Contents

Preface

1. DWI Offenses and Elements

2. Initial Stop, Field Sobriety Testing, and Arrest

3. Implied Consent and Breath and Blood Testing

4. Sentencing

5. Other Alcohol-Related Offenses

Appendices

3.1 Overview

At this point in the process, the officer has developed sufficient probable cause to arrest the driver for DWI and taken the driver into physical custody.  Thus, in accordance with the officer’s DWI training, she is beginning the post-arrest procedures of informing the driver of the Implied Consent advisories, conducting a deprivation/observation period on the driver, and administering the chemical (breath and/or blood) tests or noting a driver’s refusal to submit to testing.  This chapter will discuss each of those critical post-arrest steps in detail, in addition to the need of the prosecution to present evidence relating back the breath and/or blood test scores to the actual time of driving, if and when necessary.

3.2 Implied Consent Act Advisories

Either immediately, or soon after the arrest, and always before breath and/or blood testing, the driver must be read an "Implied Consent Notice," by an officer.  The Implied Consent Act, §§66-8-105 to 66-8-112, which applies to anyone "who operates a motor vehicle within this state,” §66-8-107(A), requires a person under arrest for DWI to provide a breath and/or blood sample to determine his or her drug or alcohol content.  A refusal to consent to the test(s) can result in a charge of aggravated DWI, §66-8-102(D)(3), a more severe sentence if convicted and a longer period of administrative license revocation.  §66-8-111(B).

The purpose of the Implied Consent advisories is to inform the driver of her obligations under the Implied Consent Act (as a privilege of driving in New Mexico, the driver’s consent to submit to breath and/or blood testing upon a DWI arrest is implied), her rights (the reasonable opportunity to arrange for an independent blood alcohol test at no cost to the driver, following her submission to the officer’s requested test or tests), and the consequences of her refusal to submit to breath and/or blood testing (a criminal charge of aggravated DWI and a one-year administrative revocation of her driver’s license).  The Implied Consent advisories also work to inform motorists that their right to speak to an attorney does not apply at the breath and/or blood alcohol testing phase of a DWI investigation.

The Implied Consent advisories must be read to the driver, regardless of what type of test or tests (breath and/or blood) the officer is requesting.   If the officer is requesting both breath and blood tests from the driver, it is sufficient that the Implied Consent advisories are read to the driver one time.  Spanish language versions of the Implied Consent advisories are provided to all law enforcement agencies.  It is best if the officer reads the notice verbatim.  This ensures all the points are covered fully and correctly.  It is not proper for the officer to merely point out the Implied Consent advisory poster, usually located near the breath testing equipment, and leave it up to the driver to read the information on his or her own. 

The officer must advise the arrested person substantially as follows.  See State v. Jones, 1998-NMCA-076. 

After advising the driver of the Implied Consent information, if the driver agrees to a breath and/or blood test, then the officer may administer it.  (See below for a discussion of the requirements for a valid chemical test.)  If the driver refuses to take the test(s), they cannot be forced to submit to testing and the officer must read the portion of the Implied Consent advisories informing the driver of the possible consequences of refusing to take the test(s).  If a motorist never questions the officer about his right to an attorney or specifically requests to speak to an attorney, it is not necessary that the officer read the portion of the advisories stating that the right to counsel does not exist at that stage of the DWI investigation.

3.3    Refusal to Submit to Breath and/or Blood Testing

If the driver refuses to submit to testing, no test(s) may be given except under the limited circumstances, as described in detail in Section 3.7.3.  The driver will be charged with aggravated DWI based on the refusal.

There are many issues to consider in determining whether a driver has, in fact, refused to take a test.  Clearly, if the driver verbally expresses a definite refusal, such as by saying, "No, I will not/do not want to take the test," this constitutes a refusal.  What if the driver says nothing?  This also can constitute a refusal if, by the driver's silence and actions or inactions, it is clear to the officer the driver will not submit to the test.  For example, officers will sometimes testify that when the breath tube was offered to the silent driver, he made no efforts to accept it by taking it into his mouth. 

What follows is a discussion of breath testing refusal situations where the driver agrees to submit to breath testing, accepts the mouthpiece for submitting a sample but, for various reasons, two samples are not obtained, situations where a driver places conditions on his or her agreement to test and situations where a driver submits to one form of testing but refuses to submit to another form of testing.

3.3.1   Refusal Based on Insufficient Samples Being Indicated by the Testing Equipment

A dilemma is presented when the driver agrees to take the test, but fails to obey the instructions on how to perform the breath test.  For the Intoxilyzer models of breath testing equipment, the printed breath test card will read either “insufficient sample” or “no sample introduced,” in these types of situations.  These situations require the officer to determine whether the driver’s actions are a refusal versus an inability to provide adequate air samples.  This can occur, for example, when the driver does not or cannot blow into the machine properly.  If this is the case, the officer must make efforts to ensure there is no physiological reason for the failure before concluding the driver is, by his or her actions, refusing.  If there is a medical reason for the failure (such as asthma or some other breathing difficulty), the officer should arrange for a blood test to be administered.  (See discussion below regarding  blood sample alcohol concentration tests.)  A driver who agrees to take the test, but who, due to the impacts of intoxication, is unable to follow instructions may also be said to have refused. The officer does have the option in those situations to select a blood test rather than a breath test.  However, the officer is not required to move to a blood test in those situations, and a refusal to test will stand.

3.3.2 Refusal Based on the Receipt of Only One Measurable Breath Sample

The Court of Appeals has dealt with the issue of whether a driver’s actions of submitting only one breath sample, rather than the two provided for in the Scientific Laboratory Division (SLD) regulations, can constitute a refusal to submit to breath alcohol testing.  In State v. Vaughn, 2005-NMCA-07, the driver submitted one breath sample, which registered 0.16, twice the statutory .08 limit.  After seeing that breath score, the driver then blew into the testing equipment a second and third time resulting in readings of “insufficient sample” and “no sample introduced.”  The officer testified the testing equipment was working properly, having passed its internal diagnostic and calibration checks.  The officer further testified he felt the driver’s actions of failing to blow properly were intentional.  In contrast, the driver testified he neither refused to blow nor refused to follow instructions.  Instead, he explained he could not hear the officer’s instructions due to a hearing impairment.  The driver was charged with aggravated DWI based both on his one breath test score of 0.16 and his alleged refusal to provide two sufficient samples.  Vaughn at ¶¶ 2, 3. 

On appeal, the issue was whether the legislature intended that a driver could provide only one breath sample and still be found guilty of refusing to comply with the testing procedures established by the Implied Consent Act and the SLD regulations.  The driver argued the trial court erred both in its interpretation of the refusal to submit to testing aggravated DWI statute, §66-8-102(D)(3), and the Implied Consent Act, when it concluded the driver refused to comply with testing based on having provided only one breath sample.  Vaughn at ¶ 34.     

In its analysis, the Court of Appeals reviewed the relevant DWI statute, the Implied Consent Act and the applicable SLD regulations regarding the collection of breath alcohol samples.  In so doing, the court determined that “[s]ince the Implied Consent Act references the authority of SLD to define testing, and SLD has clearly defined correct testing of breath as the collection of two samples, providing one sample is not submitting to testing “as provided for” in the Act or as designated by SLD.”  Thus, the court concluded that “[t]hose who provided one sample therefore have refused to take the test as designated by SLD.”  Vaughn at ¶ 40.  Under the Vaughn analysis, anything less than two breath test samples is a refusal to submit to testing and therefore can constitute an aggravated DWI.

3.3.3 Refusal by Not Taking the Testing Method Chosen by Law Enforcement

Once the driver has consented to take a chemical test, it is up to the arresting officer to specify what type of test or tests (breath and/or blood) will be administered.  Section 66-8-107(A) states the type of test shall be "as determined by a law enforcement officer."  What happens when a driver refuses to take the test selected by the officer, but states he will take a different type of test?  This issue was discussed by the Court of Appeals in Fugere v. State Tax & Revenue Dept., Motor Vehicle Division, 120 N.M. 29 (Ct. App. 1995). 

In Fugere, after being arrested for DWI, the driver was asked to take a breath alcohol test.  The driver refused to take the test on the machine selected by the officer (an RBT III Alco-Sensor located in the officer's vehicle), but stated he would take a test on the breathalyzer located at the police station.  The driver was advised the selection of the initial test was up to the officer, but after that test, the driver could take a test of his own choosing.  The driver still refused the test on the RBT because "he did not trust the RBT." Fugere, 120 N.M. at 32.  The officer informed him his words would be considered a refusal, and thereafter the driver was charged and booked into jail. 

The Court of Appeals held the driver had only conditionally consented to take the test, and "[a] conditional consent is a refusal to take the test."  Fugere, 120 N.M. at 32.  Citing In re Suazo, 117 N.M. 785 (1994), (discussed in detail later in this chapter), the driver argued his agreeing to take the test at the police station "cured" his refusal.  The court stated the Suazo analysis did not apply since the driver made no attempt to comply with the officer's request, but "insisted on taking the test on a machine of his own choosing."  Fugere, 120 N.M. at 35.  The driver’s conscious decision not to take a specific type of test constituted a refusal.  The court stated that if the driver was concerned about the accuracy of the officer’s selected test, he should have submitted to it, then taken an independent test of his own choosing, and argued unreliability of the initial test to the court.  In short, the conclusion in Fugere is that a motorist cannot put conditions upon his or her agreement to submit to the officer’s requested method(s) of testing.

3.3.4 Refusal by Taking One Testing Method Chosen by Law Enforcemen, but not the Second Method Chosen by Law Enforcement

New Mexico statutes allow the officer to select a breath or blood test, or both.  §66-8-107(B).  Therefore, despite having received valid, measurable breath samples from a driver, the officer can request a blood sample as well.  The same situation applies where a blood sample is initially obtained.  There may be a variety of reasons why an officer would request both breath and blood samples from a motorist.  One example is where the officer suspects the driver’s alleged intoxication might be from both drugs and alcohol; the breath test is to measure the alcohol content and the blood test is to analyze for the presence of illegal and/or legal drugs.  Another example might be where the officer is concerned about whether the breath testing equipment is functioning properly, perhaps based on the review of the log book entries regarding breath tests done on other motorists prior to the officer’s driver.  In that situation, despite the testing equipment appearing to be working properly in its receipt and analysis of the driver’s breath samples, the officer might use the blood test as a back-up in the event the breath test results are challenged by the driver in court and subsequently not allowed into evidence.

When valid breath or blood testing occurs, it is a rare situation where an officer requests of the driver that he or she also submit to the alternative method of testing.   To require that of a motorist would add to the duration of time the DWI investigation takes the officer, which officers generally attempt to avoid since that means less time on patrol and for other work-related tasks.  However, given that §66-8-107(B) gives law enforcement the authority to secure both breath and blood samples, a driver who submits to one form of testing but refuses to submit to the second form of requested testing can be charged with aggravated DWI, §66-8-102(D)(3), based on that refusal.           

3.4    Subsequent Change of Mind after Initial Refusal to Test

The case of  In re Suazo, 117 N.M. 785 (1994), addressed the issue of whether a refusal to submit to breath and/or blood testing can subsequently be changed to an agreement to take the test(s).  In that case, the driver was asked to take a breathalyzer test and advised of the consequences of refusing to do so.  He agreed to take the test, but, after three attempts during which he neither breathed hard enough nor long enough to obtain a measurable breath sample, the officer "determined that Suazo's failures were willful and amounted to a refusal to take the test."  Suazo, 117 N.M. at 787.  At that time, the driver did not allege any medical difficulty, nor did the officer detect any physical problems that would interfere with the test.

While being transported to jail, the driver asked to be taken to the hospital for treatment from his automobile accident.  While there, he called his attorney, who later appeared at the hospital.  The driver then agreed to take a blood alcohol test.  That test was given two hours and fifteen minutes after the driver’s initial refusal to take the breath test.  The blood test resulted in a BAC of .04%. 

Since this case arose from an appeal of an Implied Consent administrative license revocation, the issue was whether the driver refused to take the breath test, based on his initial attempts, and whether that should result in a license revocation.  The hearing officer determined that it was a refusal, but the district court reversed.  The Court of Appeals reversed the district court and agreed with the hearing officer.  The Supreme Court then reviewed the case to answer the issue of whether the initial refusal was "cured" when the driver later agreed to take a blood test.

After reviewing how other states handled such situations, the court adopted a "Flexible Rule Test," which allows a driver to change his or her mind regarding an initial refusal when:

• The change of mind from refusal to consent is done "before the elapse of the reasonable length of time it would take to understand the consequences of . . . refusal;"
• The "test would still be accurate" when given at a later time;
• The equipment is "readily available" to perform the test;
• There is no "substantial inconvenience or expense to the police” in honoring the change of mind request; and
• The individual has "been in police custody and under observation for the whole time since his arrest."

Suazo, 117 N.M. at 793.

The court concluded these criteria balanced the needs of officers and the public with the concerns and possible initial confusion of drivers.  The court reiterated the Flexible Rule Test would not significantly affect chemical testing procedures. 

It is important to note the time delay for advising a change of mind must be "very short, never more than a matter of minutes."  Suazo, 117 N.M. at 793.  The court offered the standard of “reasonableness” in terms of the time delay in indicating a change of mind.  The time allowed would be only that which it would take the driver to "comprehend his situation." Suazo, 117 N.M. at 794. 

It is up to the driver to prove he meets the criteria of the test.   In Suazo, the court held that two hours and fifteen minutes did not meet the Flexible Rule Test and therefore the driver’s change of mind would not cure his refusal.  The trial court will need to apply the Flexible Rule Test to a case’s specific facts, when presented with an alleged initial refusal and subsequent change of mind.

Note that while the Suazo case involved an administrative Implied Consent license revocation, the Flexible Rule Test adopted by the Supreme Court is applicable in criminal DWI proceedings.

3.5    Right to an Independent Test

The Implied Consent Act allows a driver to request an independent breath or blood alcohol test after submitting to the test or tests chosen by the officer.  §66-8-109(B).  This test may be performed by a qualified person of the driver’s own choosing, such as a physician, licensed professional or practical nurse, laboratory technician or technologist employed by a hospital, or an independent physician.  The cost of the independent test is the responsibility of the law enforcement agency involved in the DWI, not that of the motorist.  The motorist must be advised of that in the Implied Consent advisories. 

The Court of Appeals discussed the independent test provision in State v. Jones, 1998-NMCA-076.   The first issue was whether the officer was required to read the notice to the defendant verbatim from the statute, and/or the standard card used by the police, or whether substantial compliance was sufficient.  The court held that as long as the officer complied with the purpose of the law, to inform the defendant of the “right to arrange to have an independent chemical test performed by a person of his or her own choosing,” then recital of the exact words is not necessary.  If it can be determined the driver understood his or her rights and was not confused in any way, then substantial compliance with the statutory language will be sufficient to meet the requirements of the law.  Of course, this issue can be avoided altogether if officers read directly from the card, even though that is not legally required.  As the court stated, this “would help reduce the need for the courts to consider each notice given under the statute for substantial compliance under the facts of that case.”  Jones at ¶ 21.

Further, the court held §66-8-109(B) not only allows the driver the right to have his blood analyzed by the person of his choosing, but also allows the blood to be drawn by a qualified person of his choosing.  Balancing the right of the driver to have the second test and the need to have tests taken within a reasonable period of time, the court held that the statute “does not guarantee the arrestee an additional test will be performed, but only that the arrestee will be given a reasonable opportunity to arrange for an additional test.”  Jones at ¶ 24.  Law enforcement must give the driver an opportunity to use the telephone and phone directories to make these arrangements.  Failure to do so violates the statute.  Even if the driver’s independent test is to be performed some time after the arrest, it will still be allowed.  The results, however, are subject to attack by the prosecution based on their reliability due to lapse of time. 

3.6    Requirements for a Valid Breath Test

After a driver agrees to take a breath test under the Implied Consent Act, the officer must follow strict guidelines to ensure the test will be admissible in court.  The training on use of breath testing devices is overseen by the New Mexico Department of Health, Scientific Laboratory Division (SLD) and is guided by SLD-adopted regulations designed to further this endeavor.  The regulations, last revised in March of 2001, govern the laboratories, the machines and the individuals administering breath alcohol tests.  See Appendix D.2 (Tab 9).  The courts look to the SLD regulations when a question arises regarding the admissibility of a breath and/or blood alcohol test.  A summary of the regulations is as follows:

• Rule 7.33.2.9 governs the certification of laboratories engaged in conducting breath or blood tests.  For most departments, SLD will be the laboratory used to analyze tests. However, if a law enforcement department uses its own lab, such as is done in Albuquerque, SLD regulates how that lab will perform its duties, what reports need to be made, and the quality control measures required to maintain lab certification.

• Rules 7.33.2.10 – 7.33-2-12 govern the collection of breath or blood samples and the machines or methods used to collect the samples.

• Rules 7.33.2.13 – 7-33-2-17 set forth the requirements for certification of a machine operator and key operator.

• Rule 7.33.2.18 requires manufacturers of breath alcohol testing machines to submit their machines to SLD for approval before any agency may use the machines.

Most legal challenges to the breath tests have been in the areas of machine calibration and adherence to the proper procedure for administering the tests.

3.6.1 Twenty-Minute Deprivation/Observation Period for Breath Tests

The first step in securing a proper breath test with accurate results is for law enforcement to conduct a deprivation/observation period of the driver for a minimum of twenty minutes before the first sample is provided.  What follows is a discussion of the reasoning for that and the applicable regulations and case law on the deprivation/observation.  

The Purpose Behind a Minimum Twenty-Minute Waiting Period Before Breath Testing

SLD Rule 7.33.2.12(B)(1) mandates no breath alcohol test shall be given until the operator of the machine has “ascertained that the subject has not had anything to eat, drink or smoke for at least 20 minutes prior to collection of the first breath sample.”  This is to ensure there is no interference from any other substance when the driver is submitting a breath sample.  The breath testing machine is designed to detect and quantify the grams of alcohol per 100 milliliters of blood.  This is done by having the driver breathe deeply into the machine. The machine, through a process called infrared spectrometry where the breath passes through a fuel cell, is then able to calculate the blood-alcohol ratio.  Any recently ingested substance or any recent regurgitation or belching can affect the results.  Therefore, it is imperative the machine get clean breath samples for the results to be valid.  This is the reason for the twenty-minute deprivation/observation period.  Keep in mind the deprivation/observation requirement applies only to breath testing, not blood testing. 

The Deprivation/Observation Goes to the Admissibility of the Breath Tests

In State v. Gardner, 1998-NMCA-160, the driver was arrested for DWI and transported for a breathalyzer test.  About fifteen to twenty minutes before the test, the driver went to the restroom, placing her out of the officer’s sight.  During this time “the officer admitted that he did not know whether Defendant burped, belched, or vomited while she was in the bathroom.”  Gardner at ¶ 3.  The defense objected to the admission of the breath test arguing  the officer had not strictly complied with the SLD regulations.  The trial court allowed the results, but the Court of Appeals reversed. 

The court held that since the Implied Consent Act requires “a test of blood or breath or both, approved by the scientific laboratory division of the department of health[,]” the legislature was mandating compliance with the regulations.  Gardner at ¶ 8 (quoting §66-8-107(B)).  If the prosecution cannot show strict compliance with the regulations, the proper evidentiary foundation (the necessary matters the prosecution must first show before evidence will be introduced for consideration by the court) will not be established and the evidence will be inadmissible.  The court was explicit that failure to comply with the regulations, including the twenty-minute deprivation/observation period requirement, does not go to the weight of the evidence, but rather to its admissibility, because “compliance with applicable regulations is explicitly a part of the statute that permits the tests into evidence.”  Gardner at ¶ 14.  (Compare with breath testing machine calibration in §3.6.2 below). 

The court also explained the requirements for compliance with the twenty-minute deprivation/observation period.  It is clear that if the driver is out of the officer’s sight, such as being in another room during the required time, the test results will not be admissible.  Depending on the specific circumstances, trial courts may allow cases of what it called “substantial compliance.”  For example, such a case existed where the officer “glanced down periodically to do paperwork,” or had the driver under observation during transport to the police station.  In these situations, the officer will need to testify that, even though he may not have directly observed the driver for the full twenty minutes, the driver was in the officer’s presence and the officer would have noticed had the driver ingested a substance, regurgitated or belched.  If the officer cannot testify to this, the breath test results cannot be admitted due to the failure to prove compliance with the twenty-minute observation requirement.

Keep in mind that more than one officer can be involved in the deprivation/observation period and it can still be valid.  For example, such a situation may arise during the deprivation/observation period if the arresting officer asks another officer to watch the driver to make sure he or she remains deprived while the arresting officer steps out for a brief period of time in order to get a report form, take a phone call or use the bathroom.  Another example involving two officers conducting a deprivation/observation period might be where the officer who arrested and will test the driver cannot transport the driver from the scene of the traffic stop to the location of the testing.  This might be perhaps because the arresting officer’s police unit does not have a transport safety cage or is a canine unit.  In those situations, upon the arresting/testing officer reconnecting with the driver, the officer should ensure from his or her assisting/transporting officer that nothing occurred to break the deprivation/observation during the arresting/testing officer’s absence.  The arresting officer should also document that that situation occurred and be able to explain in court why it happened and how he or she ensured the deprivation/observation remained valid.         

In conclusion, if the prosecution cannot, to the court’s satisfaction, prove a valid deprivation/observation period of a minimum of twenty-minutes was done before breath testing the breath test results are not to be allowed into evidence.

An Officer’s Inspection of a Driver’s Mouth

In State v. Collins, 2005-NMCA-044, the Court of Appeals dealt with the issue of the validity of a deprivation/observation where an officer does not inspect a driver’s mouth for chewing tobacco.  At trial, the defendant testified he had chewing tobacco in his mouth during the breath alcohol tests and the officer’s failure to inspect his mouth meant the tests were not done in accordance with SLD regulations.  Collins at ¶ 21.  On appeal, the prosecution’s response was that the fact finder may not have believed the driver regarding the chewing tobacco and the SLD regulations did not require an actual inspection of the driver’s oral cavity.  Collins at ¶ 22.

In its analysis, the court first looked to the SLD regulation in effect at the time of the driver’s breath testing.  In terms of the twenty-minute waiting period, the SLD regulation then in effect spoke of a “continuous observation for at least 20 minutes prior to collection of the first breath sample.”  Collins at ¶¶ 23, 25.  Thus, the court concluded that that language did not require the officer to affirmatively determine whether the driver’s mouth was in fact free of any substance.  Rather only a “continuous observation” for twenty-minutes was necessary, during which the driver did not regurgitate or introduce anything in his mouth.  Collins at ¶ 26.  Therefore, it was concluded the prosecution met its burden to show the tests were done in accordance with the then-applicable SLD regulations.

As noted in Collins, the SLD regulations now in effect refer to the twenty-minute waiting period as a time when “the subject has not had anything to eat, drink or smoke for at least 20 minutes prior to the collection of the first breath sample.”  Collins at ¶ 24.  Thus, the phrase “under continuous observation for at least 20 minutes” has been removed from the SLD regulations altogether.  Rule 7.33.2.12(B)(1).  In short, officers need not affirmatively inspect a driver’s mouth in order to have a valid deprivation/observation period, but it is an extra precaution officers can, and often still, take with minimal effort in order to ensure an empty oral cavity prior to breath testing. 

The Deprivation/Observation is in the Details

So, is the required minimum twenty-minute waiting period before breath alcohol testing can occur a deprivation or an observation period?  In essence, it really is both a deprivation and an observation period.  Specifically, the officer has to ensure a driver is “deprived” in that he does not have anything to eat, drink or smoke for a minimum of twenty minutes.  That realistically requires maintaining some sort of visual observation of the driver either ideally for all of the time but certainly for the overwhelming majority of those minimum of twenty minutes. 

Therefore, the officer will often times testify that upon arrest, when the driver was patted down for safety reasons it was found that he had no liquids, food, gum or candy in his possession.  The officer may also specify the driver was handcuffed behind her back, thereby limiting her ability to reach into her pockets to place anything she might have there in her mouth.  Officers may also specify the back seat of their patrol units contained nothing the driver could have placed in his mouth.  The officer may also testify that periodically during transport, from the arrest location to the breath testing location, she glanced back to visually check on the driver.  Officers might still testify to taking affirmative action to check the driver’s mouth.  Officers might also specify the times they were not in visual contact with the driver were extremely minimal amounts of time, seconds perhaps, and that upon return to the driver’s visual presence, there was no indication of any regurgitating or other actions that are of concern during the deprivation/observation.  Examples of times when an officer might not be in visual contact with the driver include when the officer deals with the tow truck driver or exits his or her police unit and goes around to open the driver’s door in order to have him exit.  Finally, officers might specify that a holding cell the driver was placed in before testing still allowed visual observation of the driver and there were no signs seen, or heard, of the driver regurgitating or vomiting at any time prior to breath testing. 

Another critical factor in the deprivation/observation period is how the officers ensured that the period was at least the minimum of the required twenty minutes.  Did they note those important beginning and ending times in their report, along with what time piece(s) were used to keep track of the time?  Ideally, the use of the officer’s personal watch for beginning and ending times for the deprivation/observation is best rather than relying on two different, and possibly unsynchronized, time pieces.  This is especially so in situations where the deprivation/observation is testified to as being exactly twenty minutes or twenty-one minutes.  If no specific times were provided by the officer, can the prosecution show the required minimum twenty minutes from circumstantial evidence, such as the time of the arrest in comparison to the time of the first breath sample introduction?  The deprivation/observation can be longer than the required minimum twenty-minutes.  Often times it necessarily is, in a large state like New Mexico.  In those situations, the officer must either prove to the court’s satisfaction that the driver was deprived and observed for that entire duration of time, in accordance with the SLD Regulations, or, at a minimum, for at least the twenty-minutes immediately before breath samples were provided.  Finally, keep in mind the requirement for a minimum twenty minute deprivation/observation period applies only to breath alcohol testing, not blood sample collection.              

3.6.2 Breath Testing Machine Calibration

Once the officer has completed his or her deprivation/observation of the driver, the actual breath testing can begin.  A critical component of a valid breath test is ensuring the breath testing equipment has been properly maintained by both SLD and the specific law enforcement agency.  The officer must also ensure the breath testing equipment is functioning properly during the driver’s submission of samples.  What follows is a discussion of the methods of checking the functioning of testing equipment and case law on those processes.

SLD Annual Certification of Breath Testing Machines

SLD Rule 7.33.2.11 requires that all machines used by law enforcements agencies must be certified by SLD before they are put into use.  The machines must be inspected annually at SLD.  “SLD certification” refers to the testing and approval process SLD must conduct throughout the year on each breath testing machine to ensure it is working properly.
 
In State v. Onsurez, 2002-NMCA-082, ¶ 13, the Court of Appeals held that where a driver properly raises and preserves (brings to the attention of the trial court) an objection to the prosecution’s efforts to introduce into evidence the breath alcohol test results, the prosecution must show the breath testing equipment had been certified by SLD.  “Foundation” again refers to the necessary things that must be shown by the prosecution to the trial court’s satisfaction before evidence can be admitted for consideration by the court.  The court also held that another foundational requirement for the admission of breath test results is the prosecution showing that the breath test results are analyzed by the testing equipment using the measuring ratio of “grams of alcohol per 210 liters of breath.”  Onsurez at ¶¶ 16, 19.  That foundational requirement can be met by the prosecution having the testing officer testify to the measuring ratio.  Alternatively, some models of breath testing equipment will include reference to that measuring ratio on the print out of the test results, located adjacent to the specific test scores, and that can be brought to the attention of the court by either the prosecution or officer. 

Later, in Garza v. State, Taxation and Revenue Department, MVD, 2004-NMCA-061, the court held the foundational burden of proving SLD certification of breath testing equipment could be satisfied by the state in one of three ways:  (1) by presenting an affidavit to that effect; (2) by an “appropriately qualified witness” testifying to such certification; or (3) by providing proof of annual SLD certification records.  Garza at ¶ 15. 

In State v. Lizzol, No. 25,794 (August 28, 2006) (appeal pending), stemming from a criminal court DWI case, the Court of Appeals reaffirmed its holding and analysis in both the Garza and Onsurez opinions.  The court stated “[u]pon proper challenge to certification, the State will be required to provide a reasonable quantum of direct admissible evidence going to the issue” of SLD certification of breath testing equipment.  Lizzol at ¶ 39.  The court further stated that “[t]estimony that “a certificate was attached” and the “machine seemed to work properly” is not enough” to meet the foundational requirement.  Lizzol at ¶ 39.  In deciding that such testimony was insufficient to meet the foundational burden to show SLD certification of breath testing equipment, the appellate court specifically rejected the prosecution’s argument that officer testimony of that sort was a valid means of providing the foundation.  Lizzol at ¶ 35.  Finally, the court stopped short of specifically defining what foundational requirements are required to demonstrate compliance with SLD certification regulations, instead stating that to provide such answers would inevitably lead the court to the area of advisory opinions.  Lizzol at ¶ 34.            

The basic analysis in Lizzol is that the issue of whether the breath alcohol testing equipment was functioning properly and whether the equipment performed proper diagnostic and calibration checks during an actual breath test is entirely separate from the issue of SLD certification.  While an officer can properly testify to the diagnostic and calibration checks, mere reference by an officer to an attached SLD certification sticker on the equipment is an insufficient means of meeting the SLD foundational burden. 

When a defendant raises an SLD foundational objection to the proposed introduction of breath alcohol test results, it is the prosecution’s responsibility and burden to determine how it is going to attempt to prove SLD certification of the testing equipment.  Typically, the prosecution will attempt to introduce into evidence a copy of the SLD certification certificate for the particular breath testing machine in question.  Regardless of how the prosecution attempts to meet the SLD certification burden, the court must determine whether the evidence is admissible and relevant to the certification issue, the same process it would undergo when dealing with the proposed introduction of any other evidence. 

Keep in mind that, under Lizzol and Onsurez, the prosecution’s foundational requirement to show SLD certification of breath testing equipment and the specific measuring ratio formula only come into play if the driver raises such specific objections (arguments) in response to the proposed introduction of breath test results.  If such objections are made, the prosecution will typically attempt to introduce into evidence as a public record or report the annual certification certificate, produced and issued by SLD following a breath testing machine having passed its certification process.  The SLD “annual certification certificate” is an actual one page document, prepared and issued for each individual breath testing machine.  The certificate makes reference to the breath machine by its unique and individualized serial number.  The date of the driver’s breath testing must fall within the one-year certification period referenced in the SLD annual certification certificate in order to be valid.  The prosecution also can respond to the foundational objections by attempting to introduce into evidence the testimony of a qualified SLD representative.         

Law Enforcement Agency Weekly Calibration of Breath Testing Machines

In addition to regular inspection and annual certification by SLD, the local law enforcement agency must perform a calibration check “at least once every seven calendar days.”  Rule 7.33.2.11(G)(3).  A “calibration check” involves the introduction into the breath testing equipment of prepared simulator solutions (liquid solutions which mimic breath alcohol concentrations of .08 and .16), running the machine, and ensuring the equipment measures the sample within the allowable tolerance.  These weekly calibration checks can be done only by “key operators.”  Key operators are police officers who receive special training by SLD on such procedures.  Most, if not all, law enforcement agencies have at least one officer who is also a key operator.  In order for a calibration check to be valid it must fall within the range of .070 and .090.  The results of these calibration tests must be noted in a written log that is kept with each machine.  In addition to the weekly calibration test results the log book documents the results of all the tests given to drivers on a particular machine. 

What if the Law Enforcement Agency Misses the Weekly Calibration Check Deadlines? 

The Court of Appeals addressed the issue of noncompliance with the required calibration tests in State v. Montoya, 1999-NMCA-001.  In Montoya, the driver was arrested and a breath test performed on May 25, 1997.  The written logs showed the breath machine had been calibrated on May 21, four days prior to the driver’s test.  However, the machine was not calibrated again until May 30th, five days after the driver’s test and, more importantly, nine days after the prior calibration test.  Therefore, it was two days beyond when it should have been performed.  Specifically, in accordance with the SLD regulations the second calibration check test should have been performed no later than May 28 to meet the seven day requirement. 

The question on appeal was whether the failure to comply with SLD weekly calibration requirements rendered the test results inadmissible.  Initially, the court noted there was no evidence the machine did not work properly.  Additionally, the driver’s test was given within seven days of the previous calibration check test (four days after that calibration check), and, when the next calibration test was given five days later, it showed the machine was working properly.  “[T]he calibration test results indicated that the machine was working properly both before and after the Defendant’s breatalyzer [sic] test. . . .  [A]ny deviation from the regulation that occurred after Defendant’s test does not compromise the purpose of the regulation and will be deemed to go to the weight of the evidence, not its admissibility.”  Montoya at ¶ 12. 

The fact that the driver’s test was given within seven days of the first calibration test, and that the second calibration, even though two days late, showed the machine was working properly were conclusive factors.  In other words, despite the late weekly calibration check after the driver’s test, the breath test results would still be allowed into evidence (admissible) since all of the calibration checks fell within the acceptable ranges.  However, the trial court could decide to place less significance (weight and effect) on the breath test results, based on the untimely calibration check after the driver’s tests. 

But, what if the second weekly calibration check had shown some problem with the machine?  For example, what if that second calibration was below .070 or above .090, and, therefore, outside of the acceptable range?  While the trial court’s decision regarding admissibility might have been the same, the end result of Mr. Montoya’s case may well have been different.  Assume the trial court determined the breath test results would still have been admissible into evidence.  However, the weight placed by the court on that evidence – how much credibility, significance and reliability it is given – would have perhaps been severely reduced given the improper second calibration check.  If the judge or jury felt the breath testing machine may not have been working properly when the driver’s test was performed, those results might have been discarded in the minds of those deciding whether the prosecution proved its case beyond a reasonable doubt.  This is what is meant by “admissibility subject to the weight of the evidence.”  This is also what is meant by the “weight and effect” a court might place on evidence before it.

What if the Breath Testing Equipment’s Self-Calibration Check is Problematic? 

Another case discussed a possible malfunctioning breath testing machine.  In State v. Christmas, 2002-NMCA-020, the court held that breath test results are not necessarily inadmissible when a problem occurs.  In that case, the breath testing machine’s internal calibration test, the one conducted by the machine in between a driver’s two breath samples, registered “.000.”  Those internal calibrations are also known as “self-calibrations.”  The self-calibration should have registered between .070 and .090, the acceptable range for calibration checks.  The key operator testified the machine had been calibrated within the weekly time specified by SLD and no problems were evident.  The officer who administered the breath tests testified the machine did not give a “fail” message indicating a problem with it.  Because there was no evidence the internal calibration affected the driver’s test results, the court held it was proper to admit the results and “any discrepancy in regard to the validity of Defendant's breathalyzer results went to the weight of the evidence to be considered by the jury.”  Christmas at ¶ 12.  In other words, the trial court could take into account the .000 calibration check, along with all other evidence before it on that issue, and determine what weight and effect to give the test results.  Depending on the court’s determination of what weight and effect to give to the test results, it then determines whether the prosecution proved its DWI case beyond a reasonable doubt. 

The Court of Appeals discussed a prior malfunction of the Intoxilyzer 5000 (a specific model of breath alcohol testing equipment) in State v. Collins, 2005-NMCA-044.  The breath machine used to test the driver had an erroneous test sample 16 days prior to his arrest.  The breath machine was sent to SLD for maintenance at which time a calibration test was performed which produced a result within the acceptable range (between .070 and .090).  This was done on January 24.  The court ruled that since the prosecution had shown the machine in question was calibrated and functioning properly within seven days of the driver’s test, the evidence of the machine’s earlier malfunctioning again went to the weight, and not the admissibility, of the test results.

In conclusion, both the Christmas and Collins cases provide that problems with the breath testing calibrations, whether it is the weekly key operator checks or the self-calibrations, do not go to the issue of admissibility of the breath test results into evidence.  Therefore, such breath test results can be admitted into evidence.  However, calibration problems might impact the weight and effect (the significance, the persuasiveness) the court decides it will place on a driver’s actual breath test results.

Who Can Testify to the Calibration of Breath Testing Machines? 

The issue of who is required to, or can, present testimony regarding the calibration of the breath testing equipment arose in State v. Smith, 1999-NMCA-154.  In that case, the officer who administered the driver’s test was not the key operator/officer who performed the required weekly calibrations.   This is common in many DWI cases:  most officers will be certified to administer tests on the breath machines, but each law enforcement agency will only have a few officers who are SLD-trained as key operators.  Again, key operators are persons who are trained to run the required weekly calibration checks on the breath testing equipment. 

The standard method of proving the machine was properly calibrated within the required time limits is for the prosecution to introduce into evidence the written log book entries that show all weekly calibrations, as well as all actual drivers’ breath tests performed on a given machine.  It is common to introduce only those pages of the log book that cover the weekly key operator calibration test done prior to the driver’s test, the driver’s test itself, and the weekly key operator calibration check done after the driver’s test. 

In Smith, the driver argued only the key operator can testify about the weekly calibration results, not the officer who gave the test.  The breath testing officer testified “the machine appeared to be in working order on the morning of [defendant’s test] . . . and that the log attached to the machine indicated that it had been calibrated within the previous seven days . . . . [Additionally, he] explained how the machine performed its self-calibration upon startup.”  Smith at ¶ 11.  The court held this testimony laid the proper foundation (the necessary prior steps) for admission of the test results into evidence for consideration by the judge.  Therefore, the key operator’s testimony was not necessary.  In summation, either key operators or the actual officer who administered a driver’s breath tests can testify about the weekly key operator calibration checks as shown in the written log books.

However, there are situations where only the key operator can testify about the breath testing equipment.  Specifically, if the log books do not show the required weekly calibrations or if the weekly calibrations shown indicate a problem with the machine, i.e. a calibration check not falling within the acceptable range (.070 to .090), the key operator must testify to what, if anything, has been done to ensure the machine was operating properly.  This is because it is solely the key operator’s responsibility to respond to problems with the weekly calibrations and their potential impact on the proper functioning of the testing equipment.  Without such testimony, the prosecution will not have laid a proper foundation and therefore the breath results should not be allowed into evidence.  If the key operator cannot resolve the problems, then SLD becomes responsible for diagnosing and repairing the equipment. 

Summary Regarding Foundational Matters for the Introduction of Breath Test Results

The general rule is that non-compliance with a regulation that goes to the accuracy of a breath test, such as the required minimum twenty-minute deprivation/observation period, makes those test results inadmissible.  Specifically, if the prosecution cannot show to the court’s satisfaction and beyond a reasonable doubt that a proper deprivation/observation was conducted, the driver’s breath test results cannot be allowed into evidence. 

Assuming a proper deprivation/observation period, important foundational factors to look for in the officer’s testimony and in the log books themselves are:  (1) whether the weekly key operator calibration tests were done within the required time period; (2) whether the testing officer was aware the weekly calibration tests had been done (usually by the officer’s review of the relevant entries in the log book); (3) whether the officer testified that based on his training and experience the breath testing machine appeared to be functioning properly during the driver’s tests; and (4) whether the machine performed its self-calibration test, done in between the driver’s two breath samples, and that indicated it was operating properly, meaning it fell within the acceptable ranges of .070 and .090. 

If there are any problems or irregularities in the above matters, the breath test results can still be allowed into evidence.  Then the court can decide what weight and effect (the significance, the persuasiveness) to place on the breath results in light of those problems and whether the prosecution has met its burden of proof.     

3.7    Requirements for a Valid Blood Test

3.7.1   Blood Sample Collection under the Implied Consent Act

Officers choose a blood sample rather than a breath sample for a variety of reasons.  Some officers believe a blood sample analysis is a more accurate test to determine a person’s alcohol concentration level.  Sometimes, and in light of time being of the essence in terms of sample collection, a medical facility might be closer to the location of the stop and arrest than the location of the breath testing equipment.  On occasion, blood sample collection might be the only alternative for the officer if the available breath testing equipment is broken or malfunctioning.  Finally, officers might not yet be certified to operate breath testing equipment or their certification as operators might have lapsed, thereby necessitating blood sample collection.  Remember, there is no requirement of a twenty-minute deprivation/observation period in blood test investigations. 

As with the collection of breath samples, the SLD Regulations provide the manner by which blood is to be collected.  See Rule 7.33.2.12.  That regulation requires the blood be drawn in the arresting officer’s presence utilizing the “venti-puncture” method and that that should occur within two hours of the arrest.  Rule 7.33.2.12(A)(1)(2).  “Venti-puncture” is the collection of blood from a vein, rather than from an artery, and is the safest, most convenient and most common method of collection.  However as discussed below, the Supreme Court has concluded the use of a method of blood collection other than venti-puncture did not render the blood analysis results inadmissible into evidence. 

In State v. Dedman, 2004-NMSC-037, the Supreme Court dealt with the issue of the foundation (the necessary steps the prosecution must show before the court’s admission of evidence) for the admission of blood sample test results in a DWI prosecution.  Regarding how blood samples are collected, the court examined the three different methods available and determined that the SLD requirement of the use of the venti-puncture method appeared to be based on the recognition that that method was the safest and most convenient way to draw blood from adults.  Dedman at ¶ 19.  Given the court’s belief that the purpose behind the venti-puncture requirement was not one that goes to the accuracy of the test results, but rather to the ease of collection, it held that “compliance with the “collection by venti-puncture” requirement is not a foundational requirement to the admissibility of blood alcohol reports.” Dedman at ¶ 21.  In other words, the use of a different type of blood sample collection method instead of venti-puncture does not render the blood results inadmissible into evidence.    

Following that holding, the court referred to its adoption of a new criminal form dealing with the reporting of blood sample alcohol analysis, which the court stated is intended to simplify the prosecution’s foundational burden which must be satisfied for the admission of the test results.  Dedman at ¶ 22.  For municipal, magistrate and metropolitan court, that form is Criminal Form 9-505.

The court next addressed the issue of whether this blood alcohol report form is admissible under the Rules of Evidence.  In its analysis, the court recognized that the blood sample alcohol reports are prepared in a non-adversarial laboratory setting and that SLD employees are not police officers or law enforcement personnel.  It further recognized a blood sample alcohol report is neither investigative nor prosecutorial and laboratory personnel follow a routine manner of preparation such that a certain level of trustworthiness is guaranteed.  Dedman at ¶ 24.  Thus, the court concluded a blood sample alcohol report is admissible in court as a public record exception to the general prohibitions against hearsay.  In other words, given that laboratories are guided by science and established, routine procedures for the analysis of blood samples, and the labs do not answer to either the prosecution or the police, there is a presumed level of trustworthiness in the blood sample test analysis results.  Therefore, the blood sample analysis report can be admitted into evidence without the presence or testimony of the blood sample analyst.

The court then addressed the issue of the right of the driver to question those persons involved with the collection and analysis of his blood sample.  Both the arresting officer, who observed the blood draw, and the toxicologist, who prepared the blood alcohol report, testified and therefore were available for cross-examination by the driver.  However, the nurse who actually drew the blood sample was not, prompting the driver to ask the trial court  not to admit into evidence the blood alcohol report.  This was based on an alleged violation of the Confrontation Clause given that the driver could not question the nurse.  The appellate court disagreed concluding the blood alcohol report was not testimonial evidence and the report “bore adequate indicia of reliability,” given that it squarely fell into the firmly rooted public records exception to the hearsay rule.  Dedman at ¶¶ 30, 37.  Finally, the court concluded the driver’s desire to cross-examine the nurse had little purpose, given that he wanted to find out from her whether the venti-puncture collection method was used.  As noted earlier, the court already determined the type of blood draw method used did not affect the accuracy of the results and therefore did not impact the admissibility of the blood alcohol report.  Dedman at ¶ 36.  Thus, the driver’s rights under the Confrontation Clause were not violated.  In other words, unless he can perhaps show otherwise, the driver does not have an absolute right to have the prosecution make available at trial each and every person involved in the blood specimen collection and analysis given the inherent trustworthiness in those processes.

The following are examples of a showing a motorist might make to the court which could result in the prosecution having to make available persons involved in the blood collection and analysis process.  In the first example, the driver advises the court the nurse who signed the blood alcohol analysis form was not the person who actually collected the sample.  Rather, the sample was collected by a new blood technician who was under the supervision of the nurse, and it is unclear whether the blood technician’s actions were observed by the nurse.  Another example is an attorney advising the court that she learned of some problems with blood sample mislabeling at the laboratory around the time the driver’s sample was analyzed.  In each of those examples, the matters brought to the court’s attention are such that they call into question the inherent trustworthiness in the collection and analysis of blood.  Therefore, the court may require the prosecution to make available for defense questioning persons otherwise not present at trial.         

The analysis and holdings in Dedman suggest the foundation for the admission of a blood alcohol report may be met by a law enforcement officer’s use, and the prosecution’s introduction of the Supreme Court-approved form dealing with the collection and analysis of blood samples.  The front of that form contains the information on the specific driver from which blood was drawn.  It has sections for completion by the arresting officer, the medical personnel who drew the blood and the technologist who conducted the testing of the blood sample.  The back side of that form contains pre-printed information detailing the standardized methods by which the samples were collected and analyzed.  Finally, the Dedman analysis does not require that every person involved in the collection and analysis of the blood sample be absolutely available at trial for questioning by the driver, given that the blood alcohol report is admissible as a public records document.  Rather, the only individual absolutely required to be present to testify is the law enforcement officer who observed the blood draw.          

3.7.2  Blood Sample Extracted for Medical Treatment

When a person is treated in a hospital emergency room, a blood sample is commonly collected and analyzed to determine the presence of alcohol or drugs in the person’s system.  This information is vital to physicians treating the person, so they can avoid any potentially lethal consequences resulting from administering further medications.  Can these tests be used in a criminal prosecution for DWI?  If there was no consent by the driver under the Implied Consent Act, they cannot.

In State v. Roper, 1996-NMCA-073, the driver, who had been in a motorcycle crash, was transported to a hospital.  While at the hospital and after the arrest, he refused to submit to a blood alcohol test.  Knowing the driver had been given a blood test as part of his treatment, the officer asked a nurse about the results.  She advised the officer that the driver’s blood alcohol content was .10.  The court analyzed this case under the Rule of Evidence regarding physician-patient privilege.  Rule 11-504(B) gives a patient the right to keep confidential “communications made for the purposes of diagnosis or treatment.” 

The main issue for the court was whether the blood test, administered as part of medical treatment, should be considered confidential information under the physician-patient privilege.  A blood test meets the definition of a “communication” under the Rules of Evidence because it provides treatment information to the doctor.  When a patient sees a physician for treatment, it is implied that any information given is meant to be confidential, and the patient’s interests are protected by keeping the information confidential.  The court held a blood test is protected under the physician-patient privilege and, therefore, inadmissible unless the patient waives the privilege.  Even if consent is given, the timing of the test may be an issue, as discussed later in his chapter in the relation-back section.

The court was “mindful of the severe drunk-driving problems in New Mexico” in its ruling, Roper at ¶ 17, but went on to conclude the prosecution had other options to keep impaired drivers from operating motor vehicles.  First, refusal to take a test under the Implied Consent Act can trigger a one-year administrative driver’s license revocation.  Roper at ¶ 18; §66-8-111(B).  Second, the prosecution can prove its case without the blood test results if it has enough other evidence of intoxication.  Roper at ¶ 18; §66-8-102(D)(3).  Thus, even though the results of the doctor’s blood tests are privileged information, the consequences of a driver’s refusal to voluntarily share those results with law enforcement and/or the prosecution may be serious enough to induce the driver to change his or her mind about not sharing the results.  In the alternative, the seriousness of the consequences for refusing to submit blood samples, under the Implied Consent Act, may induce the driver to change his or her mind and agree to submit to law enforcement’s request for a blood sample under the Act.

3.7.3 Search Warrant for Blood Test

Under the Implied Consent Act, when a driver refuses to submit to a breath and/or blood alcohol test, that is usually the end of the matter in terms of securing a voluntary submission to testing. The officer cannot "force" the driver to take the test if he or she does not wish to do so.  The officer notes the refusal and charges the motorist accordingly. 

However, there is an exception to this rule.  Section 66-8-111(A) states if an officer has probable cause to believe a motorist, while driving under the influence of alcohol or drugs, caused death or great bodily injury or committed a felony, then the officer can request a search warrant.  If, in response to an officer's written affidavit, a judge issues a search warrant, then the officer may have a blood sample forcibly taken from the driver.  Trial courts may be faced with defense motions or pretrial arguments challenging whether the warrant allowing for the collection of a blood sample was validly issued and asking the court not to allow the results into evidence.   

There is very little case law on §66-8-111(A).  In the case of an automobile crash involving death or great bodily harm, the officer need only comply with the requirements for a search warrant.  The officer must prove to the judge's satisfaction that death, great bodily harm, or another felony, resulted and that there is probable cause to believe the motorist was driving under the influence.  The probable cause necessary for the warrant may be shown through things such as the officer's observations of the motorist, any observations of driving, either by the officer or other witnesses, the presence of alcohol containers in the driver's vehicle and any other evidence of alleged impairment.  In these situations, officers should be mindful of the time delays between the actual time of driving versus the time of blood sample collection.  As discussed in the following section, chemical tests (breath and/or blood) should be done as close as possible to the actual time of the driving in order to avoid or minimize any "relation back" issues. 

An interesting issue was raised in State v. Duquette, 2000-NMCA-006, regarding whether allegedly committing felony DWI could be the basis, under § 66-8-111(A), for securing a search warrant on the basis of a felony allegedly being committed while being DWI.  In this case, the basis for the search warrant was law enforcement’s allegation that the driver had committed a felony while DWI.  The underlying felony law enforcement was relying on was the DWI itself.  The officer's affidavit for the search warrant alleged the motorist's driving record indicated three prior DWI offenses, thereby making the current charge a fourth DWI, a felony under New Mexico law.  The driver argued that with respect to a search warrant for felony DWI, an alleged felony DWI itself could not be the underlying felony.  Rather, the driver argued the underlying felony had to be any other felony crime other than felony DWI.  The Court of Appeals disagreed, concluding that since the legislature did not specifically list which felonies it meant, any felony could be used.  As long as the officer presented sufficient information in his or her affidavit for the search warrant that the current offense was a fourth or subsequent DWI (i.e. a felony DWI), that would be sufficient for the issuance of a search warrant under §66-8-111(A).

3.8 Time of Breath and/or Blood Testing and “Relation-Back” Evidence

The purpose of breath and/or blood testing (hereinafter referred to as “chemical testing” or “chemical tests” for this section) is to determine whether, at the time of driving, the motorist was under the influence of alcohol or drugs, which is what is statutorily required in order for the prosecution to secure a DWI conviction under §66-8-102.  It would be logical, then, that such testing be performed as close as possible to the time of driving.  However, delays between the motorist’s driving and chemical testing necessarily occur for a number of reasons.  Obviously, there is the time it takes law enforcement to conduct its DWI investigation.  Possibly having to wait for a tow truck might add to the delay.  Then there is the required minimum twenty-minute deprivation/observation period for breath alcohol test cases.  Finally, in a large state like New Mexico there may be significant delays resulting from the time it takes the officer to transport the driver from the location of the arrest to where the chemical testing is to take place.

3.8.1 What is “Relation-Back” Evidence?

“Relation-back” evidence is what the prosecution presents to the court to connect the driver’s chemical testing scores and/or the signs of intoxication the driver exhibited to the actual time of driving.  Specifically, when the prosecution is attempting to prove, beyond a reasonable doubt, a “per se” or “BAC” DWI (.08 or more for drivers age 21 and over, .04 for drivers while operating a commercial vehicle, or .16 or greater when the charge is for that method of committing aggravated DWI), the critical inquiry is how to show a connection between the chemical test results and the actual time of driving.  Where, for whatever reason, there is a significant delay between the driving and the motorist’s chemical test results, the prosecution must prove a “nexus” between those two.  That “nexus,” or connection, must be proven by evidence supporting the inference that a driver’s chemical testing scores, at the time of driving, were at the applicable per se alcohol level.  State v. Hughey, 2005-NMCA-114, ¶ 8. 

Any time the chemical tests are given significantly after the time of driving, it is important the prosecution have enough additional evidence to prove impairment aside from the results of the tests themselves.  Even if the delay between the actual time of driving and the motorist’s test results is minimal, the need for “relation-back” evidence might still be present if the driver’s chemical testing scores are right at, or just above, the .08 level, say, for example, 09 or .10.  The same applies if the driver is charged with .16, or greater, aggravated DWI and the test results are right at .16 or slightly higher.  Such corroborating (supporting) evidence is commonly referred to as “relation-back” evidence.  When an expert witness testifies on this matter, such testimony is referred to as “retrograde extrapolation” evidence, which means the computation back in time of the blood-alcohol level—this is the estimation of blood-alcohol level at the time of driving based on a chemical test result from some later time.  State v. Day, No. 25,290 (July 12, 2006) (appeal pending).  “Relation-back” evidence applies to both breath and blood test results.

3.8.2  How Long a Delay is Too Long?

So, how long is too long an interval between driving and chemical testing and how do those delays impact what types of relation-back evidence will be presented by the prosecution?  In Day, the New Mexico Court of Appeals dealt with the issue of relation-back evidence where a driver’s breath test result was .08 sixty-six minutes after the time of driving.  The driver was stopped for not having a license plate light rather than after an observation of improper driving, which might be indicative of DWI.  The driver was charged with a violation of §66-8-102(A) (“impaired to the slightest degree” DWI) or in the alternative, a violation of §66-8-102(C)(1) (“BAC” or “per se” DWI of .08 or greater) and was convicted of the latter charge.  The prosecution did not present expert testimony regarding relation-back, while the defense did present such testimony calling into question whether the driver could have been at the .08 level at the time of driving.  The court held that “absent scientific evidence of the alcohol absorption and elimination processes tied to the facts that must be considered in scientifically evaluating Defendant’s alcohol absorption rate, the jury could not have rationally inferred that Defendant had a .08 alcohol content at the time of driving based on a .08 breath test reading taken an hour and six minutes later.”  Day at ¶ 2.

On appeal in Day, the state argued that no nexus, or relation-back, evidence is required when a .08 test score is obtained within a reasonable period of time.  The court rejected that argument stating that when the delay in testing necessarily gives rise to questions requiring consideration of alcohol absorption and elimination in order to arrive at an earlier alcohol concentration level (BAC) beyond a reasonable doubt, the prosecution must show a nexus through appropriate relation-back evidence.  Day at ¶ 16.  The court further noted that the issue of the sufficiency of evidence of specific BAC levels calls for the discussion of the importance of, and necessity for, scientific analysis of the metabolism of alcohol in humans through the processes of absorption and elimination.  Day at ¶¶ 17, 18. 

However, the court stopped short of absolutely requiring the prosecution to present scientific relation-back evidence in order to prove its case beyond a reasonable doubt regarding the issue of a particular alcohol concentration level.  Day at ¶¶ 22, 26.  Therefore, it appears the prosecution can still rely on a driver’s “aberrant behavior” to have a jury rationally infer at least a .08 BAC level at the time of driving.  Day at ¶ 26.  However, the court noted that “[r]arely, if at all, can or should behavior replace scientific analysis as a basis to extrapolate backwards from a .08 BAC to a .08 BAC when an hour separates the two.”  Day at ¶ 26. 

3.8.3 What Types of “Relation-Back” Evidence Can Be Used by the Prosecution?

The rule in New Mexico is that the chemical testing results must be “sufficiently corroborated” (supported) “by additional evidence of aberrant behavior” (generally, physical signs of intoxication, actions and/or behaviors of the driver consistent with that of an intoxicated person) “on the part of the accused” if the prosecution is attempting to prove a per se DWI violation with a chemical test taken some time after the offense.  State v. Baldwin, 2001-NMCA-063, ¶ 22. 

New Mexico does not follow the rule, used in other states, that requires “relation back” evidence be solely through expert testimony.  New Mexico DWI legislation also does not provide that a chemical test, taken within a specific time, is prima facie evidence of an alcohol level at the time of the driving/arrest, as do some other states.  “Prima facie” means “such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted.”  Hyden v. Law Firm of McCormick, Forbes, Caraway & Tabor, 115 N.M. 159, 163 (Ct. App. 1993).  In other words, New Mexico does not follow a rule which provides that if chemical tests are secured within a certain period of time after driving, it is presumed the driver was at a certain alcohol level when they were driving.  

Therefore, in New Mexico courts “relation-back” evidence “might include a police officer’s observation of significant incriminating behavior on the part of the driver, or the evidence might include expert testimony relating the test result back in time to the time of driving.”  Baldwin at ¶ 2.  As previously discussed, expert testimony on this issue is known as “retrograde extrapolation” evidence.  Case law has suggested such evidence would be admissible if it meets the usual requirements for the admissibility of expert witness testimony.  Hughey at ¶ 8.  (See Section 2.4.1 of Chapter 2, for an overview of the admissibility of expert witness testimony)

In “impaired to the slightest degree” DWI prosecutions, under Section 66-8-102(A), the corroborating evidence of impairment may include the officer’s observations of the motorist’s driving, observations upon contact with the driver, performance on the field sobriety tests and any other evidence of the driver’s behavior.  This is why it is so important that officers, in accordance with their DWI training, document and testify to all of their observations of a driver up to the time the chemical tests are given.  If, as in Baldwin, this evidence is nonexistent, it may result in an acquittal on a “simple impairment” charge under §66-8-102(A).

State v. Martinez, 2002-NMCA-043, is an example of how an officer’s testimony can be sufficient relation-back evidence.  In that case, the Court of Appeals upheld the driver's conviction for DWI based on driving with a .08 alcohol level.  Although the driver was not tested until one and one-half hours after driving, his alcohol level was .09.  However, the driver said he drank 3 hours before driving, performed poorly on FSTs, acted drunk, put his hands and keys out of the window when he was stopped, and gave a false name.  All of this was sufficient evidence, under the totality of the evidence, to support the DWI conviction, despite the delayed testing.

3.8.4 Factors to Consider Regarding Delays Between Driving and  BAC Testing

In State v. Christmas, 2002-NMCA-020, the Supreme Court explained the factors to be considered in cases where there is a delay between the driving and chemical testing.  The following factors should be considered, on a sliding scale:  (1) the length of the delay between driving and testing; (2) the amount by which the chemical test results exceed the statutory limit; and (3) the existence of other corroborating (supporting) behavioral evidence.   Christmas at ¶ 24. 

In State v. Notah-Hunter, 2005-NMCA-074, ¶ 10, the court held “the evidentiary nexus requirement outlined in Baldwin for per se DWI cases should also apply to the crime of per se aggravated DWI.”  This nexus (connection) can be shown by, among other factors, the testimony of the police officer regarding the driver’s behavior at the time of the arrest as being consistent with intoxication at an aggravated level.  However, behavior alone will not be enough to show a nexus in a per se aggravated DWI because there was no testimony to show that behavior which tended to show intoxication was any different at the .16 level than it would be at the .08 level.  The court held that since the test was given almost one and one half hours after the arrest, more corroborating evidence was necessary.  The court overturned the conviction for aggravated DWI, but held there was sufficient evidence of intoxication to prove “impaired to the slightest degree” DWI and ordered the district court to enter judgment on that charge. 

3.8.5  The Use of Expert Witnesses for “Relation-Back” Evidence

In addition to the Day case previously discussed, two other cases have dealt with the use of expert witnesses to “extrapolate back” to show what the driver’s alcohol concentration level was at the time of driving.  In the first case, State v. Silago, 2005-NMCA-100, a blood test was not administered until six hours and twenty minutes after the driving.  (The driver was charged with vehicular homicide and refused a blood test so a search warrant was obtained.)  In a pre-trial evidentiary hearing, the prosecution called a forensic toxicologist from SLD who testified that, using retrograde extrapolation, the driver’s alcohol content at the time of the crash was between .08 and .14.  Silago at ¶ 9.  However, the trial court did not allow the testimony.  Specifically, the court concluded that because the driver’s alcohol content at the time of testing was below the legal limit and he passed FSTs, Baldwin and the other relevant cases prohibited such testimony.  Additionally, the trial court found that because the time between driving and testing was far longer than the delay in Baldwin, relation-back testimony was inadmissible. 

The Court of Appeals disagreed, holding that, in appropriate cases, retrograde extrapolation would be sufficient to prove the required nexus between the blood sample test result and the alcohol content at the time of driving.  The factors put forth in the prior cases were not cumulative, but could stand alone.  The time delay between the driving and the test is not the determining factor.  However, the court did state any expert witness evidence must be admissible under the standard in State v. Alberico, 116 N.M. 156 (1993).  Alberico, discussed more fully in Section 2.4.1, sets forth the requirements for admissibility of expert witness testimony. 

In the second case, decided the same day as Silago, the Court of Appeals upheld the trial court’s decision to disallow relation-back testimony.  In Hughey, 2005-NMCA-114, the driver was tested four hours after a crash.  Both the driver and the prosecution called expert witnesses to discuss retrograde extrapolation.  The defense expert testified there were many variables that could affect the calculation of the alcohol concentration level at the time of driving, such as food in the driver’s stomach, adrenaline, and body metabolism.  Hughey at ¶ 3.  The prosecution’s expert agreed with some of these assertions.  The trial court found the prosecution’s expert did not meet the Alberico standard of reliability and, therefore, that testimony would not be admissible.  The trial court held the prosecution’s expert was “so vague and general as to provide no real assistance to the trier of fact.”  Hughey at ¶ 11.  The Court of Appeals, while stating that retrograde extrapolation testimony may be admissible in the appropriate case, held that, in this case, the trial judge did not abuse his discretion in not allowing the testimony, thereby excluding evidence of the driver’s alcohol concentration level.

3.8.6 Conclusion on “Relation-Back” and Case Examples

In summary, for both “impaired to the slightest degree” and per se DWI prosecutions (.08 or greater or aggravated, .16 or greater), the prosecution must be prepared to provide evidence relating back the driver’s chemical test scores, and/or physical and behavioral indications of being under the influence, to the actual time of driving.  That evidence can be in the form of expert witness testimony and/or the officer’s observations about the driver’s alleged intoxication.  What evidence might be sufficient for the prosecution to meet its burden of showing beyond a reasonable doubt the driver was under the influence at actual the time of driving is a case-by-case determination by the court, depending on the facts of the case and the “relation-back” evidence brought before it.

Remember, the critical inquiry is whether the driver was DWI at the actual time of driving, not at the time of the chemical testing.  Here are two examples to demonstrate the importance of “relation-back evidence.
 
Example One:  Assume the driver had her last drink 15 minutes before the officer stopped her and one hour before her breath samples tested at .08.  The stop was for not having a valid registration sticker on the license plate.  The prosecution is charging a per se DWI, the .08 limit.  The prosecution will argue through relation-back evidence that the driver’s breath alcohol level was either right at .08 at the time of actual driving or higher, say .09 or .10.  This is based on the prosecution’s expert witness who testified to the fact that once a person stops drinking for a period of time the blood alcohol level will rise, then level out and then eventually drop as their body absorbs and processes the alcohol.  The driver’s attorney will argue that given her last drink being 15 minutes before the stop and that forty-five minutes later she tested right at .08, the prosecution cannot prove beyond a reasonable doubt that the driver was .08 at the actual time of driving.  Rather, defense counsel will argue the evidence shows that more likely the driver was operating her vehicle at a .06 or .07 level.  In other words, given the time delay in breath testing and the low breath score the driver reached the per se .08 level not when she was behind the wheel but only when she was in the officer’s custody.  Without persuasive relation-back evidence, such as expert witness retrograde extrapolation testimony and/or officer testimony regarding the signs of intoxication the driver exhibited, the prosecution may very well not meet its burden to show beyond a reasonable doubt the driver was at .08 at the actual time of driving.
            
Example Two:  Assume the prosecution is seeking a DWI conviction based on the driver’s blood sample analysis of .10.  The sample was collected from the person one hour and thirty minutes after the traffic stop.  Assume further the driver was stopped for failure to maintain traffic lane and the officer testified he observed the driver strike the curb twice.  Under those facts, as relation-back evidence, the prosecution will call the blood sample analyst to testify to how blood alcohol levels rise, eventually peak and then decline following the completion of drinking.  The prosecution will inquire of the analyst the average time frames for these biological processes and then elicit the witness’ opinion on impact of the time delay in the driver’s specific case on those processes.  As further relation-back evidence, the prosecution will attempt to focus the officer’s testimony on all of the signs of intoxication the driver physically exhibited, her admission to having consumed four drinks and the fact she was observed striking the curb, not once, but twice.  In other words, based on the officer’s observations and the driver’s admission, the circumstantial evidence also supports the conclusion the driver was under the per se influence of alcohol at the actual time of driving.  In its efforts to call into question the prosecution’s ability to prove the driver DWI beyond a reasonable doubt, defense counsel will rely on the officer’s testimony that the driver told him that she consumed her four drinks over a five hour period and finished the last drink three hours before he stopped her and that he believed her in that regard.  Defense counsel will question the officer to show that the area in which he observed the driver strike the curb twice was under construction, with narrowed traffic lanes, poor lighting and horrible, uneven pavement, and, in fact, the officer himself struck the curb once.  In its conclusion, the prosecution will argue the driver’s blood alcohol content at the time of the traffic stop was higher than the tested .10, based on the analyst’s testimony and the evidence of highly erratic driving.  In its questioning of the blood sample analyst, defense counsel will attempt to have him testify that matters such as the rising, peaking and falling of blood alcohol levels can very depending on factors such as individual biology and the time of alcohol consumption versus the time of blood collection.  In other words, the defense argument is that given the significant lapse of time from the driver’s consumption of alcohol to when she was stopped, the individual biological variables at play and the reasonable, non-alcohol-impaired explanation for the observed driving, the prosecution’s relation-back evidence is insufficient to meet the beyond a reasonable doubt standard.

In each of the above scenarios, it is the responsibility of the court to determine what weight and effect (the persuasiveness, the impact) to place on the prosecution’s relation-back evidence as it relates to its burden to show, beyond a reasonable doubt, that the drivers were DWI at the actual time of driving.      

3.9    Miranda Warnings and Right to Counsel at the Chemical Testing Stage

3.9.1 Miranda Warnings, Generally

Miranda warnings, arising out of the U.S. Supreme Court decision in Miranda v. Arizona, 384 U.S. 436 (1966), inform individuals of their constitutional right against self-incrimination and their constitutional right to assistance of counsel.  Miranda warnings must be given to an individual prior to actual custodial interrogation by a law enforcement officer, or its functional equivalent.  The “functional equivalent” of custodial interrogation is defined as “words or actions on the part of the police…that the police should know are reasonably likely to elicit an incriminating response from the suspect.”  State v. Pisio, 119 N.M. 252, 257 (Ct. App. 1994) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).   The warnings are intended to protect against any coercive effect of custodial police interrogation.  If the warnings are not given and the individual does not knowingly and voluntarily waive his or her rights, nothing the individual says during custodial interrogation can be used as evidence against him or her.  The individual’s statements can be used only if the Miranda warnings were given and the individual made a valid waiver of rights. 

Prior to custodial interrogation, a person “must be warned that he or she has the right to remain silent, that any statement he or she does make may be used as evidence against him or her, and that he or she has a right to the presence of an attorney, either retained or appointed.”  Miranda, 384 U.S. at 444.  Although the Supreme Court did not require that a specific script be followed, Miranda warnings (also called “Advice of Rights”) typically state:

• You have the right to remain silent. 
• Anything you say can be used against you in court. 
• You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer present with you while we ask you questions. 
• If you cannot afford a lawyer, one will be appointed at no cost to you before we ask you any questions, if that is your desire. 
• If you decide to answer questions now, without a lawyer present, you will still have the right to stop answering my questions at any time. You also have the right to stop answering my questions at any time until you talk to a lawyer for advice. 

See, e.g., State v. Rascon, 89 N.M. 254, 261 n. 4 (1976).   

As far back as 1984, the U.S. Supreme Court has held Miranda warnings are not required for a "routine traffic stop."  In order for the Miranda requirement to come into play, the defendant must "demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest.”  Berkemer v. McCarty, 468 U.S. 420, 441 (1984).  In discussing this case in Armijo v. State ex. rel. Transp. Dept., 105 N.M. 771 (Ct. App. 1987), the New Mexico Court of Appeals held even though a defendant suspected of DWI was asked to perform FSTs during a traffic stop, this did not constitute restraint comparable to formal arrest as required by Berkemer.  The defendant in Berkemer was found not to have been "in custody," thus eliminating the need to give Miranda warnings.  Citing other New Mexico cases, the court held:

• “The fact the motorist may temporarily feel he is not free to leave does not render him “in custody” for purposes of Miranda.”

• "The privilege against self-incrimination is not necessarily implicated whenever a person is compelled in some way to cooperate in developing evidence which may be used against him." 

• "[Q]uestions asked by officers during their investigations are not subject to Miranda warnings if the defendant is not in custody." 

• On-the-scene roadside questioning does not require advisement of Miranda rights. 

• "A field sobriety test, in and of itself, does not violate this privilege." 

• "Inculpatory statements made to police during the traffic stop, prior to formal arrest, are not the product of  'custodial interrogation.'" 

Armijo, 105 N.M. at 773-74 (internal quotations and citations omitted).

The important thing to remember is that Miranda warnings are not required prior to custodial arrest.  Once a defendant has been arrested, the warnings may be required.  Yet even this requirement is conditioned on two circumstances.  First, the person must be in custody; second, the person must be questioned.  Miranda, 384 U.S. 436.  Clearly, in a DWI case there is a custodial arrest after the officer has completed the preliminary investigation, including FSTs.  If, after this point, the officer asks the driver any questions, other than general identification questions (and Implied Consent questions discussed below), the Miranda warnings will be required or the driver’s statements will be inadmissible in court.  As discussed in the next section, confusion potentially sets in at this point in the DWI investigation.

3.9.2 Miranda Warnings and the Implied Consent Act

If an officer gives the Miranda warnings upon arrest, it could lead to contradictory and confusing information being given to the driver.  For example, under Miranda, the driver is told she does not have to make any statements and any statements made could be used against her in a court of law.  The driver is also told she has a right to counsel.  This is all generally true, but there are times when those rights are applicable in DWI cases and times when they are not.  The exceptions in DWI cases arise in reference to the Implied Consent Act.

As discussed earlier in this chapter, the Implied Consent Act requires an individual under arrest for DWI to submit to breath and/or blood testing to determine his or her alcohol content.  If the driver refuses to submit to the test(s), the administrative (driver’s license revocation) and criminal consequences are greater than if he or she had taken the test(s) and had an alcohol level over the legal limit.  Drivers have argued, so far unsuccessfully, that because of these increased penalties, they should have a right to consult with an attorney prior to deciding whether or not to submit to the breath and/or blood test(s).  Additionally, drivers have argued that because the breath and/or blood tests provide incriminating evidence against them, they should not be compelled to take the tests under the rules set forth in Miranda.  As discussed below, the New Mexico courts have ruled against drivers in both of these instances.

Miranda warnings are usually only necessary where there is evidence from the defendant that is testimonial or communicative in nature.  The mandatory submission of physical evidence is not protected by the constitutional protection against self-incrimination.  The United States Supreme Court in Schmerber v. California, 384 U.S. 757 (1966), held that “minor intrusions into an individual's body under stringently limited conditions” do not violate a person's constitutional right not to incriminate himself.  New Mexico courts have interpreted this holding to apply to blood and/or breath tests given under the Implied Consent Act.  State v. Myers, 88 N.M.16 (Ct. App. 1975).  Therefore, Miranda warnings are not required either prior to asking the driver to consent to, or prior to submitting to, a breath and/or blood test. 

3.9.3  Right to Counsel and the Implied Consent Act

The next question concerns the driver's right to consult with legal counsel prior to deciding whether to submit to a breath and/or blood test or before requesting an independent test, as provided for in the Implied Consent Act.  Here again, the New Mexico courts have ruled the constitutional protections afforded to criminal defendants do not apply at this stage of the proceedings.  In 1985, the United States Supreme Court, in dismissing an appeal from a Minnesota case, upheld the principle that there is no Sixth Amendment right to consult with counsel when deciding whether or not to take a breath or blood test.  Nyflot v. Minnesota Comm’r of Pub. Safety, 474 U.S. 1027 (1985) (mem.). 

The right to counsel, as interpreted by the courts, attaches either when there is custodial interrogation, or its functional equivalent, or when judicial proceedings begin.  As discussed previously, questions posed by officers to drivers regarding consent to submit to breath and/or blood test(s) do not amount to custodial interrogation.  Moreover, judicial proceedings are generally considered initiated at the point when formal charges are filed.  State v. Kanikaynar, 1997-NMCA-036.  Since formal charges have not yet been filed at the time the breath and/or blood test is administered, there is no right to consult with counsel when deciding whether or not to take the test(s).  Rather, drivers must make that decision for themselves. 

Another right to counsel issue arises during the period after the initial test and prior to a driver requesting an independent test.  This was the issue raised in State v. Sandoval, 101 N.M. 399 (Ct. App. 1984).  The court had to decide whether the time immediately following a breath test involved either the initiation of adversarial proceedings or was a "critical stage" in the proceedings, thereby requiring the assistance of counsel.  A “critical stage” is defined as one where "the government could abuse its power and potentially take advantage of the accused" in a way that cannot be repaired by counsel at trial.  Sandoval, 101 N.M. at 403 (citing United States v. Ash, 413 U.S. 300, 315 (1973)).  The Court of Appeals held the initiation of adversarial proceedings does not occur when the officer fills out the citation, but rather when the driver is "faced with the prosecutorial forces of organized society.”  Sandoval, 101 N.M. at 402 (quoting Kirby v. Illinois, 406 U.S. 682 (1972)).  Presumably, this refers to the time of arraignment, when the formal charges are filed with the court.  Thus, the time period after a breath test is given is not considered the initiation of adversarial proceedings.   The driver and legal counsel have ways at trial to call into question both the breath and/or blood test administered by the police and any failure to provide an independent test, if applicable.  Therefore, the independent test portion of DWI investigations is also not a critical stage and, therefore, no right to counsel exists at that time.

3.9.4  Practical Considerations

It can be confusing to a driver to be given Miranda rights upon arrest and then be told those rights do not apply to post-arrest procedures under the Implied Consent Act.  Consider this scenario:  The driver is arrested and told, "You have the right to remain silent, anything you say can and will be used against you in a court of law; you have the right to an attorney, if you cannot afford one, one will be provided for you."  Then at the police station, the driver is read the Implied Consent advisories.  When asked whether she consents to testing, the driver chooses to remain silent as she was just told she could under Miranda.  She then asks for an attorney, as she was just told is her right.  The arresting officer tells her that if she does not answer his question regarding submission to the test, it will be considered a refusal and the penalties will be more severe, and also that she does not have the right to a lawyer at this time.  Having first been told of two constitutional rights, the driver now is told exactly the opposite – and the consequences and potential confusion are significant.

What many experienced law enforcement officers do is avoid giving Miranda warnings altogether in DWI investigations and arrests.  In those situations, the officers make conscious efforts to refrain from engaging in custodial interrogation, or its functional equivalent, for the entirety of the DWI investigation.  If the officers do provide Miranda warnings, they sometimes wait until after the breath and/or blood test(s) have been completed.  Keep in mind that unless there is custodial interrogation, or its functional equivalent, the Miranda warnings are not necessary.  Many citizens are under the impression Miranda warnings are absolutely required upon placing a person under arrest and in handcuffs, since that is the scene played out in countless television programs and motion pictures.  While that may make for good drama, it simply is not a realistic portrayal of when Miranda warnings are required. 

Breath and/or blood testing, as provided for and contemplated under the Implied Consent Act, does not involve custodial interrogation.  Chemical testing (breath and/or blood), under the Implied Consent Act, does not occur at a “critical stage” or after commencement of adversarial proceedings, which would implicate the right to counsel.  Therefore, there is no need to give Miranda warnings at this time. 

3.10  Conclusion

Once an officer has placed a suspected DWI offender under arrest, certain formalities must be observed or the prosecution risks being unable to introduce potentially valuable evidence at trial.  The trial court must hold the officer to high standards in this regard and look for the following:

• Did the officer read the driver the Implied Consent advisories exactly as provided?  If the advisories were not read exactly as written, were they substantially the same?
• Is the evidence clear that the defendant understood these advisories? 

• If there is an allegation of refusal to take the breath and/or blood test(s), was the refusal made clear by the defendant’s words or actions?  Was the driver advised of the consequences of his or her refusal under the Implied Consent advisories?

• If the defendant changed his or her mind about refusing, did the change meet the criteria set forth in the Suazo case?

• Did the testing officer comply with the continuous minimum twenty-minute deprivation/observation period? (For breath testing cases only)  If not, the breath test results cannot be introduced into evidence.

• Is there sufficient evidence of breath testing equipment calibration, both the weekly key operator calibration checks and the self-calibration done by the testing equipment in between the driver’s two breath samples, to indicate that it was working properly?  If not, the test results can still be admitted into evidence, and the trial court will determine the impact of those problems or deficiencies in the calibration process on the weight and effect it will give to the specific breath test results.

• Was the defendant informed of the right to arrange for an independent test given by a technician or physician of the defendant’s choosing, the cost of which would be paid by law enforcement?  If the driver requested the independent test, was he or she provided with a reasonable opportunity to secure such a test?

• How much time elapsed between the driving and the breath and/or blood test(s)?  Taking into account that lapse of time, has the prosecution provided sufficient relation-back evidence to show beyond a reasonable doubt the driver was DWI at the actual time of driving?

• For DWI charged under §66-8-102(A) (“impaired to the slightest degree” or “simple impairment”):  Is there other evidence of impairment besides the breath and/or blood test?
• MOST IMPORTANT:  Is there proof beyond a reasonable doubt the defendant is guilty of the offense charged?