May 11, 2009 – State of New Mexico v. Lamont Pickett, Jr., No. 27,938

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	May 11, 2009
NO. 27,938
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
LAMONT PICKETT, JR.,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Mark A. Macaron, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Santa Fe, NM
Josephine H. Ford, Assistant Appellate Defender
Albuquerque, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	NMSA 1978, Section 66-8-102(A) (2005) (amended 2008) provides that “[i]t
is unlawful for a person who is under the influence of intoxicating liquor to drive a
vehicle within this state.”
A person is under the influence of intoxicating liquor if “as a result of
drinking liquor [the driver] was less able to the slightest degree, either
mentally or physically, or both, to exercise the clear judgment and steady
hand necessary to handle a vehicle with safety to [the driver] and the
public.”
State v. Sanchez, 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d 446 (alterations in
original) (quoting UJI 14-4501 NMRA). “The foregoing standard has the shorthand
nomenclature of ‘impaired to the slightest degree.’” State v. Neal, 2008-NMCA-008,
¶ 21, 143 N.M. 341, 176 P.3d 330, cert. denied, 2008-NMCERT-001, 143 N.M. 397,
176 P.3d 1129.
{2} 	Defendant Lamont Pickett Jr. appeals the judgment of the district court
affirming his conviction in the metropolitan court of driving under the influence of
intoxicating liquor (DWI) in violation of Section 66-8-102(A). He contends that the
metropolitan court improperly admitted evidence of his blood alcohol content (BAC)
results in violation of Rule 11-401 NMRA and Rule 11-403 NMRA because they were
not relevant and because they were more prejudicial than probative as there was no

2
evidence relating the BAC results back to the time of driving. He further contends
that there was insufficient evidence to prove impairment beyond a reasonable doubt.
We hold that the BAC results were relevant to demonstrate that Defendant had alcohol
in his system and that their consideration by the metropolitan court judge was not
improper. We further hold that substantial evidence supports Defendant’s conviction.
We affirm.
BACKGROUND
{3} 	At Defendant’s bench trial in metropolitan court, the evidence showed that
Defendant was stopped after Albuquerque Police Officer Richard Locke observed him
weaving out of his lane, coming within a foot of colliding with another vehicle.
Defendant pulled over in a lawful manner and provided his driver’s license,
registration, and proof of insurance without difficulty. Officer Locke noticed an odor
of alcohol and that Defendant had blood-shot, watery eyes. Defendant admitted that
he had consumed alcohol. Officer Locke called Officer Bret White to continue the
investigation because Officer Locke was going off duty. 	Defendant told Officer
White that he had “two beers, maybe one,” and he agreed to take field sobriety tests.
{4} 	Officer White testified that the first test he administered was the horizontal gaze
nystagmus (HGN) test, during which Defendant continued to emit an odor of alcohol.

3
Officer White did not testify as to the results of the HGN test or give an opinion as to
whether Defendant had passed the test. During the one-leg-stand test, Defendant held
his foot up for the required thirty seconds and did not hop, but he swayed and lifted
his arms from his sides. These two factors were considered “clues” to Officer White
in his evaluation of Defendant’s driving performance, with two “clues” being a
significant number. During the instruction phase of the walk-and-turn test, Officer
White had to explain the turn four times before Defendant said he understood.
Defendant missed touching heel and toe on three of the first nine steps. After the first
nine steps, Defendant again asked for an explanation of the turn. Upon being told to
do it as it had been previously described by Officer White, however, Defendant
performed the turn correctly. Defendant held his arms away from his body during the
entire test. Officer White recorded five of eight possible “clues” during the walk-and-
turn test.
{5} 	Officer White placed Defendant under arrest and transported him to a police
substation. 	After the required twenty-minute observation period, Officer White
administered two breath tests on an Intoxilyzer 5000 machine. The first test indicated
a BAC of .07. The second test, three minutes later, indicated a BAC of .08.
{6} 	Defendant was charged under Section 66-8-102. 	The complaint did not

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distinguish between Section 66-8-102(A), the “impaired to the slightest degree” part
of the statute, and Section 66-8-102(C), the “per se” part of the statute. 	The latter
subsection makes it unlawful to drive with a BAC of .08 or more, whether or not
impaired driving has been shown. The metropolitan court judge convicted Defendant
under Section 66-8-102(A), stating, “I believe that given the State’s evidence, . . .
Defendant was impaired to the slightest degree, given the driving, the field sobriety
test, and the breath score combined together.” The district court affirmed Defendant’s
conviction on appeal.
ADMISSION OF BAC RESULTS
{7} 	Defendant challenges the admission of the BAC results under Rule 11-401 and
Rule 11-403. We review a trial court’s evidentiary ruling under an abuse of discretion
standard. State v. Martinez, 2007-NMSC-025, ¶ 7, 141 N.M. 713, 160 P.3d 894.
{8} 	At trial in the metropolitan court, Defendant moved to exclude the breath card
from the Intoxilyzer 5000 machine that showed Defendant’s BAC results of .07 and
.08, arguing that no evidence had been presented extrapolating the BAC results back
to the time of driving, as required by this Court’s then-recent decision in State v. Day,
2006-NMCA-124, 140 N.M. 544, 144 P.3d 103, rev’d, 2008-NMSC-007, 143 N.M.
359, 176 P.3d 1091. Defendant’s BAC was tested approximately forty-seven minutes

5
after the stop. Defendant argued that in the absence of extrapolation evidence, the
breath card was not relevant and was more prejudicial than probative.
{9} 	In Day, the defendant was convicted of per se DWI under Section 66-8-102(C).
Approximately one hour and six minutes after the defendant’s arrest, his BAC was
.08, thus raising the question of whether it had been .08 at the time of driving. Day,
2006-NMCA-124, ¶ 2. We held, and our Supreme Court agreed (although reversing
the result, 2008-NMSC-007, ¶ 26), that in a per se DWI case, the state must prove the
BAC at the time of driving through scientific retrograde extrapolation evidence. Day,
2006-NMCA-124, ¶¶ 26-28. We note that subsequent statutory amendment provides
that it is unlawful to drive with a BAC of .08 or higher as measured “within three
hours of driving the vehicle and the alcohol concentration results from alcohol
consumed before or while driving the vehicle.” Section 66-8-102(C)(1).
{10} 	Rule 11-402 NMRA declares relevant evidence to be admissible. Rule 11-401
defines relevant evidence as “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable.” Rule 11-403 provides: “Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice.”
Defendant argues in this appeal that his BAC results were not a relevant consideration

6
to his impairment under Section 66-8-102(A). He further argues that the admission
of the evidence was highly prejudicial because the metropolitan court judge relied on
the results in her guilty verdict. We do not agree.
{11} 	We first note the limited applicability of Day to this case. 	Day was a per se
case under Section 66-8-102(C). 	The BAC results were essential to the case. 	See
Day, 2006-NMCA-124, ¶¶ 28-29. Although the time of driving is also relevant under
the language of Section 66-8-102(A), only impairment, not any particular BAC, need
be shown. In this case, the metropolitan court found that the State did not prove a per
se case apparently because of the absence of relation back evidence.
{12} 	However, to prove a Section 66-8-102(A) violation, the State needed to prove
that Defendant “was less able to the slightest degree” to drive “as a result of drinking
liquor.” 	Sanchez, 2001-NMCA-109, ¶ 6 (internal quotation marks and citation
omitted). The BAC results are evidence that Defendant had alcohol in his system and,
regardless of the numerical BAC, tended to show that Defendant’s poor driving, as
stated in the testimony, was “a result of drinking liquor.” Cf. State v. Montoya, 2005-
NMCA-078, ¶ 21, 137 N.M. 713, 114 P.3d 393 (stating that evidence of alcohol in the
defendant’s system four hours after an accident was relevant evidence in a vehicular
homicide case). The BAC results were relevant evidence.

7
{13} 	Defendant argues that the BAC results were so prejudicial as to require the
metropolitan court to exclude them under the balancing test of Rule 11-403 and that
the judge improperly used the BAC results in her conclusion that Defendant was
impaired to the slightest degree. We disagree. The balancing test of Rule 11-403 is
designed to enable a trial judge to act as a gatekeeper to insulate the jury from
prejudice and confusion. 	There was no jury in this case. 	Moreover, when
admissibility of evidence is challenged at a bench trial, we generally “presume that a
judge is able to properly weigh the evidence, and thus the erroneous admission of
evidence in a bench trial is harmless unless it appears that the judge must have relied
upon the improper evidence in rendering a decision.” 	State v. Hernandez, 1999-
NMCA-105, ¶ 22, 127 N.M. 769, 987 P.2d 1156.
{14} 	The metropolitan court judge considered all of the evidence combined together,
including the BAC results. As a consequence, it could be argued that the metropolitan
court judge was prejudiced by that evidence. Yet, she was entitled to consider the
BAC results insofar as they were relevant as evidence of alcohol in Defendant’s
system that would indicate that Defendant’s poor driving was due to his consumption
of liquor. The dissent stresses that the metropolitan court judge did not state that she
relied on the BAC results to conclude that Defendant had consumed alcohol and

8
further asserts that the presence of alcohol in Defendant’s system was not an issue in
this case, in part because Defendant had admitted to drinking. 	However, the
metropolitan court judge did not specify that she relied on Defendant’s statements
about consuming alcohol. She based her finding of guilt on three express aspects of
the State’s evidence: 	Defendant’s driving, the field sobriety tests, and the BAC
results. Of these, only the BAC results directly indicate Defendant’s consumption of
alcohol.
{15} 	While the metropolitan court judge was not permitted to relate the BAC results
back to the time of driving to find a particular level of blood alcohol at that time, she
did not do so. Indeed, the metropolitan court judge specifically found that there was
no per se violation. Therefore, even though the metropolitan court judge considered
the BAC results along with the other evidence, there is no indication that she “must
have” considered the BAC results in an inappropriate way. See id. The metropolitan
court judge did not abuse her discretion in admitting the BAC results because she did
not inappropriately use the results in her ruling. Cf. Montoya, 2005-NMCA-078, ¶¶
18, 21-22 (expressing concern in a vehicular homicide case that a jury would
improperly use a BAC score that had been taken four hours after the accident and,
therefore, only allowing evidence that the defendant had some amount of alcohol in

9
his blood).
SUFFICIENCY OF THE EVIDENCE
{16} 	Defendant also makes several arguments concerning the sufficiency of the
evidence. “[T]he test to determine the sufficiency of evidence in New Mexico . . . is
whether substantial evidence of either a direct or circumstantial nature exists to
support a verdict of guilt beyond a reasonable doubt with respect to every element
essential to a conviction.” State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319
(1988). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” State v. Wildgrube, 2003-NMCA-108,
¶ 3, 134 N.M. 262, 75 P.3d 862 (internal quotation marks and citation omitted).
{17} 	To convict Defendant, the State needed to prove that as a result of Defendant
drinking alcohol, he “was less able to the slightest degree” to safely handle a vehicle.
Sanchez, 2001-NMCA-109, ¶ 6 (internal quotation marks and citation omitted).
Officer Locke testified that Defendant was driving. 	His testimony that he saw
Defendant weave out of his lane and come within a foot of colliding with another
vehicle provided evidence that Defendant “was less able to the slightest degree . . . to
exercise the clear judgment and steady hand necessary to handle a vehicle with
safety.” Id. (internal quotation marks and citation omitted). The breath tests, without

10
any attributed numerical result, showed that Defendant had alcohol in his system. See
Montoya, 2005-NMCA-078, ¶ 18. Although not included in the metropolitan court
judge’s ruling, additional evidence that Defendant’s poor driving was a result of
drinking liquor included testimony that he had admitted drinking beer and Officer
Locke had noticed an odor of alcohol when he stopped Defendant.
{18} 	Defendant argues that inconsistencies between the testimonies of Officer Locke,
Officer White, and Defendant’s passenger undermine Officer Locke’s testimony.
However, in making this argument, Defendant is asking us to re-weigh the evidence
and resolve the inconsistencies in his favor. On appellate review, we may not weigh
the evidence or substitute our judgement for that of the factfinder. Sutphin, 107 N.M.
at 131, 753 P.2d at 1319. We view the evidence in the light most favorable to the
prevailing party, resolving all conflicts in favor of the verdict. Id.
{19} 	Defendant also argues that Officer White’s testimony about the field sobriety
tests was “lay testimony cloaked in scientific terminology” and thus not evidence
supporting Defendant’s conviction. 	This argument is based on Officer White’s
purportedly having impermissibly testified, without being qualified as an expert,
beyond that which is allowed by Rule 11-701 NMRA. We note that Defendant does
not argue that the metropolitan court should not have allowed the testimony,

11
presumably because he did not object to the testimony when it was offered. Because
the State does not argue lack of preservation, we turn to Defendant’s argument.
{20} 	Rule 11-701 provides:
If the witness is not testifying as an expert, the witness’s testimony
in the form of opinions or inferences is limited to those opinions or
inferences which are
A. 	rationally based on the perception of the witness,
B. 	helpful to a clear understanding of the witness’s
testimony or the determination of a fact in issue, and
C. 	not based on scientific, technical or other specialized
knowledge within the scope of Rule 11-702 NMRA.
Defendant asserts that Officer White’s references to “clues” as indicated by his
observation of the tests goes beyond what a “normal person” would use to form an
opinion on whether a driver was impaired by alcohol. See State v. Luna, 92 N.M. 680,
684-85, 594 P.2d 340, 344-45 (Ct. App. 1979) (stating that “[t]he requirement of a
rational basis is satisfied if the opinion or inference is one which a normal person
would form on the basis of the observed facts”).
{21} 	Officer White’s testimony, however, included both information a normal person
would not likely be qualified to use in forming an opinion as well as information a
normal person would so use. In addition to testimony about the number of “clues”

12
Defendant exhibited in performing the one-leg-stand test and the walk-and-turn test,
Officer White also testified as to specific observations he made that might lead a
normal person to believe a driver was intoxicated. The latter included Defendant’s
swaying and failing to keep his arms at his side as instructed during the one-leg-stand
test and, during the walk-and-turn test, moving his foot to the side for balance, failing
to touch heel to toe on several steps, holding his arms away from his side, and
requesting that the instructions for the turn be repeated several times. 	Again, we
presume that the judge in a bench trial is able to properly weigh the evidence and that
erroneous admission of evidence is harmless “unless it appears that the judge must
have relied upon the improper evidence in rendering a decision.” Hernandez, 1999-
NMCA-105, ¶ 22. Given the balance problems Defendant exhibited during the tests
and his difficulty in following instructions, Officer White’s testimony about the
number of “clues” Defendant exhibited during the tests, even if erroneously admitted,
was not essential to the judge’s ruling.
{22} 	Finally, Defendant’s performance on the tests was only one of the three bases
recited by the metropolitan court judge for her ruling that Defendant was impaired,
and she specified that she based her ruling on the three factors “combined together.”

13
Thus, even if we were to agree that the three types of evidence, if considered
individually, might not support a finding of guilt beyond a reasonable doubt, we
conclude that the totality of the evidence was sufficient to convict Defendant.
CONCLUSION
{23} 	We affirm Defendant’s conviction.
{24} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge
I CONCUR:
______________________________
CYNTHIA A. FRY, Chief Judge
MICHAEL E. VIGIL, Judge (dissenting)

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Vigil, Judge (dissenting).
{25} 	The majority does not take into account that the crime of DWI can be
committed in different ways under Section 66-8-102, and that each has different,
discrete elements. When these differences are taken into account, it is apparent that
reversible error was committed by the metropolitan court judge. Since the majority
disagrees, I dissent.
{26} 	Section 66-8-102(C)(1) describes one way to commit the crime. In 2006, when
the complaint against Defendant was filed, this subsection in pertinent part provided:
“It is unlawful for a person who has an alcohol concentration of eight one hundredths
or more in his blood or breath to drive a vehicle within this state.” Day, 2008-NMSC-
007, ¶ 16 (internal quotation marks and citation omitted). I refer to this crime as “old
per se DWI.” In a prosecution alleging old per se DWI for breath, the elements are:
(1) “the defendant operated a motor vehicle,” and (2) “at that time, the defendant had
an alcohol concentration of eight one-hundredths (.08) grams or more in two hundred
ten liters of breath.” State v. Baldwin, 2001-NMCA-063, ¶ 7, 130 N.M. 705, 30 P.3d
394 (quoting the 2001 version of UJI 14-4503 NMRA) (emphasis added; brackets and
inapplicable language in brackets omitted). Thus, old per se DWI is a strict liability
crime. See State v. Harrison, 115 N.M. 73, 78, 846 P.2d 1082, 1087 (Ct. App. 1992)

15
(concluding that by enacting per se DWI, the Legislature intended to create a strict
liability offense). 	It is defined in terms of a specific BAC of .08, and whether the
driver is actually impaired is not an element of the offense. 	The Legislature has
determined that it is unacceptable for any person to drive with a BAC of .08,
regardless of how that level of alcohol affects any particular driver. This is why the
crime has been traditionally referred to as “per se” DWI. The variations of responses
which different people may exhibit to consuming identical dosages of alcohol under
similar conditions is not a consideration in whether a crime was committed. However,
an essential component of old per se DWI is having a BAC of .08 at the time of
driving, rather than when the test is later administered. Day, 2008-NMSC-007, ¶ 16.
Thus, we held in Day, (and our Supreme Court subsequently agreed, Day, 2008-
NMSC-007, ¶ 26) that the BAC at the time of driving must be proven by the State
through scientific retrograde extrapolation evidence. Day, 2006-NMCA-124, ¶¶ 26-
28.
{27} 	Apparently in response to the difficulty of having to prove BAC at the time of
driving, the Legislature amended Subsection (C)(1) in 2007, effective for cases
committed after April 1, 2007. Although not applicable to Defendant’s case, I discuss
this statute because the majority analysis suggests it relates to the issues raised by

16
Defendant. The statute now provides in pertinent part that it is unlawful for a person
to drive a vehicle within this state if the person has a BAC of .08 or more “within
three hours of driving the vehicle and the alcohol concentration results from alcohol
consumed before or while driving the vehicle.” 	2007 N.M. Laws, ch. 322, § 1,
codified at Section 66-8-102(C)(1) (2007). I refer to this crime as “new per se DWI.”
The elements for new per se DWI for breath are: 	(1) “[t]he defendant operated a
motor vehicle,” and (2) “[w]ithin three (3) hours of driving, the defendant had an
alcohol concentration of eight one-hundredths (.08) grams or more in two hundred ten
liters of breath, and the alcohol concentration resulted from alcohol consumed before
or while driving the vehicle.” UJI 14-4503. The crime is still a strict liability offense,
and whether the driver is actually impaired is not an element of the offense. In the
words of the committee commentary to UJI 14-4503, “It is not necessary for the state
to prove that the defendant was driving ‘while under the influence’ in order for the
jury to render a guilty verdict under [Section] 66-8-102(C) [2007].” 	The primary
difference between old per se DWI and new per se DWI is when the State must prove
that the driver had the prohibited BAC of .08. 	Under new per se DWI, it is not
necessary for the State to prove the prohibited BAC at the time of driving; it is
sufficient to prove the prohibited BAC within three hours of driving. This change

17
eliminates the requirement in most cases for the State to introduce scientific retrograde
extrapolation evidence to satisfy its burden of proof. See Day, 2008-NMSC-007, ¶¶
28-31 (discussing two situations under new per se DWI where scientific retrograde
extrapolation evidence is still necessary).
{28} 	Section 66-8-102(A) describes a third way of committing DWI. Besides old per
se DWI, this statute also applied at the time of Defendant’s trial. Under this statute,
“It is unlawful for a person who is under the influence of intoxicating liquor to drive
a vehicle within this state.” (Emphasis added.) This form of DWI, which I refer to
as “impaired DWI” requires that the State prove that the driver’s ability to drive was
impaired by the consumption of alcohol. The essential elements of impaired DWI are:
(1) “[t]he defendant operated a motor vehicle”; and (2) “[a]t the time, the defendant
was under the influence of intoxicating liquor, that is, as a result of drinking liquor the
defendant was less able to the slightest degree, either mentally or physically, or both,
to exercise the clear judgment and steady hand necessary to handle a vehicle with
safety to the person and the public.” 	UJI 14-4501. 	In this species of DWI, an
individual’s personal reaction to alcohol consumption determines whether a crime was
committed, irrespective of the BAC. See State v. Gutierrez, 1996-NMCA-001, ¶ 4,
121 N.M. 191, 909 P.2d 751 (noting that the defendant was not convicted of having

18
a particular BAC level, but of the more general offense of driving while intoxicated).
The variations of responses which different people exhibit to consuming identical
dosages of alcohol under similar conditions determines whether one person commits
DWI and another does not.
{29} 	In this case, the complaint does not refer to a particular subsection of the statute.
It simply alleges that Defendant violated Section 66-8-102. 	The BAC test was
administered to Defendant forty-seven minutes after he was stopped, and the results
were .07 and .08. Majority Opinion ¶ 8. As discussed, if the State intended to prove
a violation of old per se DWI, our Day opinion required the State to introduce
evidence at trial of Defendant’s BAC at the time of driving through scientific
retrograde extrapolation evidence. However, as Defendant alleged prior to trial, the
State had no such evidence. As such, the BAC test result was irrelevant to a charge
of old per se DWI. However, the metropolitan court judge did not find Defendant
guilty of old per se DWI.
{30} 	The metropolitan court judge found Defendant guilty of impaired DWI.
“[G]iven the driving, the field sobriety test, and the breath score combined together,”
the metropolitan court judge concluded the State proved that Defendant was “impaired
to the slightest degree.” Thus, the metropolitan court judge specifically stated that she

19
considered the BAC test results and relied upon them in finding Defendant guilty.
The metropolitan court judge did so without any evidence showing that the BAC
affected Defendant’s physiology and ability to drive. 	That is to say, there was no
evidence that the .07 and .08 test results specifically affected Defendant’s driving
behavior. A .03 BAC result would not have entitled Defendant to a directed verdict
regardless of his driving, and the .07 and .08 test results do not prove Defendant’s
under the influence DWI without scientific evidence of how those levels of alcohol
affected him specifically. 	Without proof, the metropolitan court judge improperly
assumed that the BAC results established that Defendant’s driving was impaired
because of alcohol consumption. Judges are not scientists. Without this essential link,
the BAC test results were not relevant.
{31} 	The majority concludes that the metropolitan court judge could properly
consider the BAC evidence insofar as it was relevant as evidence of alcohol in
Defendant’s system. 	Majority Opinion ¶ 14. 	There are two answers to this
supposition. First, the metropolitan court judge clearly stated she relied on the BAC
test results to conclude that Defendant was guilty of impaired DWI, and not for the
limited purpose of concluding that Defendant consumed alcohol. 	Second, as the
majority acknowledges, Officer Locke testified that when he stopped Defendant, he

20
admitted to Officer Locke that he had consumed alcohol. Majority Opinion ¶ 3. At
trial, Defendant did not deny drinking alcohol, and his passenger, who testified on
Defendant’s behalf, said that they both had consumed alcohol. Therefore, whether
Defendant had alcohol in his system was not at issue in the case. Compare Montoya,
2005-NMCA-078, ¶¶ 5, 18, 21 (concluding that the trial court properly excluded the
BAC test result itself from the jury’s consideration when the test result could not be
related to the time of driving, and properly allowed the jury to consider the BAC only
to show that alcohol was in the defendant’s system when the defendant was evasive
about the subject of drinking to police and passers-by who had stopped to give
assistance, and the defendant would not at first submit to a blood draw authorized by
a search warrant by adopting a fighting stance and telling the officers they would have
to “take [him] down”) (alteration in original).
{32} 	I respectfully disagree with the majority conclusion that the State established
that the BAC test results were relevant to the issues tried in this case. Rule 11-401
(defining “relevant evidence” as “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence”). They were not relevant to old
per se DWI because they were not related to the time of driving, and they were not

21
relevant to impaired DWI because the results were not related by evidence to whether
Defendant was in fact impaired. Moreover, they did not tend to prove a contested
issue in the case. All they did was corroborate Defendant’s admission, and evidence
he himself presented, that he did in fact consume alcohol. 	Not being relevant, the
BAC test results were not admissible into evidence. Rule 11-402 (“Evidence which
is not relevant is not admissible.”).
{33} 	Finally, I disagree with the majority that “there is no indication that [the
metropolitan court judge] ‘must have’ considered the breath score in an inappropriate
way.” 	Majority 	Opinion 	¶ 	15. 	The 	metropolitan 	court 	judge 	clearly 	and
unambiguously stated that she relied on the “breath score” to find Defendant guilty
of impaired DWI. The score itself was considered by the metropolitan court judge in
finding Defendant guilty of impaired DWI. Therefore, this is not a case in which we
can presume that the metropolitan court judge disregarded the improper evidence. See
State v. Gutierrez, 1996-NMCA-001, ¶ 4 (stating that in a bench trial for DWI, it can
be presumed that the trial court disregarded improper evidence, but when it appears
that the trial court must have relied on the improper evidence in reaching its decision,
its admission constitutes reversible error). 	Finally, even if the BAC evidence was
somehow relevant, it was so prejudicial that it should have been excluded under Rule

22
11-403. The BAC evidence clearly affected the metropolitan court judge’s decision.
She assumed, without evidence, that these BAC results proved Defendant’s driving
was impaired by alcohol. Impaired DWI requires more than such an assumption.
{34} 	The 	issues 	raised 	by 	this 	case 	could 	have 	been 	avoided 	if 	a 	pretrial
determination had been made that the case would be tried either as a per se DWI or
as an impaired DWI. This would have greatly streamlined the issues and simplified
the trial. Until prosecutors voluntarily elect to proceed under one theory or another,
or judges order an election pursuant to a motion, evidentiary issues such as those
presented in this case will continue to arise.
{35} 	The BAC evidence was not admissible in this DWI trial. Furthermore, even if
the evidence was somehow relevant, it should have been excluded as unduly
prejudicial. Since the majority has decided otherwise, I dissent.
_______________________________
MICHAEL E. VIGIL, Judge