State v. Myers , 88 N.M. 16 ( 1975 )

OPINION

LOPEZ, Judge.

Late in the evening of November 23, 1973, at approximately 11:00 p. m., Cheryl Lynn Hosier, the two-year-old child of Howard Bruce Hosier, was a passenger in the front seat of a car being driven by her father. Mr. Hosier was driving a 1968 Buick and was traveling east on Montgomery Boulevard in Albuquerque. The defendant was, at the same time, driving a 1967 Oldsmobile northbound on Wyoming Boulevard. The evidence is undisputed that the defendant ran a red light at the intersection of Montgomery and Wyoming and hit the Hosier vehicle on the passenger side. As a result of this impact, Cheryl Lynn Hosier was thrown from her vehicle and killed.

Defendant was convicted by jury of homicide by vehicle pursuant to § 64-22-1, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 2). This, section defines homicide by vehicle as “the killing of a human being in the unlawful operation of a motor vehicle.” The acts of unlawful operation relied upon by the state to support the conviction were: (1) driving under the influence of intoxicating liquor or drugs [a separate violation under § 64 — 22-2, N.M.S.A.1953 (2d Rep.Vol. 9, pt. 2)] and (2) reckless driving [also a separate violation under § 64-22-3, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 2)].

Defendant argues five points for reversal: (1) substantiality of the evidence; (2) violation of defendant’s right by procedures followed in testing his blood; (3) court error in refusing certain of defendant’s tendered jury instructions; (4) failure of the state to lay a proper foundation for the introduction of evidence relating to defendant’s blood alcohol content; and (5) failure of the state to lay a proper foundation for the introduction of evidence involving a “breathalizer” test.

(1) Substantiality of the evidence

Defendant asserts the evidence is insufficient as to three items: (a) the evidence of driving while under the influence of intoxicating liquor; (b) evidence of reckless driving; and (c) evidence of criminal intent. We disagree.

(a) Section 64-22-2, supra, states in part:

“It is unlawful for any person who is under the influence of an intoxicating liquor to drive or be in actual physical control of any vehicle within this state.”

Three different types of tests were conducted following defendant’s arrest to determine his degree of intoxication. The various tests revealed .05%, .10% and .12% alcohol in the defendant’s blood. These tests were made shortly after the defendant’s arrest.

The term “under the influence” has been interpreted to mean “ * * * that to the slightest degree defendant was less able, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle an automobile with safety to himself and the public.” State v. Dutchover, 85 N.M. 72, 509 P.2d 264 (Ct.App.1973).

Section 64-22-2.10, N.M.S.A. 1953 (2d Repl.Vol. 9) reads in part:

“If the blood of the person tested contains :

“ h= * *

“(3) one-tenth of one per cent [,10%] or more by weight of alcohol, it shall be presumed that the person was under the influence of intoxicating liquor.”

This language has been interpreted to mean that such a test result is prima facie proof, sufficient to go to the jury, that defendant was under the influence of intoxicating liquor. State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973). This case further notes that the evidence giving rise to the presumption is to be considered with other evidence in the case on the question of being under the influence and the presumption may be rebutted by such other evidence. 85 N.M. 208, 213, 510 P.2d 1079.

There was sufficient evidence for a jury to determine as a matter of fact that the defendant was so intoxicated as to be under the influence of alcohol, and thereby guilty of violating § 64-22-2, supra.

(b) Section 64 — 22-3, supra, states in part:

“Any person who drives any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others and without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property is guilty of reckless driving.”

The record shows that defendant was not driving at excessive speed for the area; nor was the defendant’s vehicle shown to be operating oddly. We do not depart from reasoning in State v. Harris, 41 N.M. 426, 70 P.2d 757 (1937), to the effect that a death caused by mere negligence, not amounting to a reckless, willful and wanton disregard of consequences to others, lays no foundation for criminal prosecution.

Nevertheless, this court reviews evidence in a conviction for homicide by vehicle in the light most favorable to the verdict. State v. Trujillo, supra; State v. Dutchover, supra. We will not attempt to substitute our view of the facts for that of the jury. And while we agree that the mere running of a red light would not, alone, constitute reckless driving, the circumstances of intoxication attending this act might reasonably lead a jury to a finding of recklessness. There is substantial evidence on the record to indicate that the defendant was either intoxicated or under the influence of alcohol at the time of the accident.

As was stated in State v. Sisneros, 42 N.M. 500, 507-8, 82 P.2d 274, 278 (1938), the act of a person who drives an automobile on the highway in an intoxicated condition “may be such willful, wanton and criminal negligence and disregard for the safety and lives of others, as that a jury would be warranted in finding him guilty of manslaughter if his operation of the automobile while intoxicated is the proximate cause of the death of another.”

There is evidence that defendant, while driving “under the influence,” caused an accident; that Cheryl Lynn suffered injuries in the accident; and that Cheryl Lynn died from those injuries. This is substantial evidence of proximate cause. State v. Dutchover, supra.

There is substantial evidence, therefore, of reckless driving.

(c) Defendant next argues that he lacked the requisite criminal intent. “ * * * [Cjriminal intent, a mental state of conscious wrongdoing, is a necessary element of [homicide by vehicle] and one which must be proven.” State v. Jordan, 83 N.M. 571, 494 P.2d 984 (Ct.App.1972). There is really no conflict since the jury was adequately instructed on the element of criminal intent:

“* * * Voluntarily driving a vehicle while under the influence is an act mal-um in se and this action is substantial evidence of criminal intent.” State v. Dutchover, supra.

Since the jury could have found, under part (a), supra, that the defendant was driving while under the influence, it is also possible for the jury to have concluded that defendant possessed the requisite intent to commit homicide by vehicle.

(2) Blood testing procedures

Defendant contends that the procedures followed in the extracting of his blood violated his rights as guaranteed (a) by statute and (b) by state and federal constitutions.

(a) Section 64-22-2.9(B), N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 2), states:

“B. The person tested shall be given an opportunity to arrange for a physician, licensed professional or practical nurse, or laboratory technician or technologist who is employed by a hospital or physician, of his own choosing to perform a chemical test in addition to any test performed at the direction of a law enforcement officer.”

Defendant argues that this section entitles him, first of all, to have a test made, by a person of his choice, using the same sample extracted from his body. Defendant further claims that a denial of this opportunity, for whatever reason, renders the state’s results inadmissible. It should be noted at this point that the sample was exhausted by the state in the conduct of its tests, so that no part of it remained for the defendant to test.

The court will not adopt a construction of a statute which will lead to unreasonable results. State v. Trujillo, supra. The record shows neither intent on the part of the state to destroy evidence nor any negligence by the state since all the blood was used in the tests conducted. The statute cannot insulate defendant “against the ‘slings and arrows of outrageous fortune’, which may strike anyone at any time and are unfortunately incidental to life itself.” United States v. Pate, 318 F.2d 559 (7th Cir. 1963); Nunn v. Cupp, 15 Or.App. 212, 515 P.2d 421 (1973).

We conclude that the results of the state’s tests were admissible regardless of the fact that defendant had no opportunity to test the same sample.

(b) The second, and more serious, argument under Point 2, concerns the constitutional application of the phrase “shall be given” as it appears in § 64-22-2.9(B), supra. This language is mandatory on its face. Defendant would have us read this to say that the arresting officer or other administrator of the proposed blood test must warn defendant of his right to have additional tests performed by any qualified person of his choosing. The state argues that a person is presumed to know the law and has no right to such a warning. Compare Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966). Neither position seems entirely accurate in this situation.

The record shows that the defendant was given no warning concerning the consequences of refusing a blood test. The statute does not expressly require that such warnings be given. On the other hand, the practice in New Mexico since the time of defendant’s arrest appears, again from the record, to be to give such a warning.

New Mexico’s statute does not expressly instruct the police or the test administrator to warn the suspect. There is no overriding constitutional requirement that it must be so construed. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, (1966). Further, New Mexico follows that line of reasoning which requires explicit Miranda-type warnings only in situations of either testimonial or communicative evidence. State v. Mordecai, 83 N.M. 208, 490 P.2d 466 (Ct.App.1971). No warning provision is needed in statutes of a state where the courts interpret the self-incrimination privilege as giving no protection against compulsory physical evidence. Schmerber v. California, supra. Since New Mexico has consistently excluded physical evidence from the scope of the protection, it follows that an accused has no constitutional right to the warnings sought.

We note that defendant only impliedly argues the Fifth Amendment privilege against self-incrimination. To that end, we hold that there is no statutory provision under which defendant could exclude the evidence obtained in the contested blood test. We further hold that there is no constitutional reason, either state or federal, which confers upon the accused a right to be expressly told that he has an opportunity, under § 64-22-2.9, supra, to have additional tests performed by any qualified person of his choosing.

Nevertheless, as the court said in Schmerber v. California, supra:

“ * * * we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.”

See also Justice Douglas’ dissent in Schmerber, 384 U.S. at 778, 86 S.Ct. 1826, 16 L.Ed.2d 908, supra.

(3) Instructions

Defendant contends that he should have been allowed (a) two instructions on the relevance of character evidence, and (b) one instruction allowing the jury to consider contributory negligence as a factor in determining proximate cause.

(a) The defendant cites State v. McKnight, 21 N.M. 14, 153 P. 76 (1915), and State v. Burkett, 30 N.M. 382, 234 P. 681 (1925), for the proposition that he was entitled to instructions on the relevance of character evidence if there were evidence in the record to support it. Defendant’s former wife testified that he did not drink often during their marriage, and that when he did, he did not drink to excess.

While we agree with the general proposition presented, State v. McKnight, supra, concerns the admissibility evidence, a point not here in dispute. In State v. Burkett, supra, the court ruled against another defendant on nearly identical instructions. We believe the defendant has misconstrued the holding in State v. Burkett, supra, and we hold, as did that court, that to give defendant’s requested instructions would only have caused the court to comment upon the weight of the evidence. It is also noted that the court in the case at bar did admit the proffered evidence and did instruct the jury on the weight to be given all evidence, in general.

(b) Because Mr. Hosier testified that Cheryl Lynn was not wearing a seat belt at the time of the accident, defendant requested an instruction that contributory negligence of another can be considered in determining the proximate cause of death. Rules concerning contributory negligence have no application to homicide cases. State v. Romero, 69 N.M. 187, 365 P.2d 58 (1961).

Furthermore, the jury was adequately instructed regarding the necessity of finding proximate cause. As in part (a) of this Point (3), we hold that the court instructed “ . . . the jury upon all questions of law necessary for guidance in returning a verdict.” See § 41-23-41 (a), N.M.S.A. 1953 (2d Repl.Vol. 6, Supp.1973). [As to proximate cause, see supra section (1) (b) of this opinion.]

(4) Confrontation of a witness

Defendant next contends that he was denied due process in that he was not able to adequately question the accuracy of the machine which tested his blood. The accuracy of the machine was supported on direct examination by a witness with a degree in business administration who conducted the test with the machine. The witness did not understand the full intricacies of the machine or the source of its claimed accuracy. The testimony was admitted only after objection by the defense as to the qualifications of the witness to testify.

It cannot be disputed that the defendant has the right to cross-examine and confront the witnesses against him. N.M. Const. Art. II, § 14; State v. Martin, 53 N.M. 413, 209 P.2d 525 (1949). A lay witness, not an expert, may testify generally as to what he observes. This capacity extends into those fields generally acknowledged as beyond the knowledge of the jury, where so-called “expertise” is required, if the witness is sufficiently trained and experienced. State v. Chavez, 77 N. M. 274, 421 P.2d 796 (1966); Pavlos v. Albuquerque National Bank, 82 N.M. 759, 487 P.2d 187 (Ct.App.1971).

The witness in this case was neither a chemist nor a medical expert. However, he had been trained to operate the test machine and had performed several hundred similar tests with it. “That he was not a specialist does not go to the admissibility of the evidence elicited from him nor to its sufficiency to support a finding based thereon, but rather to the weight to be accorded it.” Frederick v. Younger Van Lines, 74 N.M. 320, 329, 393 P.2d 438, 444 (1964). Further, defendant had ample opportunity to cross-examine the witness.

We hold that the defendant was afforded due process in that the accuracy of the testing machine was supported by lay testimony, subject to full rights of cross-examination by defendant.

(5) Foundation for results of breathalizer test

Defendant finally contends that it was error on the part of the trial court to allow Officer Cottle to testify concerning the results of a breathalizer test. It is clear from the record that the officer was not testifying as an expert. Determination of the admissibility of such testimony is within the sound discretion of the court. Garrett v. Howden, 73 N.M. 307, 387 P.2d 874 (1963). We find no abuse of discretion on the part of the trial judge.

We conclude that the trial court committed no error in any of the points urged by the defendant, and the judgment and sentence of that court are hereby affirmed.

It is so ordered.

HERNANDEZ, J., concurs. SUTIN, J., dissents.