February 28, 2023- State of New Mexico v. Janice Lucero, No. A-1-CA-38776

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: February 28, 2023	3
No. A-1-CA-38776	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
JANICE LUCERO,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	10
Brett Loveless, District Court Judge	11
Raúl Torres, Attorney General	12
Santa Fe, NM	13
John Kloss, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Santa Fe, NM	18
Luz C. Valverde, Assistant Appellate Defender	19
Albuquerque, NM	20
Court of Appeals of New Mexico
Filed 2/28/2023 11:27 AM

OPINION	1
YOHALEM, Judge.	2
{1} 	Defendant Janice Lucero entered a conditional plea of guilty in metropolitan	3
court to a first offense of driving under the influence of intoxicating liquor or drugs	4
(DWI), contrary to NMSA 1978, Section 66-8-102 (2010, amended 2016). The	5
charge arose out of a single-car rollover accident in which Defendant was injured.	6
With her conditional plea, Defendant reserved the right to appeal the metropolitan	7
court’s denial of her motion to suppress what Defendant claims are physician-patient	8
communications 	privileged 	under 	Rule 	11-504 	NMRA. 	The 	communication	9
Defendant seeks to suppress is a conversation she had with an emergency medical	10
technician 	(EMT) for the purpose of diagnosis or treatment, 1 during 	which	11
Defendant disclosed, in answer to a question from the EMT, that she had consumed	12
alcohol before driving. Defendant’s communication to the EMT was overheard and	13
recorded by a law enforcement officer who entered the ambulance where the	14
conversation took place just after the EMT began questioning Defendant, and,	15
according to Defendant, without her knowledge. The metropolitan court concluded	16
1 The parties do not dispute whether the EMT was a “physician” as defined in
Rule 11-504(A)(2), for purposes of the application of the physician-patient privilege.
Further, although the State argued below that the questions regarding Defendant’s
alcohol consumption were not for the purpose of diagnosis or treatment, the State
does not pursue this argument on appeal. We therefore assume without deciding that
the EMT qualifies as a “physician” under the privilege and that the communications
between Defendant and the EMT were for the purpose of diagnosis or treatment.

2
based on the circumstances that “it was unreasonable for . . . Defendant to believe	1
her communication with the [EMT] was private and therefore the confidentiality	2
requirement of the Doctor-Patient privilege was not met.” The district court affirmed	3
the metropolitan court’s decision.2 We conclude that the metropolitan court failed to	4
apply the correct standard of law. We therefore reverse and remand to the	5
metropolitan court to make the factual findings required under the correct principles	6
of law.	7
{2} 	Defendant also argues on appeal that she was denied due process of law by	8
delay in the resolution of her appeal in the district court. Not persuaded by her due	9
process argument, we affirm the district court’s denial of Defendant’s motion to	10
dismiss.	11
BACKGROUND	12
{3} 	The following evidence was adduced at a hearing in the metropolitan court on	13
Defendant’s motion to exclude from evidence at her DWI trial “any statements made	14
2 At the time this action was filed, appeals from convictions for driving under
the influence of intoxicating liquors or drugs in metropolitan court were taken to the
district court and then from the district court to this Court. See NMSA 1978, § 34-
8A-6 (1993, amended 2019). “For on-record appeals the district court acts as a
typical appellate court, with the district judge simply reviewing the record of the
metropolitan 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.

3
while being attended to by any health care professional,” pursuant to physician-	1
patient privilege, Rule 11-504	2
{4} 	Defendant was in a single-vehicle rollover crash on January 18, 2015. Deputy	3
Weeks was the first law enforcement officer to arrive at the scene of the accident.	4
Deputy Weeks found Defendant still in her overturned, smoke-filled vehicle; he	5
broke the vehicle’s rear passenger-side window and Defendant was able to crawl out	6
through the broken window.	7
{5} 	With Deputy Weeks steadying her, Defendant walked across the road and sat	8
on a curb. An ambulance arrived within a few minutes. Deputy Weeks told the	9
paramedics that Defendant was having trouble walking and difficulty with speech.	10
The paramedics immediately attended to Defendant, asking her if she was okay.	11
Defendant told them that she had injured her right knee and that the pain was very	12
bad. The paramedics got her onto a gurney and took her to the ambulance.	13
{6} 	Deputy Cordova, who had arrived on the scene of the accident just before the	14
ambulance, testified that when he got close to Defendant, he smelled alcohol near	15
her face, her speech was slurred, and he saw vomit on her dress. Based on these	16
observations and the fact that Defendant had been involved in a rollover crash,	17
Deputy Cordova decided to pursue a DWI investigation. He followed the gurney to	18
the ambulance.	19

4
{7} 	When the gurney reached the ambulance, the paramedics loaded the gurney	1
with Defendant on it, face up, into the bay of the ambulance through its open back	2
doors. The bay of the ambulance was empty and Defendant and the EMT were	3
briefly alone. Deputy Cordova entered through the side door of the ambulance	4
immediately after Defendant was placed in the ambulance. The side door was behind	5
Defendant, and Deputy Cordova testified he did not walk past her when he entered.	6
The EMT had already started questioning Defendant. Almost immediately, Deputy	7
Cordova heard the EMT ask Defendant how many drinks she had consumed.	8
Defendant responded that she had “three Crown and Cokes.”	9
{8} 	About a minute or two after entering the ambulance, Deputy Cordova spoke	10
for the first time. He asked Defendant if she had had anything to drink that night.	11
Defendant did not immediately respond. Then she asked Deputy Cordova if he was	12
recording. Deputy Cordova said, “Yes.” Defendant was crying and did not answer	13
him further. Deputy Cordova asked Defendant whether she would take a blood test	14
for alcohol. Defendant did not respond. According to Deputy Cordova, she either	15
began nodding off or pretended to be nodding off. Deputy Cordova took this as a	16
refusal to answer his questions or, to consent to alcohol testing. Deputy Cordova	17
placed her under arrest for DWI and the ambulance left to take her to the hospital.	18
{9} 	At the hearing on Defendant’s motion to exclude her communications to the	19
EMT, Defendant testified to her belief that she was alone in the ambulance with the	20

5
EMT during the examination. Defendant described being in intense pain from her	1
knee injury, said she did not hear the deputy’s radio and was complaining about the	2
pain to the EMT.	3
{10} 	Deputy Cordova was asked by the metropolitan court judge whether he had	4
any indication that Defendant knew he had entered the ambulance. Deputy Cordova	5
admitted that Defendant could not see him directly. He stated that he believed	6
Defendant knew he was there given that he was only a few feet from her, the noise	7
his radio made, her awareness that police officers were present at the accident scene,	8
and his belief he was likely visible in her peripheral vision. He could not remember	9
whether Defendant turned to look at him when he entered the ambulance.	10
{11} 	Deputy 	Cordova 	filed 	a 	criminal 	complaint 	charging 	Defendant 	with	11
aggravated DWI, citing his observation of the smell of alcohol near Defendant,	12
Defendant’s bloodshot and watery eyes, her slurred speech, the vomit he saw on her	13
dress, 	and 	Defendant’s 	answer 	to 	the 	EMT’s 	question 	during 	her 	medical	14
examination telling the EMT that she had consumed “three Crown and Cokes.”	15
{12} 	A few days after the suppression hearing, the metropolitan court announced	16
its decision from the bench. The metropolitan court made the following findings of	17
fact: (1) Defendant was conscious; (2) Defendant was alert and aware of her	18
surroundings; (3) Defendant knew she was at an accident scene and officers were	19
present on the scene; (4) Defendant complained only of knee pain, not of headache	20

6
or other head “actions”; (5) the doors to the ambulance were open and an officer was	1
present; (6) Defendant was facing the rear doors and would have had to turn her head	2
to talk to the EMT; (7) Deputy Cordova was two to four feet from Defendant; (8)	3
Deputy Cordova was not hiding; and (9) Defendant should have been aware of who	4
was present, should have closed the ambulance doors, and should have excluded any	5
third party. The metropolitan court’s written order denying Defendant’s motion to	6
exclude the allegedly privileged evidence states that “it was unreasonable for . . .	7
Defendant to believe her communication with the [EMT] was private, and therefore	8
the confidentiality requirement of the [physician-p]atient privilege was not met.”	9
{13} 	Defendant entered a conditional guilty plea, preserving for appellate review	10
the issue of whether her communication to the EMT made in an ambulance for the	11
purpose of diagnosis or treatment was protected by the Rule 11-504 physician-	12
patient privilege. Defendant filed her appeal to the district court on August 26, 2015.	13
The district court affirmed the metropolitan court’s denial of Defendant’s motion to	14
exclude evidence on December 4, 2019.3 Defendant’s appeal to this Court followed.	15
3 Defendant claimed in the district court, and argues on appeal, that her due
process right to a reasonably prompt decision on appeal was violated by the more
than four-year delay in the issuance of the district court’s appellate decision. The
district court found no due process violation. We discuss the facts and law related to
Defendant’s due process issue as part of our analysis of that issue.

7
DISCUSSION	1
I. 	Were Defendant’s Communications for the Purposes of Diagnosis or	2
Treatment Confidential Communications Protected by the Physician-	3
Patient Privilege?	4
A. 	Standard of Review	5
{14} 	Because Defendant does not challenge the metropolitan court’s findings of	6
fact, we assume that these facts are supported by substantial evidence in the record.	7
Resolution of this appeal requires us to determine both whether the metropolitan	8
court correctly construed the law of privileges, a question we review de novo, see	9
Allen 	v. LeMaster, 2012-NMSC-001, ¶ 11, 267 	P.3d 	806, and 	whether the	10
metropolitan court correctly applied that law to the circumstances of this case, a	11
question which we also review de novo. See Pacheco v. Hudson, 2018-NMSC-022,	12
¶ 24, 415 P.3d 505 (explaining that whether specific communications are subject to	13
a privilege is a mixed question of fact and law that is reviewed de novo on appeal).	14
B. 	The Physician-Patient Privilege, Rule 11-504	15
{15} 	Rule 11-504(B) describes the scope of the physician-patient privilege as	16
follows:	17
A patient has a privilege to refuse to disclose, or to prevent any other	18
person from disclosing, a confidential communication made for the	19
purpose of diagnosis or treatment of the patient’s physical, mental, or	20
emotional condition, including drug addiction, between the patient and	21
the patient’s physician, psychotherapist, or state or nationally licensed	22
mental-health therapist.	23

8
{16} 	This 	appeal 	focuses 	on 	the 	definition 	of 	the 	term 	“confidential	1
communication.” Rule 11-504(A)(5) defines a “confidential communication” as a	2
communication “made privately and not intended for further disclosure except to	3
other persons in furtherance of the purpose of the communication.” This appeal asks	4
this Court to determine under what circumstances, if any, a communication between	5
a physician and a patient, overheard by a third party, remains a “confidential	6
communication” protected from disclosure.	7
{17} 	To understand what makes a communication a “confidential communication”	8
protected by the privilege, we begin by reviewing the history and background of the	9
Rule 11-504. In New Mexico, privileges are created and defined by either Supreme	10
Court rule, statute, or our constitution. New Mexico’s rules of evidence differ from	11
the federal rules of evidence and those of many other states in that New Mexico does	12
not recognize common law privileges: “New Mexico’s approach to privileges is a	13
special product of our state law jurisprudence.” Pub. Serv. Co. of N.M. v. Lyons,	14
2000-NMCA-077, ¶ 12, 129 N.M. 487, 10 P.3d 166. We therefore look primarily to	15
our Rule 11-504 precedent to guide our analysis.	16
{18} 	We are mindful, as well, that our goal is to interpret and apply Rule 11-504 so	17
as to give effect to the purpose and intent of our Supreme Court. See H-B-S P’ship	18
v. Aircoa Hosp. Servs., Inc., 2008-NMCA-013, ¶ 10, 143 N.M. 404, 176 P.3d 1136.	19
We interpret the rules adopted by our Supreme Court with logic and common sense	20

9
to avoid absurd results. Walker v. Walton, 2003-NMSC-014, ¶ 11, 133 N.M. 766, 70	1
P.3d 756. Finally, we note that the party asserting the physician-patient privilege has	2
the burden of establishing the privilege. See Pina v. Espinoza, 2001-NMCA-055,	3
¶ 24, 130 N.M. 661, 29 P.3d 1062.	4
{19} 	The meaning of a confidential physician-patient communication protected by	5
Rule 11-504 was first construed by this Court in In re Doe, 1982-NMCA-115, ¶ 24,	6
98 N.M. 442, 649 P.2d 510, overruled on other grounds by State v. Roper, 1996-	7
NMCA-073, ¶ 12, n.3, 122 N.M. 126, 921 P.2d 322. Doe, later joined and clarified	8
by Roper, have remained the leading cases construing New Mexico’s physician-	9
patient privilege for more than forty years. In re Doe and Roper hold that for a	10
communication to be a “confidential communication” protected by the Rule 11-504	11
privilege, two conditions must be met: (1) the patient must intend the communication	12
to be undisclosed to third parties; and (2) nondisclosure of the communication must	13
further the interests the privilege is intended to protect. See In re Doe, 1982-NMCA-	14
115, ¶¶ 22-24; Roper, 1996-NMCA-073, ¶ 11.	15
{20} 	In addressing the first prong of this two-part test—that the communication is	16
not intended to be disclosed—Rule 11-504 focuses on the patient’s intent: Does the	17
patient intend the communication to be confidential? See Roper, 1996-NMCA-073,	18
¶ 11. In re Doe originally required the patient’s intent that the communication not	19
be disclosed to “be manifested in some fashion with words or words and conduct	20

10
[that] lead a [physician] to understand or believe that the information obtained was	1
intended to be confidential.” 1982-NMCA-115, ¶ 27. Roper, however, clarified this	2
requirement, removing any suggestion that the patient must make an explicit request	3
for confidentiality, and providing instead that the conduct of the patient in submitting	4
to a private consultation or evaluation by a physician is sufficient circumstantial	5
evidence to establish the patient’s intent that the communication not be disclosed to	6
others, absent the patient’s consent. 1996-NMCA-073, ¶ 12 n.3. “[W]hen a patient	7
is privately evaluated by a physician, the conduct of the patient agreeing to the	8
evaluation in itself manifests an intent that any communication made for the purpose	9
of diagnosis or treatment remain confidential.” Id. ¶ 12.	10
{21} 	In In re Termination of Parental Rights of Sherry C. & John M., 1991-NMCA-	11
137, ¶ 12, 113 N.M. 201, 824 P.2d 341, this Court addressed when a patient’s intent	12
that the communication remain confidential is negated by their knowledge that the	13
communication is subject to disclosure to a third party. The patient in In re Sherry	14
C. & John M., a parent working a treatment plan following an adjudication of abuse	15
or neglect, had been informed before the therapy began that the results of her therapy	16
would be shared with the Human Services Department and the district court. This	17
Court applied the test adopted by In re Doe concluding that “the patient must intend	18
the communications to be undisclosed,” In re Sherry C. & John M., 1991-NMCA-	19
137, ¶ 24, and explaining that if a patient is told their communications with a doctor	20

11
or therapist will be disclosed to a third party and the patient voluntarily proceeds	1
with the consultation with that knowledge, they will be considered to have consented	2
to or voluntary acquiescede in the disclosure. 	Id. 	¶ 25. The patient, having	3
voluntarily consented to or acquiesced in the disclosure by their conduct, cannot	4
claim the privilege. Id.	5
{22} 	If the patient intends the communication to be confidential, our precedent	6
applies a second test to determine if the privilege applies. In re Doe and Roper	7
require a finding that “non-disclosure of the communication would further the	8
interest of the patient.” In re Doe, 1982-NMCA-115, ¶ 24; Roper, 1996-NMCA-075,	9
¶ 11 n.2. Roper clarifies that this prong of the test looks to whether the patient’s	10
interests are consistent with the privilege’s purpose. 1996-NMCA-073, ¶ 11 n.2.4
11
The recognized purpose of the privilege is to provide an assurance of confidentiality	12
in order to “encourage a patient to make complete disclosures of [their] symptoms	13
and conditions to a physician without fear of publication.” Id. ¶ 6. The privilege	14
represents a recognition that accurate diagnosis and appropriate medical treatment	15
depend on a patient’s willingness to disclose embarrassing, and even potentially	16
4 Although acknowledging that this second prong of the In re Doe test is not
mandated by the plain language of Rule 11-504, Roper holds that consideration of
this second prong “irrespective of its derivation” is necessary to effectuate the
purposes of the rule. Roper, 1996-NMCA-073, ¶ 11 n.2.

12
incriminating, information. See Rule 11-504(B) (applying the privilege to a patient’s	1
admission of drug addiction).	2
{23} 	Recognizing the privilege’s intent to protect even incriminating information,	3
this Court in Roper refused to make an exception to the application of Rule 11-504	4
for drunk driving cases, something some other jurisdictions have done. See Roper,	5
1996-NMCA-073, ¶ 17 (citing cases from other jurisdictions). Roper explained that	6
we are not free to disregard the express language of our rules of evidence when	7
construing a privilege and that “[s]uccessful prosecution of DWI charges can be	8
achieved without invading an individual’s privacy and bodily integrity, which the	9
privilege here seeks to protect.” Id. ¶ 18.	10
C. 	Conduct 	or 	Statements 	Indicating 	Voluntary 	Acquiescence 	in 	the	11
Presence of a Third Party Is Required to Negate the Privilege	12
{24} 	With this background, we turn now to the issue of first impression raised by	13
this appeal: Under what circumstances does the presence of a third party, able to	14
overhear a communication between a physician and a patient, negate the privilege?	15
{25} 	The metropolitan court adopted an objective test: the communication is not	16
protected by the privilege if a reasonable person should have known that a third party	17
could overhear the communication. We conclude that the metropolitan court’s	18
objective test conflicts with Rule 11-504, as construed by our precedent.	19
{26} 	As discussed previously, the application of the physician-patient privilege	20
depends on whether the patient has an expectation that the communication will not	21

13
be disclosed, together with a showing that the purpose of the privilege is served by	1
honoring the patient’s expectation of confidentiality. See Roper, 1996-NMCA-073,	2
¶ 11. We emphasize that the first inquiry mandated by our precedent focuses on the	3
patient’s intent: not that of a hypothetical reasonable person. The test looks to the	4
patient’s state of mind: Did the individual involved have an actual expectation that	5
their communication with a physician would remain confidential and would not be	6
disclosed to others? See In re Doe, 1982-NMCA-115, ¶ 27. Although “[n]o objective	7
standard exists to determine a person’s state of mind,” “[i]t is not sufficient for a	8
patient to say that in the patient’s mind the communications were confidential and	9
furthered [their] own interest.” Id. In other words, intent must be manifested through	10
words or conduct that would lead the physician “to understand or believe that the	11
information obtained was intended to be confidential.” Id.; see Roper, 1996-NMCA-	12
073, ¶ 12 n.3.	13
{27} 	In 	applying 	New 	Mexico’s 	law 	of 	privilege, 	our 	courts 	examine 	the	14
defendant’s conduct to determine whether that conduct is consistent with an	15
expectation that the communication will not be disclosed. Roper, 1996-NMCA-073,	16
¶ 12 n.3. We note that in addressing what conduct is sufficient to indicate an	17
expectation of confidentiality, this Court in Roper rejected the requirement for an	18
explicit statement and adopted an assumption that agreement to a private medical	19

14
examination or evaluation is sufficient evidence of the patient’s intent that the	1
communications be confidential and not be disclosed to third parties. Id. ¶ 12.	2
{28} 	Next, the patient’s intent that the communication be confidential must be	3
examined to determine whether it serves the purposes of the privilege. As we	4
previously stated, the physician-patient privilege focuses on protecting a patient’s	5
privacy and autonomy in relating highly sensitive, personal matters concerning their	6
physical or mental condition to a medical provider for purposes of diagnosis or	7
treatment. See id. ¶ 13. The purpose behind this protection is to assure the patient	8
that their communications will not be disclosed without their consent, so as to	9
encourage the patient to speak fully and frankly to the medical provider without the	10
fear of publication. See id. ¶ 6.	11
{29} 	Assuming 	the 	metropolitan 	court 	finds 	that 	Defendant 	intended 	the	12
communication to be confidential, the remaining question that requires factfinding	13
is whether Defendant voluntarily acquiesced in, or consented to, the disclosure. In	14
re Sherry C. & John M. stands for the proposition that a patient who has actual	15
knowledge that the communication will be disclosed, and voluntarily participates in	16
the communication with that knowledge, has consented to or acquiesced in the	17
disclosure of their physician-patient communication. See 1991-NMCA-137, ¶ 25.	18
Whether this exception applies depends on a finding as to whether Defendant	19

15
actually knew of the law enforcement officer’s presence, not whether she should	1
have known.	2
{30} 	We conclude the metropolitan court erred in adopting an objective test,	3
focused on what a hypothetical reasonable person should have known. Rather, the	4
metropolitan court should have looked to the purposes served by the privilege under	5
the circumstances at issue here, and made findings of fact as to: (1) whether	6
Defendant intended the communication to be confidential; (2) whether Defendant	7
actually knew that Officer Cordova had entered the ambulance; and, if so, (3)	8
whether Defendant’s subsequent conduct was sufficient to constitute voluntarily	9
consent to or acquiescence in the disclosure of her communications to Deputy	10
Cordova. Because the metropolitan court’s findings do not answer these questions,	11
but instead look to whether Defendant “should have” known a law enforcement	12
officer had entered the ambulance, we reverse and remand to allow the metropolitan	13
court to make the necessary findings, and to apply the correct legal standard, as set	14
forth in this opinion, to those findings.	15
II. 	Defendant Was Not Denied Due Process by Delay in District Court in	16
Deciding Her Appeal	17
{31} 	Defendant contends that the four-year period between the filing of her notice	18
of appeal and the district court’s decision on appeal denied her due process on	19
appeal. We do not agree.	20

16
{32} 	The delay in the district court occurred because Defendant’s counsel filed two	1
notices of appeal: one properly noticing an appeal from the metropolitan court to the	2
district court, filed on August 26, 2015, and a second notice of appeal to this Court	3
from the district court, filed on December 1, 2015. At the time Defendant’s original	4
notice of appeal was filed, appeals from convictions of DWI in the metropolitan	5
court were properly taken to the district court. See § 34-8A-6. Only after the appeal	6
was decided by the district court could a further appeal be taken to this Court. See	7
id.	8
{33} 	Over four years after Defendant appealed to the district court, her defense	9
counsel petitioned the court either for dismissal based on the delay in reaching a	10
decision or for expedited consideration of Defendant’s appeal. Defense counsel	11
withdrew the improperly filed notice of appeal to this Court shortly after November	12
11, 2019. The district court then entered a decision on Defendant’s appeal.	13
{34} 	Because Defendant presented no evidence that the delay prejudiced her, and	14
because the district court’s finding that the delay was attributable to Defendant rather	15
than the government, is supported by substantial evidence, we affirm.	16
{35} 	We apply the framework established by State v. Garcia, 2019-NMCA-056,	17
¶ 46, 450 P.3d 418, to determine whether appellate delay violates a criminal	18
defendant’s right to due to process. We emphasized in Garcia that “not every delay	19
in the appeal of a case, even an inordinate one, violates due process.” Id. ¶ 41	20

17
(alteration, internal quotation marks, and citation omitted). Whether appellate delay	1
is sufficiently egregious to violate a defendant’s due process rights turns first on: (1)	2
whether the delay has prejudiced the defendant, and, if so, (2) whether the	3
government’s responsibility for the delay and the nature and severity of the prejudice	4
warrant dismissal. Id. ¶ 46.	5
{36} 	This Court generally looks to two potential forms of prejudice: (1) prejudice	6
to a defendant’s ability to assert their claims on appeal, and (2) prejudice at trial or	7
on resentencing following remand. Id. Defendant has claimed no prejudice on appeal	8
or on remand from the delay, nor do we find any such prejudice. Defendant argues	9
that she lost job opportunities because of the pendency of the appeal. She bases this	10
claim, however, on argument of counsel, unsupported by facts. See id. ¶ 47 (holding	11
that vague, speculative allegations of prejudice are insufficient). Even if this claim	12
of job loss were somehow proved, it is not the type of prejudice found by this Court	13
in Garcia to support a violation of due process. 2019-NMCA-056, ¶ 46. Defendant,	14
therefore, has failed to establish prejudice. Moreover, even if Defendant had	15
established prejudice, we see no error in the district court’s finding attributing the	16
delay to the failure of Defendant’s counsel to follow the procedural rules governing	17
appeals from metropolitan court.	18
{37} 	Where no prejudice was established by Defendant, and the delay was caused	19
by an error of defense counsel, Defendant was not denied due process.	20

18
CONCLUSION	1
{38} 	We reverse the denial of Defendant’s motion to exclude from evidence her	2
privileged communications with the EMT and remand to the district court for	3
findings and decision on Defendant’s motion to suppress consistent with this	4
opinion.	5
{39} 	IT IS SO ORDERED.	6
_________________________________	7
JANE B. YOHALEM, Judge	8
WE CONCUR:	9
_________________________________	10
JENNIFER L. ATTREP, Chief Judge	11
_________________________________	12
KRISTINA BOGARDUS, Judge	13