July 7, 2016 – State v. Hall, 33,875

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: July 7, 2016
NO. 33,875
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CHRIS HALL,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Vicki W. Zelle, Assistant Appellate Defender
Albuquerque, NM
for Appellant

OPINION
HANISEE, Judge.
{1} 	Defendant Chris Hall appealed his conviction in the metropolitan (metro) court
for driving while intoxicated (DWI), contrary to NMSA 1978, Section 66-8-102(C)(1)
(2010), to the district court. The district court affirmed the metro court’s sentencing
order and filed a memorandum opinion. Defendant now appeals to this Court. He
challenges the constitutionality of the sobriety checkpoint at which he was stopped,
the admission into evidence of his breath test results, and the sufficiency of the
evidence to support his conviction. We conclude that while the checkpoint was
constitutional, the metro court erred in admitting Defendant’s breath results. Because
the evidence was otherwise sufficient to support Defendant’s conviction, we reverse
and remand for a new trial.
BACKGROUND
{2} 	Shortly after 10:00 p.m. on January 20, 2012, Defendant was stopped at a DWI
checkpoint on Central Avenue in Albuquerque, New Mexico, just west of the Rio
Grande River. The checkpoint—in place between 10:00 p.m. and 3:00 a.m.—had been
planned by Sergeant Lecompte, DWI Unit Supervisor for the Bernalillo County
Sheriff’s Office (BCSO), and approved by his lieutenant. An approved tactical plan
(tact plan) laid out the parameters of the checkpoint, including the placement of signs,

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cones, reflective tape, and emergency lighting at the checkpoint site. The tact plan also
included guidelines for field officers conducting stops at the checkpoint, specifying
that initial contact with each driver should be limited to 15-30 seconds, with the
officer introducing himself, announcing the purpose of the checkpoint, and asking the
driver if he or she has consumed alcohol or drugs. If additional investigation was
required following the initial contact, the officer was to remove the driver from the
vehicle to conduct standardized field sobriety tests (FSTs) in a separate investigation
area. Sergeant Lecompte briefed each of the field officers on the tact plan prior to
initiating the checkpoint and remained on-site to supervise and to ensure that the tact
plan was being followed.
{3} 	The first officer to make contact with Defendant was BCSO Sergeant Perea,
who upon making contact detected an odor of alcohol coming from inside Defendant’s
truck. In accordance with the suggested checkpoint dialogue contained in the tact plan,
and because Defendant was the only person inside the truck, Sergeant Perea asked
Defendant if he had consumed any alcoholic beverages that evening. Defendant
responded that he had a beer about an hour prior. Sergeant Perea then conducted a
seated horizontal gaze nystagmus (HGN) test on Defendant. Based on the odor of
alcohol, Defendant’s admission to drinking beer an hour prior, and Defendant’s
performance on the seated HGN test, Sergeant Perea removed Defendant from his

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truck and proceeded to conduct a battery of three standardized FSTs. Defendant’s
performance on the FSTs resulted in his arrest for DWI.
{4} 	Defendant was then taken to the “BATmobile”—located at the checkpoint
site—where he consented to a breath test. Following a 20-minute deprivation period,
as measured by Sergeant Perea’s wristwatch, Defendant provided two breath samples
using an Intoxilyzer 8000. The breath test results revealed that Defendant had 0.10
grams of alcohol per 210 liters of breath, which was above the “per se” legal limit. See
§ 66-8-102(C)(1) (providing that it is illegal for a person to drive a vehicle with “an
alcohol concentration of eight one hundredths [0.08] or more in [his or her] blood or
breath”).
{5} 	At a bench trial in the metro court, Defendant challenged the constitutionality
of the DWI checkpoint. He also objected to the admissibility of the breath test results.
The metro court found that the checkpoint was constitutional and admitted the breath
test results. The metro court then found Defendant guilty of per se DWI, although it
acquitted Defendant of DWI based on impairment to the slightest degree, contrary to
Section 66-8-102(B).
{6} 	On appeal, the district court affirmed Defendant’s conviction for per se DWI,
determining that the checkpoint was constitutional and that the breath results were
properly admitted into evidence. While we agree with the district court that the

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checkpoint was constitutional, we disagree with respect to the breath test and conclude
that the metro court erred in admitting the breath results.
DISCUSSION
{7} 	“For on-record appeals the district court acts as a typical appellate court, with
the district court simply reviewing the record of the [metro] court trial for legal error.”
State v. Trujillo, 1999-NMCA-003, ¶ 4, 126 N.M. 603, 973 P.2d 855. “In subsequent
appeals such as this, we apply the same standards of review employed by the district
court.” 	State v. Bell, 2015-NMCA-028, ¶ 2, 345 P.3d 342. “A trial court’s
determination on a motion to suppress evidence involves a mixed question of law and
fact, as to which our review is de novo.” Id.
I. 	The DWI Checkpoint Was Constitutional
{8} 	Defendant contends that the DWI checkpoint at which he was stopped was not
constitutional under New Mexico law. This Court has held that a sobriety checkpoint
is a seizure. See State v. Bates, 1995-NMCA-080, ¶ 9, 120 N.M. 457, 902 P.2d 1060
(stating “there is no question that a [checkpoint] is a seizure”). However, “a DWI
[checkpoint], at which drivers are stopped without probable cause or reasonable
suspicion, is not a per se violation of the Fourth Amendment to the United States
Constitution; the constitutionality of the [checkpoint] depends on whether it is
reasonable.” Id. ¶ 6 (citing City of Las Cruces v. Betancourt, 1987-NMCA-039, ¶ 9,

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105 N.M. 655, 735 P.2d 1161). The ultimate question for this Court is whether the
facts and inferences before the lower courts support its conclusion that the checkpoint
was reasonable. Bates, 1995-NMCA-080, ¶ 21.
{9} 	A sobriety checkpoint “is constitutionally permissible so long as it is reasonable
within the meaning of the [F]ourth [A]mendment as measured by its substantial
compliance with [eight factors].” Betancourt, 1987-NMCA-039, ¶ 16.
The eight Betancourt factors are: (1) the role of supervisory personnel, (2) restrictions
on the discretion of field officers, (3) safety, (4) reasonable location, (5) time and
duration, (6) indicia of official nature of the checkpoint, (7) length and nature of
detention, and (8) advance publicity. Id. ¶ 13. “[A] sobriety checkpoint conducted in
substantial compliance with the eight Betancourt factors is [also] constitutional under
the New Mexico Constitution.” State v. Madalena, 1995-NMCA-122, ¶ 26, 121 N.M.
63, 908 P.2d 756.
{10} 	At trial, following the testimony of Sergeant Lecompte, which focused on the
details of the tact plan, approval of the tact plan by his supervisor, restrictions on the
discretion of field officers, and BCSO’s efforts to ensure widespread advance
publicity, the State moved the metro court to find the checkpoint constitutional under
Betancourt. Defendant objected, arguing that three of the factors had not been met.
Specifically, Defendant challenged the safety of the checkpoint, the reasonableness

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of the checkpoint’s location, and whether there was advance publicity. The metro
court heard Defendant’s argument and the State’s response and concluded that the
checkpoint was constitutional. Later in the trial, Defendant renewed his challenge to
the constitutionality of the checkpoint, arguing that the discretion of the field officers
was not adequately constrained. The metro court again ruled that the checkpoint was
reasonable and constitutional. The district court affirmed. We address each challenged
Betancourt factor in turn.
A. 	Safety
{11} 	First, Defendant argues that the checkpoint was unsafe due to its location west
of the bridge over the Rio Grande River. According to Defendant, the first checkpoint-
related signage—a sign warning drivers to “reduce speed”—was located at the apex
of the bridge, and the entirety of the checkpoint was not visible to westbound drivers
prior to reaching the top of the bridge. Defendant testified at trial that another vehicle
drove straight through the checkpoint presumably in an attempt to avoid being
stopped. Defendant also points out that emergency maneuvers were limited by the
nature of the bridge and by oncoming eastbound traffic and asserts that several
vehicles attempted to avoid the checkpoint by making U-turns over the median on the
bridge.
{12} 	The State responds by stressing that the “reduced speed” sign was followed by

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additional signage, cones, and flashing lights from marked police vehicles, and that
the checkpoint site itself included signage, flashing lights, overhead lighting from the
BATmobile, and officers wearing reflective vests. The State also argues that there was
“no testimony that any officer or motorist was injured or involved in a vehicle
collision” and that “Defendant’s argument is premised on the actions of one motorist
who attempted to evade the checkpoint,” highlighting that such evasion is not
necessarily indicative of the checkpoint’s safety, but rather of the mind-set of the
driver of the vehicle, as noted by the district court in its memorandum opinion. See
State v. Anaya, 2009-NMSC-043, ¶ 15, 147 N.M. 100, 217 P.3d 586 (“Evading a
marked DWI checkpoint is a specific and articulable fact that is sufficient to predicate
reasonable suspicion for an investigatory stop.”).
{13} 	We note that there was testimony that the bridge over the Rio Grande River has
a slight, “roughly” one percent grade and that two photographs of the checkpoint
location were entered into evidence at trial. In light of the facts outlined above and the
evidence presented to the metro court, we conclude no error in the metro court’s
determination that the safety factor was substantially complied with. See Bates, 1995-
NMCA-080, ¶ 25 (weighing reasonableness in favor of the state where there were
warning signs ahead of the checkpoint and a separate, lighted area for secondary
investigations).

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B. 	Reasonable Location
{14} 	Second, Defendant contends that the checkpoint’s location was not reasonable.
Sergeant Lecompte testified that he chose the location based upon DWI arrest
statistics from past checkpoints conducted there. Defendant asserts that the location’s
“detection value” is questionable given the fact that no arrests were made during the
most recent checkpoint at that location. We agree with the State, however, that the
lack of arrests during the previous checkpoint could tend to demonstrate the successful
deterrent 	effect 	of 	placing 	sobriety 	checkpoints 	at 	that 	particular 	location.
Furthermore, while Betancourt made it clear that “a location chosen with the actual
intent of stopping and searching only a particular group of people, i.e., Hispanics,
[B]lacks, etc., would not be tolerated[,]” there was no evidence produced at trial to
indicate any such discriminatory purpose, and Defendant does not argue that there was
such a purpose. 1987-NMCA-039, ¶ 13. We conclude that Sergeant Lecompte’s
testimony was sufficient to establish that the checkpoint location was selected on the
basis of prior arrest statistics and on the successful deterrent effect of past checkpoints
at the same location, and therefore supported the trial court’s determination that the
checkpoint was reasonable. See id. ¶ 11 (“The need to deter, detect[,] and remove
drunk drivers from the public highways weighs heavily in favor of the state.”).
C. 	Advance Publicity

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{15} 	Third, Defendant argues that the advance publicity factor was not met, based
on the fact that the officer who was responsible for faxing notice to the media did not
testify at trial. Although Sergeant Lecompte testified that the other officer faxed notice
to several media outlets on January 16, 2012, Defendant contended that Sergeant
Lecompte did not have personal knowledge regarding whether the media actually
received notice and also that a four-day notice was not sufficient. While Defendant
maintains that no actual confirmation receipt of the faxes were received from any
media outlet, it appears from Sergeant Lecompte’s testimony that fax confirmation
sheets were included in the tact plan submitted to his supervisor, reflecting that the
faxes successfully went through to “several different media outlets.” The metro court
found that this factor was complied with by ruling that the checkpoint was
constitutional. The district court, however, expressed that “[t]he State’s failure to
provide proof that the media was actually notified causes the [c]ourt some concern[.]”
Nevertheless, given our conclusions in this opinion on the remaining Betancourt
factors, we need not resolve the differing perspectives of the metro and district courts
regarding whether BCSO’s attempt to generate advance publicity of this checkpoint
satisfies the final Betancourt factor. See State v. Swain, 2016-NMCA-024, ¶¶ 12-13,
366 P.3d 711 (“Based on our longstanding [caselaw], a lack of advance publicity,
without more, is simply not sufficient to find that a DWI checkpoint constitutes an

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illegal seizure.”); see also Bates, 1995-NMCA-080, ¶ 26 (“Whether or not there is
advance publicity is not dispositive of the reasonableness of a DWI [checkpoint].”).
D. 	Restrictions on the Discretion of Field Officers
{16} 	After the metro court found the checkpoint to be constitutional under
Betancourt, Sergeant Perea took the stand. During voir dire by defense counsel,
Sergeant Perea stated that his contact with Defendant—prior to removing Defendant
from his vehicle to perform standardized FSTs—extended to somewhere between two
and three minutes, included the giving of a “seated” HGN test, and “possibly” or
“could have” included additional conversation. Defendant then renewed his objection
to the constitutionality of the checkpoint, arguing that Sergeant Perea’s testimony
established that he was not limited in his discretion, as required by the second
Betancourt factor. The metro court found that conducting the seated HGN test, as well
as not doing the same with other motorists, “did widen the scope and was beyond the
discretion of the stopping officer at that point,” but the court ultimately concluded that
the totality of the circumstances weighed against suppression of the evidence.
{17} 	For its part, the district court observed that a constitutionally reasonable
checkpoint serves as an adequate substitute for reasonable suspicion and “can justify
the stop and initial inquiry.” An officer would then be permitted to expand the scope
of the stop if he had reasonable and articulable suspicion of criminal activity. State v.

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Leyva, 2011-NMSC-009, ¶ 10, 149 N.M. 435, 250 P.3d 861. Importantly, this is the
reasoning that undergirds the operation of sobriety checkpoints such as the one in
question. Specifically, the tact plan guidelines here provided the officers with 15-30
seconds in which to observe the driver’s condition and to ask about prior alcohol or
drug consumption. The officer’s observations, as well as the driver’s answers to the
initial inquiry, could then provide the officer with reasonable suspicion to support
detaining the driver for additional investigation. See id. The district court in this case
concluded that Sergeant Perea had reasonable suspicion based on his observation of
Defendant and Defendant’s affirmative answer to having consumed alcohol. See State
v. Walters, 1997-NMCA-013, ¶ 26, 123 N.M. 88, 934 P.2d 282 (holding that an
officer acting in a community caretaker role had reasonable suspicion to investigate
further after the officer spoke to the defendant and detected the odor of alcohol).
{18} 	Notably, Defendant does not appear to challenge the determination that
Sergeant Perea had reasonable suspicion to expand the checkpoint stop into a full-
blown DWI investigation. Instead, he takes issue with the fact that Sergeant Perea had
some additional conversation with him and conducted the seated HGN test instead of
immediately removing him from his truck to undergo the full battery of FSTs. Thus,
it appears that Defendant is arguing that Sergeant Perea’s deviation from the tact plan
guidelines—by not immediately removing Defendant from his vehicle—rendered the

12
checkpoint unconstitutional. The district court agreed that the additional conversation
and the abbreviated HGN test were not part of the script, but relying on State v.
Duarte, 2007-NMCA-012, 140 N.M. 930, 149 P.3d 1027, determined that these
actions did not unreasonably expand the stop, nor were they more invasive than
removing Defendant from his vehicle to perform FSTs, which was the next step in the
tact plan. See id. ¶ 39 (declining to “fix a deviation from a script of questions as a
constitutional infirmity, without contemporaneous inquiry more broadly into the
invasiveness and intrusion of the contact”).
{19} 	Defendant contends that the metro court and the district court read Duarte too
broadly. Defendant attempts to distinguish Duarte by stressing the “very limited scope
of permitted ‘initial contact’ ” in the present case and by stating that Sergeant Perea’s
“breach does not compare with the breach of procedure described in Duarte[] that was
found ‘too insubstantial to constitute constitutional harm.’ ” We observe, however,
that in specifically addressing the issue of the constitutional propriety of departures
from a pre-approved script, Duarte stated, “[w]hat makes this a viable issue is the
unique substitution of a properly implemented [checkpoint] for the requirement of
individualized suspicion.” Id. ¶¶ 35, 38. We are cautioned by Duarte that it is the
“elimination of the requirement for individualized suspicion” that creates the “serious
concern about lack of uniformity and need for limitation of discretion.” Id. But in

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Duarte, the deviation from the script occurred during the initial questioning of the
driver and before the officer had reasonable suspicion that the driver had committed
a crime. Id. ¶ 27. In the present case, Sergeant Perea had reasonable suspicion that
Defendant was driving while intoxicated before any purported deviation from the tact
plan. As such, the Duarte court’s “fear of unrestricted discretion in questioning, and
the invidious, intrusive invasion of privacy that can occur from such discretion” was
not present in this case. Id. ¶ 38. Consequently, we conclude that the presence of
reasonable suspicion following the initial contact justified further detention for
additional investigation, notwithstanding Sergeant Perea’s subsequent deviation from
the tact plan guidelines. Cf. State v. Villas, 2002-NMCA-104, ¶ 10, 132 N.M. 741, 55
P.3d 437 (recognizing that “[u]nder the New Mexico Constitution, after the
checkpoint stop, a police officer cannot further detain a motorist without reasonable
suspicion of criminal activity”); Brown v. Texas, 443 U.S. 47, 51 (1979) (stating that
“the Fourth Amendment requires that a seizure must be based on specific, objective
facts indicating that society’s legitimate interests require the seizure of the particular
individual, or that the seizure must be carried out pursuant to a plan embodying
explicit, neutral limitations on the conduct of individual officers” (emphasis added)).
E. 	Other Betancourt Factors
{20} 	Finally, to the extent that Defendant is challenging the supervisory personnel

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factor and the length and nature of detention factor on appeal, we observe that these
factors were not challenged in the metro court. Consequently, we conclude that
Defendant’s arguments on these factors were not preserved for appeal. See State v.
Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (stating that “[i]n order
to preserve an error for appeal, it is essential that the ground or grounds of the
objection or motion be made with sufficient specificity to alert the mind of the trial
court to the claimed error or errors, and that a ruling thereon then be invoked”
(internal quotation marks and citation omitted)).
{21} 	Therefore, because sufficient evidence was produced at trial to establish that the
DWI checkpoint in this case substantially complied with all of the Betancourt factors,
perhaps with the exception of advance publicity, we conclude that the metro court did
not err in finding the checkpoint to be constitutional.
II. 	The Metro Court Abused Its Discretion by Admitting the Breath Card Into
Evidence
{22} 	Defendant argues that his breath test results should not have been admitted for
two reasons: (1) he presented evidence tending to show that the annual proficiency
tests on the Intoxilyzer 8000 had not been conducted, and (2) the required twenty-
minute deprivation period was not conducted prior to his breath test.
A. 	Proficiency Testing
{23} 	We observed in State v. Hobbs, 2016-NMCA-022, ¶ 1, 366 P.3d 304, cert.

15
denied, 2016-NMCERT-002, ___ P.3d ___ that the Scientific Laboratory Division of
the Department of Health (SLD) has administrative authority over blood and breath
tests administered to persons suspected of driving under the influence of intoxicants.
See NMSA 1978, § 24-1-22 (2003). Under its authority, the SLD has promulgated
regulations under the New Mexico Administrative Code governing “the certification
of laboratories, breath alcohol instruments, operators, key operators, and operator
instructors of the breath alcohol instruments as well as establish[ing] the methods of
taking and analyzing samples of blood and breath testing for alcohol or other chemical
substances under the New Mexico Implied Consent Act, [NMSA 1978, § 66-8-107(B)
(1993)].” 7.33.2.2 NMAC.
{24} 	At issue in this case is the certification of the Intoxilyzer 8000 used to measure
Defendant’s breath alcohol level. See 7.33.2.10(A) NMAC (“Any breath alcohol
instrument to be used for implied consent evidential testing must be approved and
certified by SLD.”); see also State v. Onsurez, 2002-NMCA-082, ¶ 13, 132 N.M. 485,
51 P.3d 528 (“[T]he [s]tate must show that the machine used for administering a
breath test has been certified by SLD.”).
{25} 	In State v. Martinez, 2007-NMSC-025, ¶¶ 9, 11-12, 23, 141 N.M. 713, 160 P.3d
894, our Supreme Court held that a “threshold showing” that the instrument used to
administer a breath alcohol test (BAT) was SLD-certified at the time of the test is a

16
Rule 11-104(A) NMRA foundational requirement for admission of the BAT results
into evidence. Martinez went on to state that this foundational requirement can be
satisfied by the hearsay testimony of the officer who administered the BAT that he
saw a “sticker” on the breathalyzer instrument indicating that it was SLD-certified at
the time of the defendant’s BAT. 2007-NMSC-025, ¶ 23. In the present case, Sergeant
Perea testified in the metro court that the Intoxilyzer 8000 used to measure
Defendant’s breath alcohol level was certified by SLD. He testified that he observed
the Martinez sticker reflecting that the date of Defendant’s test was within the date
range of the machine’s certification.
{26} 	However, Martinez also held that “a defendant may be able to critically
challenge an officer’s foundational testimony concerning certification” based on
information obtained during discovery. Id. ¶ 24. In this case, Defendant presented
documentation obtained from SLD via subpoena indicating that SLD had no
information available regarding proficiency tests conducted on the Intoxilyzer 8000
used to test Defendant’s breath for the current certification year (2011-2012).
Defendant also subpoenaed the proficiency testing documentation for the preceding
period 	(2010-2011), 	but 	SLD’s 	response 	did 	not 	mention 	or 	include 	such
documentation. Defendant informed the court at trial that SLD “never responded to
[the] 2010-2011 request.” Therefore, we must presume none existed. Defendant used

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this information to challenge the officer’s threshold showing that the BAT machine
was certified under the SLD regulations and to argue for the inadmissibility of the
breath results.
{27} 	The State argued in the metro court that the section of the SLD regulations
dealing with proficiency testing does not set out a mandatory requirement. Instead,
relying on the presence of the word “should” in the applicable section of the
regulation, the State argued that failure to analyze proficiency samples does not affect
the certification of the breath alcohol instrument. See 7.33.2.10(B)(1)(b) NMAC
(“Four proficiency samples should be analyzed yearly on each such certified
instrument.”). The metro court agreed with the State’s position. The district court
affirmed, 	noting 	in 	a 	footnote 	that 	the 	previous 	version 	of 	the 	regulation,
7.33.2.11(G)(2) NMAC (2001), specifically stated that “[c]ertification of the breath
alcohol testing instruments shall be dependent upon the following . . . Satisfactory
performance on the requisite proficiency testing. Six (6) proficiency samples should
be analyzed yearly on each such certified instrument.” Although the proficiency test
language is couched under “[c]ontinuing responsibilities” within the current version
of the regulation, the district court concluded that removal of the previous mandatory
language, “shall be dependent upon the following,” made the proficiency tests no
longer mandatory. Compare 7.33.2.10(B) NMAC, with 7.33.2.11 NMAC (2001).

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{28} 	In Martinez, the Court held that the SLD regulations governing certification of
a BAT machine are accuracy-ensuring. 2007-NMSC-025, ¶ 11. After listing a number
of requirements for certification under the 2001 version of the regulations, including
two yearly calibration tests, an annual inspection by SLD, monthly submission of
records pertaining to all tests conducted on the machine, satisfactory performance of
six yearly proficiency samples, and a calibration check at least every seven days
and/or a 0.08 calibration check conducted on each subject, the Court held that before
a BAT card is admitted into evidence, the State must make a threshold showing that
the machine has been certified. Id. ¶¶ 11-12.
{29} 	In Hobbs, this Court—interpreting the current version of the regulation—noted
that the “certification requirements for instruments are extensive.” 2016-NMCA-022,
¶ 16. We observed that an instrument must obtain initial certification, that must then
be renewed annually based on compliance with the 7.33.2.10. NMAC. Hobbs, 2016-
NMCA-022, ¶ 16. We further noted that the regulation “contains numerous continuing
requirements for individual instruments, including . . . annual analysis of four
proficiency samples[.]” Id. Among the other requirements listed in the “[c]ontinuing
responsibilities” section of the current version of the regulation are: submission of
logbooks and records at scheduled times; calibration checks at least once every seven
days or with each subject test or both; and biannual inspections of the machine at

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SLD. Id.; see also 7.33.2.10(B)(1). In other words, our jurisprudence permitting the
admissibility of breath test results does so based upon ongoing accuracy-ensuring
processes that guard against inconsistent, varying, and erroneous results. Despite its
use within 7.33.2.10(B)(1)(b), the word “should” does not precede the process for
admissibility of breath test results and the requirement that they are produced by a
properly certified device established in applicable caselaw. In light of our regulatory
interpretation in Hobbs and the principle set forth in Martinez, we conclude that
satisfactory performance on four annual proficiency tests is titled “[c]ontinuing
responsibilities” for a reason and remains a mandatory accuracy-ensuring requirement
for certification under the current version of the regulation.
{30} 	Because the metro court—based on its erroneous understanding that the
proficiency tests are not mandatory under the SLD regulations—failed to consider
whether Defendant sufficiently challenged the admissibility of the breath test results,
it abused its discretion in admitting the results. See State v. Favela, 2013-NMCA-102,
¶ 16, 311 P.3d 1213 (“An abuse of discretion may . . . occur when the district court
exercises its discretion based on a misunderstanding of the law.” (internal quotation
marks and citation omitted)). However, we do not determine as a matter of law that
Defendant’s challenge to the admissibility of the breath test results—through a
document indicating that SLD does not have available records of the required

20
proficiency tests for this particular machine—serves to defeat the State’s threshold
showing. Rather, we reverse and remand to the metro court in order for it to reach a
determination that incorporates consideration of both the evidence produced by
Defendant and Sergeant Perea’s testimony that he observed a sticker indicating that
the machine was certified by SLD on the date in question. See State v. Willie, 2009-
NMSC-037, ¶ 12, 146 N.M. 481, 212 P.3d 369 (holding that whether a regulation
relating to breath tests has been satisfied is a factual determination to be made by the
trial court, that must be satisfied by a preponderance of the evidence).
B. 	Deprivation Period
{31} 	7.33.2.15(B)(2) NMAC provides that “[b]reath [samples] shall be collected only
after the certified operator or certified key operator has ascertained that the subject has
not had anything to eat, drink[,] or smoke for at least twenty minutes prior to the
collection of the first breath sample.” In Willie, our Supreme Court held that the
evidence was sufficient to satisfy the deprivation requirement when the defendants
were restrained for nearly an hour after arrest “in such a way that it would be unlikely
that they could have eaten, drunk, or smoked anything” even though they were not
observed continuously. Willie, 2009-NMSC-037, ¶ 16.
{32} 	In this case, Sergeant Perea handcuffed Defendant and placed him in the
BATmobile. Although Sergeant Perea left the room for a few moments to retrieve a

21
laptop computer, he left Defendant with another officer. We agree, therefore, with the
metro court and the district court that there was sufficient testimony to prove by a
preponderance of the evidence that Defendant did not eat, drink, or smoke anything
during that time frame and that the 20-minute deprivation period was satisfied.
III. 	Defendant’s Conviction Was Supported by Sufficient Evidence
{33} 	Defendant argues that the breath test results—indicating that his breath alcohol
level was 0.10/0.10, above the per se limit of 0.08—were not reliable, and
consequently, the evidence presented at trial was insufficient to support his
conviction. Specifically, Defendant contends that the lack of proficiency testing and
the 	“suspect” 	compliance 	with 	the 	deprivation 	period 	combine 	to 	result 	in
inadequately reliable BAT. In support, Defendant points to State v. King, 2012-
NMCA-119, ¶ 16, 291 P.3d 160, where this Court recognized that “[t]he [I]ntoxilyzer
reading, even though the machine has been approved by the SLD, and operated and
maintained in accordance with the SLD regulations, is not conclusive evidence of the
offense. Nor is it conclusive evidence of the reliability of the test results.” We
acknowledge that a defendant may challenge the reliability of a BAT machine’s
reading, and we note that Defendant has conducted such a challenge in this case,
pointing to issues with verifying whether proficiency tests had been conducted and
whether the twenty-minute deprivation period was complied with.

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{34} 	On appeal, the appellate court views the evidence in the light most favorable to
the verdict, resolving all conflicts and indulging all reasonable inferences in favor of
the verdict. State v. Apodaca, 1994-NMSC-121, ¶ 3, 118 N.M. 762, 887 P.2d 756. As
stated earlier in this opinion, we have determined that the metro court did not err in
concluding that the deprivation period was met. We have further observed that
evidence was presented that there was documentation on this particular Intoxilyzer
8000 indicating that it was certified by SLD on the date of the tests in question. As
such, we conclude that there was sufficient evidence to support Defendant’s
conviction for per se DWI, notwithstanding Defendant’s attack on the reliability of the
machine. See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482
(recognizing that it is for the fact-finder (in this case, the judge) to resolve any conflict
in the testimony of the witnesses and to determine where the weight and credibility
lie).
CONCLUSION
{35} 	For the foregoing reasons, we conclude that the DWI checkpoint at which
Defendant was stopped was constitutional. We further conclude that the 20-minute
deprivation period was met and that the BAT results—0.10/0.10—constituted
sufficient evidence to support Defendant’s conviction for per se DWI. However,
because 	the 	metro 	court 	admitted 	the 	breath 	results 	based 	on 	its 	erroneous

23
determination that the annual proficiency tests were not required by SLD regulation,
we reverse and remand to the metro court for a new trial.
{36} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
WE CONCUR:
_________________________________
MICHAEL E. VIGIL, Chief Judge
_________________________________
JONATHAN B. SUTIN, Judge