State v. Teter

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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. 31,897
5 DAVID TETER,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Stan Whitaker, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Frechette & Associates, P.C.
13 Todd Hotchkiss
14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VIGIL, Judge.
18 Defendant-Appellant David Teter (Defendant) appeals his conviction for
19 driving while intoxicated (DWI). We issued a notice of proposed summary
1 disposition, proposing to uphold the conviction. Defendant has filed a memorandum
2 in opposition. After due consideration, we remain unpersuaded. We therefore affirm.
3 Defendant has raised a single issue, contending that the district court erred in
4 admitting the results of a breath-alcohol test (BAT) on grounds that the State failed
5 to lay an adequate foundation. [DS 13] Specifically, Defendant contends that the
6 State’s failure to affirmatively establish that the breath testing apparatus was situated
7 in an approved location should be regarded as a fatal deficiency.
8 As we observed in the notice of proposed summary disposition, the New
9 Mexico Supreme Court addressed the foundational requirements associated with the
10 admission of BAT results in the case of State v. Martinez, 2007-NMSC-025, 141
11 N.M. 713, 160 P.3d 894. After considering the relevant SLD regulations and
12 applicable precedent, the Supreme Court held that an officer’s testimony that he saw
13 a certification sticker issued by the SLD attached to the breath testing machine and
14 that the sticker indicated that the certification was current, is sufficient to satisfy
15 foundational requirements. Id. ¶ 23. In this case, Officer Carr provided precisely such
16 testimony. [DS 7] Thus, applying Martinez, an adequate foundation was laid.
17 To the extent that Defendant may contend that Martinez is not conclusive, we
18 disagree. As we previously explained, the Supreme Court explicitly acknowledged
19 the site approval requirement among other pertinent SLD regulations. Id. ¶ 11. We
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1 read Martinez to signify that competent evidence of current certification is sufficient
2 to establish a foundation for the admission of BAT test results relative to all of the
3 accuracy-ensuring regulations that the Supreme Court took into consideration,
4 including the regulation addressing site approval. Id. ¶ 12.
5 In his memorandum in opposition Defendant argues at length that the
6 certification process does not incorporate site approval, and as such, the State should
7 be required to present additional evidence relative to the location of the testing
8 apparatus in order to lay an adequate foundation for the admission of BAT results.
9 [MIO 2-12] We find Defendant’s argument to be an interesting one. However,
10 because we remain of the opinion that Martinez is controlling, we can only suggest
11 that Defendant’s argument would be better addressed to a higher tribunal. See
12 generally State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, ¶¶ 20-22, 135
13 N.M. 375, 89 P.3d 47 (observing that the Court of Appeals is bound by New Mexico
14 Supreme Court precedent).
15 Accordingly, for the reasons stated, we affirm.
16 IT IS SO ORDERED.
17 _______________________________
18 MICHAEL E. VIGIL, Judge
19 WE CONCUR:
20 _________________________________
21 JONATHAN B. SUTIN, Judge
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1 _________________________________
2 J. MILES HANISEE, Judge
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