jury returned a verdict:\nWe, the jury, find the defendant guilty in the manner and form as charged in the indictment.\nThe indictment and verdict leave unanswered the following question: Was the defendant convicted of homicide by vehicle while (1) driving under the influence of intoxicating liquor, or (2) driving under the influence of drugs, or (3) driving recklessly? The State must inform a defendant, with certainty, of the offense with which he was charged. It is impossible to sustain a conviction upon an indictment in which the offense charged is indefinite and uncertain. State v. McMath, 34 N.M. 419, 283 P. 51 (1929).\nIt is the established rule of the common law * * * that in all criminal prosecutions the accused must be informed of the nature and cause of the accusation against him. It is the law of every civilized community, and in no case can there be, in criminal proceedings, due process of law where the accused is not thus informed. The information which he is to receive is that which will acquaint him with the essential particulars of the offense, so that he may appear in court prepared to meet every feature of the accusation against him. State v. Dutchover, 85 N.M. 72, 77, 509 P.2d 264, 269 (Ct.App.1973) (Su-tin, J., dissenting) (quoting Mr. Justice Field\u2019s dissent in O\u2019Neil v. Vermont, 144 U.S. 323, 365-66, 12 S.Ct. 693, 709, 36 L.Ed. 450, 468 (1892))\nThe use of the disjunctive \u201cor\u201d is a fundamental defect and the indictment is fatally defective and void and vulnerable to attack at any time. People v. Heard, 47 Ill.2d 501, 266 N.E.2d 340 (1970); State v. Hook, 433 S.W.2d 41 (Mo.App.1968); State v. Ciocca, 125 Vt. 64, 209 A.2d 507 (1965); State v. Webster, 105 N.H. 415, 200 A.2d 856 (1964). See, also, 42 C.J.S. Indictment and Information, \u00a7 101, at 984-86.\nB. The State denied defendant his statutory right to a blood test by a physician of his own choosing. This was prejudicial error.\nThe accident occurred at 11:10 p. m. A blood sample was drawn from defendant at about 12:15 a. m. Two breath balloon tests were made. A blood alcohol test on the blood sample was made by the State.\nOn January 25, 1974, two months before trial, defendant filed a motion for an additional blood test. On the morning of trial, this motion was heard. The court and the State agreed that defendant was entitled to a blood alcohol test of the blood sample pursuant to \u00a7 64-22-2.9(B), N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2). However, the State reported that it exhausted all of the blood sample in making its tests to determine alcoholic content and drugs, if any, in defendant\u2019s body. None of the blood sample withdrawn from defendant was available for an additional blood test by a physician chosen by the defendant. The trial court denied defendant\u2019s motion to suppress the blood tests taken by the State.\nThe majority of this Court finds no error in denial of defendant\u2019s motion to suppress the results of the State\u2019s blood test, even though defendant was unable to introduce his own evidence as to alcohol blood levels at trial. The majority\u2019s reason for so holding is that the statute permitting defendant to perform his own blood test \u201ccannot insulate defendant \u2018against the slings and arrows of outrageous fortune\u2019 * * * \u00bb\nTo the contrary, the accused has an absolute right to secure witnesses and obtain additional evidence to counteract the evidence obtained by the government, to establish a defense and to seek an acquittal. To hold otherwise is to return to the rack and the stake.\nThe defendant, not the State, was penalized at trial because the blood sample was used up before defendant could exercise his right to perform his own blood test. This consequence does not disturb the majority of the Court. It disturbs me greatly because, \u201cEssential fairness is a fundamental due process requirement in criminal prosecutions * * *. [Citations omitted]/\u2019 United States v. Parish, 152 U.S. App.D.C. 72, 76, 468 F.2d 1129, 1133 (1972), cert. denied, 410 U.S. 957, 93 S.Ct. 1430, 35 L.Ed.2d 690 (1973).\nA fair trial is * * * one where the accused\u2019s legal rights are safeguarded and respected. Johnson v. City of Wildwood, 116 N.J.L. 462, 184 A. 616, 617 (Ct.Err. & App.1936).\nThis is not a case simply of \u201cjustice\u201d or \u201cfairness\u201d, in the abstract. Denial to defendant of the opportunity to conduct his own blood test was a denial of access to evidence he might have introduced in his own defense. For this reason, it is a denial of his constitutionally guaranteed due process of law. Commonwealth, Dep\u2019t of Transp. v. Gallagher, 3 Pa.Cmwlth. 371, 283 A.2d 508 (1971); People v. Burton, 13 Mich.App. 203, 163 N.W.2d 823 (Ct.App.1968); People v. Koval, 371 Mich. 453, 124 N.W.2d 274 (1963); Application of Newbern, 175 Cal.App.2d 862, 1 Cal.Rptr. 80 (Ct.App. 2nd Dist. 1959).\nFull and free access to evidence is fundamental in our adversary system of trial.\nA prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though * * * his action is not \u201cthe result of guile,\u201d * * *. [Emphasis added] Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215, 219 (1963).\n[T]he ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases * * *. Wardius v. Oregon, 412 U.S. 470, 473, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82, 87 (1973).\nImposing a heavier burden on the defendant than on the State contradicts two of the most fundamental principles in our criminal law: (1) An accused is presumed innocent until proven guilty. (2) The State must prove the guilt of an accused beyond a reasonable doubt (the heaviest burden of proof imposed on any litigant in our legal system). On the importance of these principles in our criminal justice system, see State v. Chambers, 86 N.M. 383, 524 P.2d 999 (Ct.App.1974); State v. Henderson, 81 N.M. 270, 466 P.2d 116 (Ct.App.1970); United States v. Bonanno, 180 F.Supp. 71 (S.D.N.Y.1960); R. Anderson, Wharton\u2019s Criminal Law and Procedure, v. 5 \u00a7\u00a7 2098, 2100, at 267, 271; J. Bentham, A Treatise on Judicial Evidence (1825), at 196-98.\nBecause the defendant was denied his statutory right to his own blood test and, therefore, his constitutional right to gather evidence in his own defense, introduction of the State\u2019s blood test results was a denial of due process to the defendant. The State\u2019s blood test results should have been suppressed at trial.\nC. The State had a duty to warn defendant of his statutory right.\nThe majority of this Court believes that no warning of defendant\u2019s statutory right to have his own blood test performed is required. The reason given by the majority is that blood tests are not covered by the Fifth Amendment privilege against self-incrimination, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and, therefore, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), does not apply to the instant case.\nIt is uncontested that appellant had a statutory right to have his own test performed. It is a fair assumption that the great majority of citizens are unaware of this right. If a citizen is unaware of his right to request an additional blood test, how can he exercise the right?\nThe problem here revolves around notice of a statutory right that might be useful in preparing one\u2019s defense to a criminal charge.\nNotice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. [Citations omitted], Lambert v. People of the State of California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2 L.Ed.2d 228, 231 (1957).\nThe Fifth Amendment privilege against self-incrimination is irrelevant to blood alcohol test results. Schmerber, supra. Even so, the reasoning which led the Supreme Court in Miranda to choose a warning as the best method of protecting that privilege applies with equal validity to the statutory right here in question.\n* * * [W]e will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearctit fact. [Emphasis added]. 384 U.S. at 468-69; 86 S.Ct. at 1625, 16 L.Ed.2d at 720.\nI conclude that persons compelled to give blood samples pursuant to the Implied Consent Act are deprived of their statutory right to an additional blood test, if they are not advised of that right at the time the blood sample is given to the State.\nIt is only a short step further to the conclusion that the lack of warning as to his statutory right deprived appellant of his right to due process of law, guaranteed by the state and federal constitutions. The reason is that the results of his own additional blood test might have been used by appellant in his own defense, at trial. Therefore, failure to warn of the right to obtain his own blood test denied .appellant his due process right to obtain evidence for use in his own defense in a criminal prosecution. Gallagher, supra; Burton, supra; Koval, supra; Newbern, supra.\nI conclude that the majority of the Court is correct that appellant was not robbed of his Fifth Amendment privilege against self-incrimination because of the failure to warn of his statutory right to an additional blood test. However, that is not the point. The failure to warn did deprive appellant of the opportunity to exercise his statutory right. And deprivation of the statutory right in question has the consequence of depriving accused persons in a criminal proceeding of their due process right to obtain evidence in their own defense.\nD. Accused persons, from whom alcohol blood samples are taken, pursuant to the Implied Consent Act, have a right to the presence of counsel when the blood sample is taken.\nThe Sixth Amendment guarantee of the assistance of counsel requires that counsel be present at all \u201ccritical stages\u201d of a criminal proceeding. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967). Presence of counsel is not constitutionally required at the time of the taking of a blood sample, because this is not a constitutionally protected \u201ccritical stage\u201d of a criminal proceeding. Wade, supra; Schmerber, supra. In New Mexico, however, the time of the taking of the blood sample must be considered a critical stage, because a constitutionally protected warning of the right to an additional blood test is required at that time. Therefore, an attorney\u2019s presence should be mandatory, in New Mexico.\nEven though the right to an additional blood test arises from legislative fiat, the right to be advised of the statutory right is protected by the due process clause in the state and federal constitutions. The Wade requirement that counsel be present at \u201ccritical stages\u201d makes presence of counsel mandatory at the time when this constitutionally protected warning must be given, i. e., when the blood sample is drawn.\nThe Schmerber holding that the Fifth Amendment privilege against self-incrimination does not cover the giving of a blood sample for a blood alcohol test was concurred in by only five of the nine justices on the Supreme Court. Chief Justice Warren, and Justices Black, Douglas and Fortas wrote, in dissent, that the Fifth Amendment protection does apply. The close division of the Supreme Court on that question, coupled with the necessity, in New Mexico, of giving a constitutionally protected warning at that stage of the proceedings, should compel the conclusion that this is a \u201ccritical stage\u201d in New Mexico; and that, therefore, presence of counsel is required to protect an accused\u2019s constitutional rights.\nE. Defendant is entitled to a fair trial.\nA criminal trial is an adversary procedure in which the State, seeking the conviction of an accused, and the accused, fighting for his liberty, engage in combat. Each side should fight with zeal, yet not without respect for the rules that maintain the fairness of the adversary process. The accused must be given the benefit of all procedural safeguards provided by the Constitution, by statutes, and by case law. This is the essence of a fair trial, one in which evenhanded justice is dispensed.\nA sporting contest is analogous to a lawsuit, in that it is an acceptable form of combat in our society, acceptable because the \u201crules of the game\u201d maintain fairness between the adversaries. In boxing, the rules do not require that one adversary shall fight with one arm strapped to his back. In tennis, the rules do not require a right handed adversary to use the racquet with his left hand.\nSimilarly, in a criminal trial, the rules do not require an accused to fight for life or liberty without access to evidence to which he is entitled, or without a competent attorney to protect and defend him. The rules do not allow the State to give evidence against an accused, while denying the accused access to the same type of evidence for use in his defense. Yet that is precisely what was done in the instant case, with respect to blood alcohol test results.\nPolice officers are, or should be, familiar with criminal laws like the Implied Consent Act, having been trained at the New Mexico Law Enforcement Academy. They are aware of their authority to arrest and to direct the performance of a blood alcohol test. Those duties were adequately performed in this case. They should also be aware that the person arrested, from whom blood has been withdrawn, must be given an opportunity to arrange for a physician or other qualified person of his own choosing to perform a chemical test in addition to any test performed at their direction. In the instant case, a police officer\u2019s lack of knowledge of the law allowed the State to deprive defendant of his statutory rights.\nIt is reprehensible that the State should first force the defendant to give blood without his consent, then exhaust the sample, and, finally, use the tests, over objection, with pomp and glory and splendor in the courtroom to convict him. The State has no legal right to say: \u201cIt is too bad. We are very sorry that all the blood was exhausted. We have got you now.\u201d Such a course of action has no place in our adversary system of litigation.\nThe State has no right to, \u201cdeprive any person of life, liberty, or property, without due process of law; * * *Amendment XIV, Constitution of the United States; Article II, Section 18, New Mexico Constitution. Yet, in this case, there was no due process of law in respect to the accused\u2019s right to gather evidence for use in his own defense.\nDefendant did not have a fair trial.", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Raymond W. Schowers, Horn, Schowers & Ginsburg, Albuquerque, for defendant-appellant.", "Toney Anaya, Atty. Gen., Santa Fe, Jay F. Rosenthal, Asst. Atty. Gen., for plaintiff-appellee." ], "corrections": "", "head_matter": "536 P.2d 280\nSTATE of New Mexico, Plaintiff-Appellee, v. Guy B. MYERS, Defendant-Appellant.\nNo. 1545.\nCourt of Appeals of New Mexico.\nMay 7, 1975.\nRaymond W. Schowers, Horn, Schowers & Ginsburg, Albuquerque, for defendant-appellant.\nToney Anaya, Atty. Gen., Santa Fe, Jay F. Rosenthal, Asst. Atty. Gen., for plaintiff-appellee." }, "file_name": "0016-01", "first_page_order": 46, "last_page_order": 56 }