April 14, 2022- State of New Mexico v. Roger Warford, No. A-1-CA-36798

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

— Court of Appeals of New Mexico
Opinion Number: Filed 4/14/2022 11:43 AM

Filing Date: April 14, 2022 Lh / >
No. A-1-CA-36798 Mark Reynolds

STATE OF NEW MEXICO,
Plaintiff-Appellee,

V.

ROGER WARFORD,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Fred T. Van Soelen, District Judge

Hector H. Balderas, Attorney General
Eran Sharon, Assistant Attorney General
Santa Fe, NM

for Appellee

Lindsey Law Firm, LLC
Daniel R. Lindsey
Clovis, NM

for Appellant

OPINION	1
MEDINA, Judge.	2
{1} 	After conditionally pleading guilty to driving while under the influence of	3
intoxicating liquor or drugs (DWI), contrary to NMSA 1978, § 66-8-102(A) (2010,	4
amended 2016) 1, Roger Warford (Defendant) appeals the district court’s denial of	5
his motion to exclude the results of a blood draw performed pursuant to the Implied	6
Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2019).	7
Defendant argues the phlebotomist who drew his blood was not authorized to do so	8
because, according to Defendant, a phlebotomist is not a laboratory technician under	9
NMSA 1978, § 66-8-103 (1978) and the phlebotomist in this case was not employed	10
by a hospital because her direct employer was a laboratory that contracted with the	11
hospital where she worked. We conclude, consistent with our Supreme Court’s	12
recent 	decision 	in 	State 	v. 	Adams, 	2022-NMSC-008, 	503 	P.3d 	1130, 	that	13
phlebotomists who have adequate training and experience are qualified as laboratory	14
technicians to perform legal blood draws under the Implied Consent Act so long as	15
they were employed to do so by a hospital or physician. Id. ¶ 1. We further conclude	16
that, given the facts and circumstances presented in this case, the phlebotomist who	17
1 Section 66-8-102(D)(3) was held unconstitutional by this Court in State v.
Storey, 2018-NMCA-009, ¶ 32, 410 P.3d 256. That subsection refers to aggravated
DWI, which is not at issue here, and Storey did not affect the constitutionality of the
subsections we reference in this opinion.

2
drew Defendant’s blood was employed by a hospital. Finally, we conclude that	1
Defendant’s additional argument that there was insufficient evidence to support the	2
enhancement of his DWI conviction is without merit. We affirm.	3
BACKGROUND	4
{2} 	In January 2015, Defendant drove into a motel parking lot and parked next to	5
a vehicle in which two police officers were conducting surveillance of a motel room	6
pending receipt of a search warrant. Defendant stepped out of his truck, staggered to	7
the passenger side of the officers’ vehicle, and asked them if they were police	8
officers. Defendant then walked towards the hotel, went upstairs, and approached	9
the room the officers intended to search. The officers prevented Defendant from	10
entering the room. Defendant had bloodshot and watery eyes, an odor of alcohol on	11
his breath, and slurred speech. He also had two sixteen-ounce beer cans, one half	12
empty and one unopened, in his jacket. Defendant admitted to having consumed five	13
to six sixteen-ounce beers.	14
{3} 	A uniformed officer was summoned to investigate Defendant for DWI.	15
Defendant failed standardized field sobriety tests and was arrested for DWI.	16
Defendant agreed to a blood test and was transported to the Plains Regional Medical	17
Center (PRMC), a hospital in Clovis, where Mirna Gaxiola, a certified phlebotomist,	18
drew Defendant’s blood for testing.	19

3
{4} 	Defendant was charged with DWI (4th Offense). Defendant moved to exclude	1
his 	blood 	test 	results. 	Defendant 	asserted 	the 	evidence 	was 	insufficient 	to	2
demonstrate the testing was conducted in accordance with the Implied Consent Act,	3
under 	Section 	66-8-103, 	which 	provides 	that 	“[o]nly 	a 	physician, 	licensed	4
professional or practical nurse or laboratory technician or technologist employed by	5
a hospital or physician shall withdraw blood from any person in the performance of	6
a blood-alcohol test.” Id.; see also § 66-8-109(A) (“Only the persons authorized by	7
Section 66-8-103 . . . shall withdraw blood from any person for the purpose of	8
determining its alcohol or drug content.”).	9
{5} 	The State responded that under Section 66-8-103, laboratory technicians are	10
included in the categories of approved medical personnel authorized to draw blood	11
under Section 66-8-109 and that under 7.33.2.15(A)(1) NMAC, the term laboratory	12
technician includes phlebotomists. From this, the State argued that Gaxiola was	13
authorized to draw Defendant’s blood under Section 66-8-103 because she attended	14
and completed a Phlebotomy Technique Training course at Eastern New Mexico	15
University, and upon completion was certified as a Phlebotomy Technician.	16
{6} 	During a hearing on the motion, Defendant argued the district court was	17
required to exclude the blood test because Gaxiola did not fall into any of the	18
statutory categories, and therefore was not qualified to conduct the test. Defendant	19
provided the district court with a copy of a recorded pretrial interview he conducted	20

4
of Gaxiola in which she stated she was a certified phlebotomist, not a licensed	1
professional, laboratory technologist or technician, or hospital employee.	2
{7} 	At a later hearing, the district court denied Defendant’s motion to exclude,	3
explaining that, despite Gaxiola’s statements, based on its own legal research and	4
given Gaxiola’s status as a phlebotomist for TriCore Laboratory (TriCore), which	5
contracts with the hospital to perform all of the hospital’s blood services, she “is a	6
technician under the statute employed by the hospital for the purposes of the Implied	7
Consent Act.”	8
{8} 	Defendant entered a conditional plea of no contest to DWI, reserving the right	9
to appeal the ruling on any motion filed in the case. Defendant then appealed to this	10
Court. After ordering supplemental briefing on two issues,2 we certified this case to	11
the New Mexico Supreme Court, as it presented a similar question of statutory	12
construction to six other cases before our Supreme Court.	13
{9} 	Following acceptance of the certification of this case, our Supreme Court	14
issued an opinion in Adams, holding that an emergency medical technician (EMT)	15
who was employed by a hospital or physician and had adequate training and	16
experience in performing blood draws qualified as a “laboratory technician” for the	17
2 The parties were ordered to brief (1) whether Section 66-8-103 requires a
laboratory technician to be employed by a hospital or physician; and (2) assuming
Gaxiola was a laboratory technician, whether she was employed by a hospital or
physician under Section 66-8-103.

5
purposes of Section 66-8-103. Adams, 2022-NMSC-008, ¶ 34. Our Supreme Court	1
subsequently quashed certification of this case, returning it to this Court.	2
DISCUSSION	3
I. 	The District Court’s Denial of the Motion to Exclude the Blood Test	4
Results Was Not an Abuse of Discretion	5
{10} 	Generally, “[w]e review the [district] court’s decision to exclude or admit	6
evidence for an abuse of discretion.” State v. Hanson, 2015-NMCA-057, ¶ 5, 348	7
P.3d 1070. “This case requires us to engage in statutory interpretation to determine	8
what the appropriate foundation is for admitting the results of blood tests to	9
determine the content of alcohol or drugs under the Implied Consent Act. We do so	10
under a de novo standard of review.” State v. Garcia, 2016-NMCA-044, ¶ 8, 370	11
P.3d 791.	12
{11} 	The Implied Consent Act provides in relevant part that “[o]nly the persons	13
authorized by Section 66-8-103 . . . shall withdraw blood from any person for the	14
purpose of determining its alcohol or drug content.” Section 66-8-109(A). Section	15
66-8-103 in turn limits the class of persons who may withdraw blood to the	16
following: “Only a physician, licensed professional or practical nurse or laboratory	17
technician or technologist employed by a hospital or physician shall withdraw blood	18
from any person in the performance of a blood-alcohol test.”	19
{12} 	On appeal, Defendant contends that the phlebotomist who drew his blood does	20
not qualify as a “laboratory technician,” is not employed by a hospital or physician,	21

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and, as a result, was not authorized to perform blood draws under Section 66-8-103.	1
We first address whether the phlebotomist in this case qualified as a laboratory	2
technician. Concluding she does, we next address whether the fact that the	3
phlebotomist was employed by TriCore, and not directly with the hospital, renders	4
her unqualified. We conclude that she was qualified.	5
A. 	The Phlebotomist in This Case Qualified as a Laboratory Technician	6
{13} 	In light of our Supreme Court’s recent opinion in Adams and for the reasons	7
that follow, we hold that the district court correctly concluded that Gaxiola was a	8
laboratory technician under Section 66-8-103.	9
{14} 	In Adams, addressing arguments highly similar to those here, our Supreme	10
Court determined that an EMT is qualified to draw blood as a “laboratory technician”	11
under Section 66-8-103 “so long as they were employed to do so by a hospital or	12
physician and have adequate training and experience.” Adams, 2022-NMSC-008,	13
¶ 1. Adams addressed whether this Court’s decision in Garcia, which held that the	14
EMT in that case was not authorized to draw blood under Section 66-8-103,	15
precluded all EMTs from being qualified to draw blood under that provision. See	16
Garcia, 2016-NMCA-044, ¶¶ 1, 21-24. The defendant in Adams argued that Garcia	17
stood for the proposition that EMTs did not fall under the five enumerated categories	18
of those who may perform blood draws and that the Legislature did not intend to	19
authorize legal blood draws by anyone falling outside those categories. Adams,	20

7
2022-NMSC-008, ¶ 17. Our Supreme Court rejected these contentions. The Court	1
concluded, after examining the dictionary definitions of “laboratory technician,” that	2
the term “laboratory technician” was ambiguous on its face, id. ¶¶ 11-15, and then	3
proceeded to examine the legislative purpose of the Implied Consent Act, see id.	4
¶¶ 16-29. As part of this examination, the Court contrasted the facts of Garcia with	5
the facts in Adams. In Garcia, the EMT who performed the blood draw did so	6
improperly and was not trained to perform blood draws for the purposes of the	7
Implied Consent Act. Adams, 2022-NMSC-008, ¶¶ 28-29. In contrast, the EMT who	8
performed the blood draw in Adams had specifically been trained to perform blood	9
draws “for [the] purposes of determining drug and alcohol content” and one of her	10
job duties was to “perform legal blood-alcohol blood draws at the request of law	11
enforcement personnel.” Id. ¶ 31 (alteration, internal quotation marks, and citation	12
omitted). The EMT also had performed thousands of blood draws and performed the	13
contested blood draw in accordance with the instructions in the Scientific Laboratory	14
Division (SLD) kit. Id. ¶ 32.	15
{15} 	Our Supreme Court then held that “EMTs who are employed by a hospital or	16
physician and who possess the proper education and experience” are qualified as	17
laboratory technicians to perform blood draws under Section 66-8-103. Adams,	18
2022-NMSC-008, 	¶ 34. 	In 	so 	holding, 	our 	Supreme 	Court 	observed 	that	19
“[p]rohibiting medical professionals who possess such training in this area from	20

8
administering blood draws would needlessly impose burdens on the discovery and	1
removal of the intoxicated driver and, thus, thwart the legislative policy.” Id.	2
(internal quotation marks and citation omitted).	3
{16} 	Adams informs our analysis in this case. The State argues that Gaxiola is	4
qualified to draw blood under Section 66-8-103 because the Legislature intended	5
that people with her skills and experience should fall within the “laboratory	6
technician” 	category, 	noting 	that 	SLD’s 	regulations 	specifically 	include	7
“phlebotomists” in the definition of laboratory technicians. See 7.33.2.15(A) NMAC	8
(“The term laboratory technician shall include phlebotomists.”); cf. Adams, 2022-	9
NMSC-008, ¶ 29 (stating that this Court’s opinion in Garcia addressed the EMT’s	10
lack of qualifications to draw blood for the purposes of Section 66-8-103, not	11
whether an EMT with greater experience and training could potentially draw blood	12
under the statute). We agree.	13
{17} 	The record reflects that Gaxiola, like the EMT in Adams, had the requisite	14
training and experience to draw Defendant’s blood. The district court found that	15
Gaxiola, a phlebotomist, was a technician under the statute. Defendant does not	16
contest the finding, which was based on the pretrial interview Defendant submitted	17
to the court. Gaxiola completed a phlebotomy course from Eastern New Mexico	18
University in Portales. Gaxiola stated that upon graduating from the course she	19
received a certificate demonstrating that she was a certified phlebotomist. Soon after	20

9
graduation, she was hired by TriCore as a Clinical Lab Assistant I to perform blood	1
draws at PRMC. She also received additional training in blood draw procedures once	2
placed at PRMC. See Adams, 2022-NMSC-008, ¶ 31 (“[The EMT] testified that she	3
was taught how to perform blood draws by other nurses and technicians [at the	4
hospital].”). Gaxiola explained that she was the only clinical lab assistant working	5
during her shifts, which entailed conducting blood draws during morning rounds at	6
the hospital, and stated that she performed approximately fifty blood draws during	7
each of her shifts.	8
{18} 	Gaxiola also demonstrated knowledge of legal blood draw procedures,	9
including 	ensuring 	the 	SLD 	kit 	was 	sealed 	and 	not 	expired, 	following 	the	10
instructions on the kit, and sealing the kit and returning it to the requesting officer.	11
Gaxiola stated that when law enforcement presented her with individuals for implied	12
consent blood draws, she performed those blood draws in a room designated for law	13
enforcement related blood draws. See Adams, 2022-NMSC-008, ¶ 32 (observing that	14
the EMT could explain the difference between a hospital blood draw and a law	15
enforcement blood draw). And, when officers provided her with SLD blood draw	16
test kits, she only used kits that were sealed and not expired. See Garcia, 2016-	17
NMCA-044, ¶ 4 (“SLD-approved blood draw kits include everything that is needed	18
for 	a 	blood 	draw 	to 	ensure 	continuity 	and 	standardization, 	and 	to 	avoid	19
compromising the accuracy and integrity of blood samples.”). She followed the	20

10
instructions that came with the kit. Once she completed the blood draw, Gaxiola	1
sealed the test kit box and returned it to the requesting officer.	2
{19} 	Consistent with Adams, we conclude that prohibiting phlebotomists—with	3
adequate training and experience to perform legal blood draws—from administering	4
blood draws would thwart the legislative purpose of the Implied Consent Act. 2022-	5
NMSC-008, ¶ 34. We therefore conclude that Gaxiola, who possessed the requisite	6
training and experience to perform blood draws, qualified as a laboratory technician	7
within the meaning of Section 66-8-103, so long as she was employed by a hospital	8
or physician—the matter we turn to next.	9
B. 	The Phlebotomist in This Case Was “Employed” by a Hospital Within	10
the Meaning of Section 66-8-1033
11
{20} 	We next determine whether Gaxiola was an employee of a hospital for the	12
purposes of Section 66-8-103. See Adams, 2022-NMSC-008, ¶ 7 (clarifying in part	13
that “in order for a medical professional to qualify as a laboratory technician for the	14
purposes of performing legal blood draws, the person must be employed by a	15
hospital or physician to perform blood draws”). Defendant argues that even if	16
Gaxiola was “deemed a technician or technologist,” she was not qualified to perform	17
3 During the January 30, 2017 hearing, defense counsel argued that Section 66-
8-103 required a technician to be employed by a hospital and that Gaxiola was not a
hospital employee. The district court later ruled that Gaxiola was an employee of the
hospital for purposes of the statute. We therefore reject the State’s contention that
this issue was not preserved.

11
his blood draw because she was not employed by a hospital or physician as specified	1
in Section 66-8-103. We disagree and explain.	2
{21} 	We first observe that, while Adams stated that Section 66-8-103 requires a	3
laboratory technician or technologist to be employed by a hospital, Adams did not	4
consider what the term “employed” encompassed. See Adams, 2022-NMSC-008,	5
¶¶ 1, 7 (stating that a laboratory technician must be “employed to [draw blood] by a	6
hospital,” but not interpreting the term “employed”). Thus, whether Gaxiola is	7
considered an employee of a hospital for the purposes of Section 66-8-103 is a	8
question of first impression regarding the interpretation of the statute that we review	9
de novo. See State v. Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50.	10
{22} 	“Our primary goal when interpreting statutory language is to give effect to the	11
intent of the [L]egislature.” State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230,	12
141 P.3d 1284. “We first look to the plain meaning of the statutory language.” State	13
v. Farish, 2021-NMSC-030, ¶ 11, 499 P.3d 622. “When words are not otherwise	14
defined in a statute, we give those words their ordinary meaning absent clear and	15
express legislative intention to the contrary. To do so, we consult common dictionary	16
definitions.” Adams, 2022-NMSC-008, ¶ 10 (alteration, internal quotation marks,	17
and citation omitted). “Unless ambiguity exists, [the appellate courts] must adhere	18
to the plain meaning of the language.” Id. (internal quotation marks and citation	19
omitted). We, however, will not do so if the plain meaning “leads to an absurd or	20

12
unreasonable result.” State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96	1
P.3d 801. “A statute is ambiguous when it can be understood by reasonably well-	2
informed persons in two or more different senses.” Adams, 2022-NMSC-008, ¶ 10	3
(internal quotation marks and citation omitted). “If the relevant statutory language	4
is unclear, ambiguous, or reasonably subject to multiple interpretations, then the	5
Court should proceed with further statutory analysis.” State v. Almanzar, 2014-	6
NMSC-001, ¶ 15, 316 P.3d 183. In this context, our courts often have turned to the	7
legislative purpose of the Implied Consent Act to discern legislative intent. See, e.g.,	8
Adams, 2022-NMSC-008, ¶¶ 16-34; Garcia, 2016-NMCA-044, ¶ 24; State v.	9
Wiberg, 1988-NMCA-022, ¶¶ 13-17, 107 N.M. 152, 754 P.2d 529; State v. Trujillo,	10
1973-NMCA-076, ¶ 21, 85 N.M. 208, 510 P.2d 1079. “Accordingly, we analyze	11
these statutes not only within the statutory scheme of the Motor Vehicle Code but	12
also within the context of the policy underlying the offense of DWI. The purpose of	13
our DWI legislation is to protect the health, safety, and welfare of the people of New	14
Mexico.” State v. Johnson, 2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233.	15
{23} 	We first observe that the term “employ” means “[t]o commission and entrust	16
with the performance of certain acts or functions” in addition to its often-used	17
meaning “[t]o hire.” Employ, Black’s Law Dictionary (11th ed. 2019). Defendant	18
advances a strict adherence to the meaning of employ, advocating that a laboratory	19
technician must be directly employed by a hospital or physician. The State, in	20

13
contrast, argues that the term should be construed more broadly in light of the	1
purposes of the Implied Consent Act. We agree with the State.	2
{24} 	We conclude that the term “employ” is ambiguous on its face, in that it can	3
reasonably be understood to have more than one meaning, as both the State and	4
Defendant have argued on appeal. We therefore turn next to the legislative purpose	5
of Section 66-8-103. See Adams, 2022-NMSC-008, ¶ 15. We must analyze the term	6
“through the lens of the Legislature’s intended purpose, which [our Supreme Court	7
has] conclude[d] encompasses two goals: (1) to protect patients subject to a blood	8
draw and (2) to ensure the collection of a reliable blood sample for use in DWI	9
prosecutions.” Id. ¶ 22. Contrary to Defendant’s argument, requiring a laboratory	10
technician to be directly employed by a hospital or physician is not necessary to	11
achieve these purposes. An examination of the facts and circumstances of this case	12
makes this evident.	13
{25} 	Upon completing her phlebotomy class, Gaxiola applied for and was hired as	14
a Clinical Lab Assistant I by TriCore in August or September 2014. PRMC	15
contracted with TriCore to perform blood draws. TriCore placed Gaxiola at PRMC	16
to perform the hospital’s blood draws, where she received additional training in	17
PRMC’s blood-draw procedures. Gaxiola worked at PRMC through TriCore for	18
nearly two years. Gaxiola’s explanation of her job duties as a phlebotomist at PRMC	19
shows that PRMC entrusted her with the performance of blood draws during her	20

14
shifts, even if PRMC did not hire her directly. In sum, the record demonstrates that	1
PRMC contracted with TriCore, who in turn hired Gaxiola, a phlebotomist, to	2
perform legal blood draws, trained her in blood-draw procedures, and determined	3
she was qualified to perform blood draws, including legal blood-draw tests.	4
{26} 	In light of this record, determining that Gaxiola was an employee of the	5
hospital for the purposes of Section 66-8-103 is consistent with the dual purposes of	6
this provision—i.e., ensuring the safety of Defendant and ensuring the reliability of	7
the blood test. See Adams, 2022-NMSC-008, ¶ 34 (“Allowing EMTs who, along	8
with their certification, have the training and experience in the skill of drawing blood	9
to perform legal blood draw tests and who are employed by a hospital or physician	10
to do so, furthers the purpose of the statute to ensure the safety of the patient and the	11
reliability of the blood sample.”). Furthermore, determining that Gaxiola was an	12
employee of PRMC supports Section 66-8-103’s purpose “to deter driving while	13
intoxicated and aid in discovering and removing from the highways the intoxicated	14
driver.” See Adams, 2022-NMSC-008, ¶ 34 (internal quotation marks and citation	15
omitted). It is also consistent with this Court’s and our Supreme Court’s previous	16
constructions 	of Section 	66-8-103 	“to 	broaden, not 	narrow, the category of	17
individuals authorized to draw blood.” Adams, 2022-NMSC-008, ¶ 23; see id. ¶¶ 23-	18
29 (discussing this Court’s decisions in Trujillo, Wiberg, and Garcia). Holding	19
otherwise—i.e., that Gaxiola was not a hospital employee simply because she was	20

15
not directly employed by the hospital or a physician but rather employed by TriCore,	1
a contractor used by the hospital to perform blood draws—would “unnecessarily	2
limit the classes of individuals who could assist in furthering the statute’s legislative	3
purpose” and produce the absurd result of disqualifying technicians the hospital	4
trained to perform implied consent blood draws. See id. ¶ 27 (internal quotation	5
marks 	and 	citation 	omitted); 	Wiberg, 	1988-NMCA-022, 	¶ 	13 	(rejecting 	a	6
construction of Section 66-8-103 as it would “unnecessarily limit the classes of	7
individuals who could assist in furthering the statute’s legislative purpose” of	8
“aid[ing] in discovering and removing the intoxicated driver from the highways”).	9
Consistent with the legislative purpose of the Implied Consent Act, we interpret the	10
term “employ” in Section 66-8-103 to encompass Gaxiola’s relationship to PRMC,	11
which entrusted her with the performance of legal blood draws. See Employ, Black’s	12
Law Dictionary (11th ed. 2019); Adams, 2022-NMSC-008, ¶ 1 (“[S]uch medical	13
professionals are qualified to draw blood under [Section 66-8-103] so long as they	14
were employed to do so by a hospital.” (emphasis added)); see also Adams, 2022-	15
NMSC-008, ¶ 34 (“It is the Court’s responsibility to resolve any ambiguity in	16
Section 66-8-103 in a way that supports the legislative purpose to deter driving while	17
intoxicated and aid in discovering and removing from the highways the intoxicated	18
driver.” (internal quotation marks and citation omitted)).	19

16
{27} 	Therefore, based on the foregoing, we hold that Gaxiola was qualified, under	1
Section 66-8-103, as a laboratory technician employed by a hospital to perform	2
Defendant’s blood draw, and we affirm the district court’s denial of Defendant’s	3
motion to exclude.	4
II. 	The District Court Properly Enhanced Defendant’s DWI Conviction	5
{28} 	Defendant next challenges the use of one of his prior DWI convictions to	6
enhance his DWI sentence in this case, arguing the State did not meet its burden in	7
showing that the prior conviction was counseled. For the reasons that follow, we	8
affirm. A person convicted of DWI who has been convicted of previous DWI	9
charges faces enhanced penalties. See § 66-8-102(F)-(J) (2010). When prior DWI	10
convictions are used to enhance a defendant’s sentence, “[t]he [s]tate bears the initial	11
burden of establishing a prima facie case of a defendant’s previous convictions.”	12
State v. Sedillo, 2001-NMCA-001, ¶ 5, 130 N.M. 98, 18 P.3d 1051. “Proof beyond	13
a reasonable doubt of the prior DWI convictions is not needed.” Id. Once a prima	14
facie case is established, “[t]he defendant is then entitled to bring forth contrary	15
evidence. However, the [s]tate bears the ultimate burden of persuasion on the	16
validity of prior convictions.” Id. (citation omitted).	17
{29} 	The State attached a certified copy of an abstract of record from the Motor	18
Vehicle Division of the Taxation and Revenue Department (1991 Abstract) to its	19
enhancement information. The 1991 Abstract documented Defendant’s August 1990	20

17
DWI arrest, identified a court docket number, and showed that a hearing was held in	1
October 1991; Defendant requested counsel, he entered a plea of guilty, and he	2
received a sentence of ninety days with eighty-three days suspended. In addition to	3
identifying the sentence and fine imposed for the DWI conviction, the “remarks”	4
box on the 1991 Abstract contains the text “P.D. Raina Owen, 620 Roma NW” and	5
is signed by Bernalillo County Metropolitan Court Judge Mark Shapiro.	6
{30} 	Defendant argued below, as he does on appeal, that the 1991 Abstract did not	7
establish that an attorney was appointed to represent him. The district court reviewed	8
the abstract and stated during a hearing that the name of Raina Owen was located in	9
the 1991 Abstract where the name of defense counsel’s name usually appears.	10
Defense counsel suggested that “P.D.” could stand for police department or	11
probation department and that the address of 620 Roma NW might be the address	12
for the Albuquerque Police Department. The district court took the matter under	13
advisement.	14
{31} 	In September 2017, the district court issued a letter decision, finding that the	15
1991 Abstract showed Defendant requested counsel and “includes what appears to	16
be the name and address of an attorney, ‘P.D. Raina Owen, 620 Roma NW.’” The	17
district court noted that the defense had not come forward with evidence challenging	18
the validity of Defendant’s 1991 DWI conviction, rejected Defendant’s argument	19
that the notation “P.D. Raina Owen, 620 Roma NW” could have been the address of	20

18
the police department, and concluded that Defendant’s 1991 prior conviction would	1
be used to enhance Defendant’s sentence.	2
{32} 	The parties appeared for a sentencing hearing during which defense counsel	3
again asserted that “P.D. Raina Owen 620 Roma NW” might be reference to a	4
“police station” or “some other thing” and objected to the district court’s finding that	5
it was documentation of the attorney who represented Defendant in 1991. The	6
district court reiterated that the defense had not come forward with evidence to	7
challenge the validity of the State’s prima facie evidence of Defendant’s prior DWI	8
conviction, and stated: (1) where the name Raina Owen and the 620 Roma address	9
appear on the abstract is the location the court knows the name of defense counsel is	10
located; and (2) based on that knowledge, the most reasonable explanation is that	11
“P.D.” stands for “public defender.” The district court enhanced Defendant’s DWI	12
conviction with his 1991 DWI conviction.	13
{33} 	“The burden on making a prima facie case is not onerous on the [s]tate.” State	14
v. Simmons, 2006-NMSC-044, ¶ 14, 140 N.M. 311, 142 P.3d 899 (discussing	15
habitual offender enhancements). A “prima facie case” is defined as “a party’s	16
production of enough evidence to allow the fact-trier to infer the fact at issue and	17
rule in the party’s favor.” Yurcic v. City of Gallup, 2013-NMCA-039, ¶ 29, 298 P.3d	18
500 (alteration, internal quotation marks, and citation omitted). The 1991 Abstract	19
undisputedly contained the following evidence: (1) Defendant’s 1990 arrest in	20

19
Bernalillo County; (2) Defendant’s request for an attorney; (3) Defendant’s DWI	1
guilty plea; (4) the finding of Defendant’s guilt in 1991; (5) the name and signature	2
of the judge who found him guilty; (6) a hand-written notation of “P.D. Raina Owen,	3
620 Roma NW”; and (7) Defendant’s DWI sentence. The district court used its	4
experience to find the information sufficient to infer that Defendant was represented	5
by counsel, Raina Owen, when he plead guilty to DWI in 1991, because the name	6
Raina Owen appeared on the abstract where the district court expects defense	7
counsel to be identified.4 We conclude that the foregoing was sufficient to meet the	8
State’s initial burden of proving its prima facie case of Defendant’s 1991 DWI	9
conviction. See Sedillo, 2001-NMCA-001, ¶¶ 8-9.	10
{34} 	The burden then shifted to Defendant to show that his prior DWI conviction	11
was invalid by demonstrating that the notation “P.D. Raina Owen, 620 Roma NW”	12
does not indicate Defendant was represented by counsel. See Simmons, 2006-	13
NMSC-044, ¶ 13 (“[T]he [s]tate must make its prima facie showing, including all of	14
the required elements for a prior felony conviction as defined by the habitual	15
offender statute, and then the burden of proof shifts to the defendant.”). Defendant	16
4 Defendant’s unsubstantiated accusation that the district court’s finding was
arrived at through independent investigation of facts outside the record, in violation
of Rule 21-209(C) NMRA, supplies no basis for relief on appeal. See State v. Hall,
2013-NMSC-001, ¶ 28, 294 P.3d 1235 (“It is not our practice to rely on assertions
of counsel unaccompanied by support in the record.” (internal quotation marks and
citation omitted)).

20
did not do so. Instead, Defendant speculated that the initials “P.D.” could stand for	1
“police department” or “probation department” and that “620 Roma NW” might be	2
the address of the Albuquerque Police Department. Counsel’s speculations are not	3
evidence demonstrating the invalidity of a prior conviction. See State v. Cordova,	4
2014-NMCA-081, ¶ 10, 331 P.3d 980 (“[A]rgument of counsel is not evidence.”	5
(internal 	quotation 	marks 	and 	citation 	omitted)). 	To 	the 	extent 	Defendant’s	6
conjectures gave rise to a conflict in the interpretation of the information contained	7
on the 1991 Abstract, the district court, as fact-finder, was entitled to reject	8
Defendant’s interpretation of the evidence. See Sedillo, 2001-NMCA-001, ¶ 1.	9
{35} 	In sum, we conclude that the State met its initial burden of proving a prima	10
facie case of Defendant’s 1991 DWI conviction, and Defendant failed to rebut this	11
showing.	12
CONCLUSION	13
{36} 	For the foregoing reasons, we affirm the district court’s denial of Defendant’s	14
motion to exclude his blood test results and the enhancement of his sentence.	15
{37} 	IT IS SO ORDERED.	16
______________________________	17
JACQUELINE R. MEDINA, Judge	18

—

WE CONCUR:

- IFER L. ATTREP, Judge

7 ie |

ZACHAR\A. IVES, Judge

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