State v. Norman ( 2017 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 35,809
5 ISHMEL NORMAN,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Benjamin Chavez, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Santa Fe, NM
14 Josephine H. Ford, Assistant Public Defender
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VANZI, Chief Judge.
1 {1} Defendant appeals from the district court’s affirmance of the metropolitan
2 court’s conviction for driving while under the influence of intoxicating liquor (DWI).
3 We issued a calendar notice proposing to affirm. In response, Defendant filed a
4 memorandum in opposition, which we have duly considered. Unpersuaded, we affirm.
5 Probable Cause
6 {2} We turn first to Defendant’s continued contention that Officer Brown lacked
7 probable cause to arrest him based on the field sobriety tests conducted and other
8 evidence. [DS 42, MIO 1] In this Court’s notice of proposed disposition, we proposed
9 to adopt the district court’s memorandum opinion affirming the conviction. [CN 4]
10 {3} Defendant’s memorandum in opposition raises no new arguments with respect
11 to this issue apart from those that he made in his docketing statement [DS 42] and in
12 the statement of the issues he filed with the district court in his on-record appeal [RP
13 v.2/326-38]. In this Court’s notice of proposed disposition, we proposed to adopt this
14 portion of the district court’s thorough and well-reasoned memorandum opinion in
15 response to Defendant’s arguments. [CN 4-5; see also RP v.2/348-50] In his
16 memorandum in opposition, Defendant has failed to raise any new arguments or issues
17 to convince us to reconsider our proposed adoption of the district court’s
18 memorandum opinion with respect to this issue. As such, all of the arguments in
19 Defendant’s memorandum in opposition with respect to this issue have been addressed
20 by this Court in its notice of proposed disposition and/or the portion of the district
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1 court’s memorandum opinion this Court proposed to adopt in our notice of proposed
2 disposition, and we refer Defendant to the responses therein. [See v.2/348–50] We
3 therefore affirm.
4 Foundational Challenge to Admission of Breath Card
5 {4} Defendant continues to argue that the district court abused its discretion by
6 admitting the breath card without proper foundation because the State failed to
7 demonstrate strict compliance with the SLD accuracy-ensuring regulations for radio
8 frequency interference (RFI) testing. [MIO 3-5; DS 42] Our notice observed that strict
9 compliance with the regulation was not required because the language of the
10 regulation requires only that the instrument be evaluated for RFI interference, see
11 7.33.2.10 (B)(2)(b)(iii) NMAC, and further specifications are provided in the SOP.
12 [RP v.2/209] As such, even though the plain language of the standard operating
13 procedure (SOP) seems to require that a key operator test on multiple channels and
14 multiple frequencies, we observed that it would be contrary to the spirit of the
15 regulation to require a mechanistic adherence to every word of the SOP where
16 technology has changed significantly since the 1980s, and evidence was presented that
17 the frequency changes during the test even when a single channel is used. See
18 Martinez v. Cornejo, 2009-NMCA-011, ¶ 11, 146 N.M. 223, 208 P.3d 443 (explaining
19 that appellate courts “are permitted to depart from the plain meaning rule to avoid a
20 formalistic and mechanical statutory construction that would be absurd, unreasonable,
3
1 or contrary to the spirit of the statute” (internal quotation marks and citation omitted)).
2 {5} In response, Defendant’s memorandum in opposition makes two arguments.
3 First, Defendant argues that even though Wayne DeChano (the Albuquerque Police
4 Department (APD) key operator) explained his reasons for the way he conducts the
5 testing, he did so “only superficially.” [MIO 4] We remain unpersuaded. As our notice
6 observed, [CN 7-8] Mr. DeChano agreed that the SOP outlined the method by which
7 location RFI is to be checked. [RP v.2/346] Mr. DeChano explained that even though
8 the plain language of the SOP requires him to test multiple channels and multiple
9 frequencies, the SOP was written in the 1980s, when a single channel corresponded
10 to a single frequency. [RP v.2/346; DS 34] He testified that current technology enables
11 a single channel to capture multiple frequencies. [RP v.2/346; DS 34] Further, he
12 testified that changing the channel would not necessarily change the frequency and
13 that the frequencies change independently from the changing of the channel. [RP
14 v.2/346] Because the test on the IR-8000 machine used to conduct Defendant’s breath
15 test showed that the machine properly responded to the RFI introduced by Mr.
16 DeChano, Mr. DeChano testified that he complied with the SOP and the spirit of the
17 guidelines. [RP v.2/346; DS 34] The aforementioned testimony was sufficiently
18 detailed to permit the trial court to understand technology at the time the SOP was
19 developed, as compared to the current state of technology. [CN 8] Additionally,
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1 Defendant has not provided us with any authority to suggest that Mr. DeChano’s
2 testimony alone was insufficient. State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327
3 P.3d 1129 (“[A]ppellate courts will not consider an issue if no authority is cited in
4 support of the issue and that, given no cited authority, we assume no such authority
5 exists.”). Defendant’s memorandum in opposition further contends that “the APD
6 procedures were different from the [Bernalillo County Sheriff’s Office] procedures,
7 which ‘show how SLD procedures ought to be followed.’ ” [MIO 4] Defendant cites
8 to no authority in support of his contention and does not specify how these procedures
9 were different in any way; we decline to review this undeveloped argument. See State
10 v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (explaining that appellate courts are
11 under no obligation to review unclear or undeveloped arguments).
12 {6} Defendant additionally argues that the machine was unreliable when
13 Defendant’s breath test was conducted because “the machine has a margin of error of
14 .02, and the machine was checked several months before the date of [Defendant’s]
15 breath test[.]” [MIO 5] Again, Defendant provides no authority in support of his
16 contention, and we decline to review this undeveloped argument. See id. To the extent
17 Defendant generally attacks the breath alcohol test results on the basis that the results
18 have some inherent uncertainty, we disagree. See State v. Montoya, 2016-NMCA-079,
19 ¶¶ 13, 26-27, 382 P.3d 948 (holding that the defendants’ general argument that their
20 breath alcohol test “results [were] inadmissible due to principles of uncertainty
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1 inherent to all systems of forensic measurement” could be argued to the jury and went
2 to the weight rather than the admissibility of the evidence). We therefore affirm.
3 Sufficiency of the Evidence
4 {7} Defendant’s docketing statement contended that insufficient evidence was
5 presented to support his conviction for per se DWI. Our notice proposed to affirm,
6 observing that Defendant was challenging only the element requiring the State to
7 prove that he had a breath alcohol concentration at or above 0.08 within three hours
8 of driving. [CN 10] The breath test results in this case were admitted as 0.11 and 0.09,
9 which was greater than 0.08, and our notice further observed that we perceived no
10 foundational issue with the district court’s admission of the breath card. In response,
11 Defendant’s memorandum in opposition advances no new arguments with respect to
12 this issue. See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d
13 1003 (providing that a party responding to a summary calendar notice must come
14 forward and specifically point out errors of law and fact, and the repetition of earlier
15 arguments does not fulfill this requirement). We therefore affirm.
16 {8} Accordingly, for the reasons set forth in our notice of proposed disposition and
17 detailed above, we affirm.
18 {9} IT IS SO ORDERED.
19 __________________________________
20 LINDA M. VANZI, Chief Judge
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1 WE CONCUR:
2 _________________________________
3 JONATHAN B. SUTIN, Judge
4 _________________________________
5 JULIE J. VARGAS, Judge
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