December 22, 2015 – State of New Mexico v. Tarrah Hobbs, No. 33,715

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: December 22, 2015
NO. 33,715
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
TARRAH HOBBS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM
for Appellee
Ben A. Ortega
Albuquerque, NM
for Appellant

New Mexico District Attorneys Association
Robert P. Tedrow
Kari E. Brandenburg, District Attorney
Michelle S. Garcia, Assistant District Attorney
Albuquerque, NM
for Amicus Curiae

OPINION
VANZI, Judge.
{1} 	The Legislature has delegated to the Scientific Laboratory Division of the
Department of Health (SLD) administrative authority over blood and breath tests
administered to persons suspected of driving while under the influence of intoxicants.
See NMSA 1978, § 24-1-22 (2003). In State v. Martinez, 2007-NMSC-025, 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 Rule 11-104(A) NMRA foundational requirement for admission
of the BAT results into evidence. Martinez, 2007-NMSC-025, ¶¶ 9, 11-12, 23.
Martinez went on to hold that this foundational requirement was 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. Id. ¶ 23. Defendant Tarrah Hobbs contends that, although this
foundational requirement was satisfied in her case, the trial court should not have
admitted her BAT results into evidence because there was no testimony that the
officer who administered her BAT “witnessed documentation from SLD approving”
(1) the gas tank (also referred to as the gas canister) that was attached to the
breathalyzer instrument and (2) the gas reference standard inside the tank, “much less

1 The parties dispute whether Defendant preserved a foundational challenge to
the gas reference standard within the tank as well as to the tank itself. Given our
disposition, we need not and do not reach the preservation issue.
2
that such documentation was present at the time the test was taken.”1 The district court
affirmed and so do we, although on different grounds.
BACKGROUND
{2} 	In the early morning hours of January 14, 2012, Officer Richard Locke of the
Albuquerque Police Department (APD) pulled Defendant over for driving 51 miles
per hour in a 40 mile-per-hour zone. Defendant appeared to be intoxicated and,
pursuant to APD policy, Officer Locke requested a special unit to investigate her for
driving under the influence (DUI).
{3} 	Officer Jared Frazier responded to the scene and administered field sobriety
tests, which Defendant failed. Officer Frazier determined that Defendant was impaired
and placed her under arrest for DUI. After Defendant agreed to submit to a BAT,
Officer Frazier started the required twenty-minute deprivation period.
{4} 	Officer Frazier was certified by the SLD to administer BATs on the Intoxilyzer
8000 instrument (IR 8000), which he called the “machine,” and he administered
Defendant’s BAT on the IR 8000 located at the prisoner transport center. Officer
Frazier testified that he used a clean mouthpiece, explained the procedure to
Defendant, and ran a total of five air-blank checks. He testified that air-blank checks

3
flush out the machine and check the ambient air for interference, and that all of the air-
blank checks he ran resulted in readings of .00. He also explained the range of
allowable results on calibration checks of the IR 8000 and testified that diagnostic and
calibration checks were run and passed. Officer Frazier further testified that he saw
a copy of the SLD certification affixed to the front of the IR 8000 and that the
machine appeared to be functioning normally. The machine collected two breath
samples from Defendant.
{5} 	The State moved to admit Defendant’s BAT results. At defense counsel’s
request, the trial court deferred ruling on the admission of the BAT results until after
cross-examination. On cross-examination, Officer Frazier conceded that he did not
know who had prepared the SLD certification of the IR 8000; nor did he have
anything to do with ensuring that the machine complied with SLD regulations, or with
inspections, or other accuracy aspects of the machine.
{6} 	When questioned specifically about the gas canisters used on the machine,
Officer Frazier testified that he has nothing to do with their approval, selection, or
purchase, and that he did not know the make, model, or serial number of the canister
used on the day of Defendant’s test. About eight months after Defendant’s BAT,
Officer Frazier went to SLD and the APD Crime Lab, where he learned that the gas

4
canisters used on the machine were the same make and model as those listed in the
SLD regulations.
{7} 	At the end of Officer Frazier’s testimony, defense counsel moved to exclude
Defendant’s BAT results on the ground that they lacked a sufficient foundation to
support their admission into evidence. Specifically, defense counsel argued that the
gas canister is a piece of equipment separate from the IR 8000, and that Officer
Frazier failed to “make the connection that this is a SLD approved piece of
equipment” because he did not know the canister’s serial number, the manufacturer,
or its expiration date.
{8} 	The trial court admitted the BAT results over Defendant’s objection. Officer
Frazier was recalled to the stand and testified that Defendant’s two BAT results were
.11. The trial court found Defendant guilty of DUI under New Mexico’s “per se” DUI
statute, which provides that it is illegal for a person to drive a vehicle with “an alcohol
concentration of eight one hundredths [.08] or more in [his or her] blood or breath.”
See NMSA 1978, § 66-8-102(C)(1) (2010). Defendant appealed to the Second Judicial
District Court, challenging the admission of her BAT results on the basis that the State
failed to establish that the gas canister complied with “accuracy ensuring” SLD
regulations. The district court affirmed on the ground that “Officer Frazier’s testimony

5
was sufficient to establish, by a preponderance of the evidence, the [gas reference
standard] was approved by SLD.” This appeal timely followed.
DISCUSSION
Standard of Review
{9} 	“The interpretation of an administrative regulation is a question of law that we
review de novo,” applying the same rules we use to interpret statutes. State v. Willie,
2009-NMSC-037, ¶ 9, 146 N.M. 481, 212 P.3d 369. “The principal command of
statutory construction is that the court should determine and effectuate the intent of
the [L]egislature, using the plain language of the statute as the primary indicator of
legislative intent.” Id. (alteration, internal quotation marks, and citation omitted). If
the plain meaning is “doubtful, ambiguous, or if an adherence to the literal use of the
words would lead to injustice, absurdity or contradiction, we will construe the statute
according to its obvious spirit or reason.” Id. (alteration, internal quotation marks, and
citation omitted).
{10} 	“We review an alleged error in the admission of evidence for an abuse of
discretion” and will overturn a trial court’s evidentiary ruling “only when the facts and
circumstances 	of 	the 	case 	do 	not 	support 	[its] 	logic 	and 	effect.” 	Martinez,
2007-NMSC-025, ¶ 7 (internal quotation marks and citation omitted).

6
Statutory Structure
{11} 	New Mexico’s Implied Consent Act (ICA) requires that “[a] test of blood or
breath or both, approved by the [SLD] pursuant to the provisions of Section 24-1-22
NMSA 1978, shall be administered at the direction of a law enforcement officer
having reasonable grounds to believe the person to have been driving a motor vehicle
within this state while under the influence of intoxicating liquor or drug.” NMSA
1978, § 66-8-107(B) (1993). Such test results “may be introduced into evidence in any
civil action or criminal action arising out of the acts alleged to have been committed
by the person tested for driving a motor vehicle while under the influence of
intoxicating liquor or drugs.” NMSA 1978, § 66-8-110(A) (2007). Pursuant to Section
24-1-22, the Legislature has delegated authority over all aspects of such testing to
SLD. That statute provides, in pertinent part, as follows:
A. The [SLD] is authorized to promulgate and approve satisfactory
techniques or methods to test persons believed to be operating a motor
vehicle . . . under the influence of drugs or alcohol and to issue
certification for test operators and their instructors. . . . The [SLD] is
further authorized to establish or approve quality control measures for
alcohol breath testing and to establish or approve standards of training
necessary to ensure the qualifications of individuals conducting these
analyses or collections.
B. The [SLD] shall establish criteria and specifications for equipment,
training, quality control, testing methodology, blood-breath relationships
and the certification of operators, instructors and collectors of breath
samples.

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Section 24-1-22(A), (B).
The Regulations
{12} 	Under its statutory authority, the SLD has promulgated regulations in the form
of 	a 	rule 	(Rule) 	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 [ICA].”
7.33.2.2 NMAC. The stated objective of the many regulations set forth in the Rule is
“to establish standards and procedures” for certification and “methods of taking and
analyzing samples” for such testing. Id. 7.33.2.6 NMAC.
{13} 	The Rule defines “Breath alcohol instrument” as “[a]ny evidential breath testing
device that is capable of analyzing breath to establish the concentration of alcohol
contained in a breath sample” and requires that “[s]uch instruments must be approved
and individually certified by SLD for use in testing pursuant to the [ICA] and this
rule.” 7.33.2.7(G) NMAC (emphasis added). It defines “Equipment” as “[d]evices
which are not a component of the breath alcohol instrument but assist in meeting the
requirements of an evidentiary breath test, including but not limited to simulators, gas
tanks, gas brackets, and reference standards.” 7.33.2.7(L) NMAC. Defendant’s
argument presumes that the Rule 11-104(A) foundational requirements applicable to

8
an individual “breath alcohol instrument” also apply to individual pieces of
“equipment”—here, the gas tank attached to the instrument and the gas reference
standard it contains. The Rule itself, however, treats the “breath alcohol instrument”
(hereinafter, instrument) very differently from “equipment.”
{14} 	SLD selects the instruments used in New Mexico based on criteria that include
performance in SLD’s evaluation process, field history, manufacturer support
capability, and evaluations by other users, including approval by the National
Highway Traffic Safety Administration. 7.33.2.9 NMAC. The Rule requires that both
instruments and equipment (as relevant here, gas tanks and reference standards) must
be approved by SLD before they may be used in BATs. See 7.33.2.9(A) NMAC
(stating that manufacturers of instruments and reference standards must “submit their
instrumentation and equipment to SLD for approval”); 7.33.2.9(H) NMAC (stating
that SLD may withdraw approval of instrument and equipment “if the manufacturer
fails to comply with the provisions of the approval criteria or the terms of any
contracts with SLD”). It also requires that SLD maintain a list of the instruments and
equipment it has approved for use under the ICA. See 7.33.2.16(B) NMAC. Finally,
as the State notes in its answer brief, the SLD publishes a list of SLD approved breath
and blood alcohol testing or collection devices. Although there is nothing in the record
concerning the contents of the list in 2012, the current list, updated on April 2, 2014,

2 The BAT in this case was conducted with an instrument that uses a gas
reference 	standard. 	“Simulator 	solutions” 	are 	reference 	standards 	used 	with
instruments that measure breath alcohol by a different methodology. Defendant
sometimes refers to the reference standards as the “simulator solution” or “solution,”
but there is no dispute that a gas reference standard was used in this case.
9
identifies the IR 8000 as the approved instrument; identifies by manufacturer and
model approved gas reference standard tanks; and clarifies that “[a]ll tanks, which are
compatible with the [IR] 8000, containing an approved reference standard, are
approved for use.” N.M. Dep’t of Health, List of Approved Breath & Blood Alcohol
Testing 	or 	Collection 	Devices 	& 	Accessories, 	available 	at
http://nmhealth.org/publication/view/general/1537/.
{15} 	As to equipment, the only other requirements stated in the Rule are that breath
alcohol samples “shall be collected and analyzed pursuant to the procedures
prescribed by SLD and employing only SLD approved equipment[,]” 7.33.2.15(B)(1)
NMAC (emphasis added), and that “calibration checks” of instruments must be
performed 	using 	gas 	reference 	standards 	that 	have 	been 	approved 	by 	SLD.
7.33.2.14(C)(2)(b) NMAC. The Rule defines “Calibration check” as “[t]he analysis
of an externally delivered, controlled, ethanol vapor specimen of known alcohol
concentration” and requires that “SLD shall determine the breath alcohol simulators 2
or gases to be used.” 7.33.2.7(I) NMAC. In a calibration check, the instrument is
checked to ensure that its analysis of one or more reference standards (here, gas) of

10
known 	alcohol 	concentration 	produces 	a 	reading 	within 	a 	specified 	range.
7.33.2.14(C)(2)(b)(i)-(iii) NMAC.
{16} 	In contrast to equipment, instruments, once approved, must also be certified by
SLD. See 7.33.2.10(A) NMAC (“[B]reath alcohol instruments to be used for implied
consent evidential testing must be approved and certified by SLD.”). The Rule’s
certification requirements for instruments are extensive. 7.33.2.10 NMAC. So too, are
the certification requirements for operators, 7.33.2.11 NMAC; key operators,
7.33.2.12 NMAC; and operator instructors, 7.33.2.13 NMAC. For example, each
individual instrument must be certified “for a period of up to one year,” and “[a]
certificate shall be issued for each instrument and shall be maintained by the
responsible agency.” 7.33.2.10(A) NMAC. The certification of each instrument must
be renewed annually based on compliance with the Rule and, again, a certificate must
be issued for each instrument and maintained by the responsible agency. 7.33.2.10(C)
NMAC. To obtain initial certification an individual instrument must be inspected and
calibration-checked by SLD, 7.33.2.10(A)(1) NMAC, and at least one certified key
operator must be responsible for its maintenance. 7.33.2.10(A)(2) NMAC. The Rule
contains numerous continuing requirements for individual instruments, including
submission of logbooks and records at scheduled times; annual analysis of four
proficiency samples; calibration checks at least once every seven days or with each

11
subject test or both; biannual inspections that include evaluation of the instrument’s
electronic functions and settings, analysis of a series of alcohol controls with an
accuracy requirement of the greater of +5 percent or .005 on all target values, and
review of the instrument’s sensitivity for the detection of any interfering substances.
7.33.2.10(B)(1) NMAC. For instruments used at fixed locations, the Rule imposes
additional requirements. 7.33.2.10(B)(2) NMAC. SLD may deny, suspend, or revoke
the certification of any instrument for ICA testing on grounds including that the
instrument is not on the SLD-approved list and that calibration results do not meet
criteria established by SLD. 7.33.2.10(D)(1) NMAC.
{17} 	As noted, the Rule requires that breath samples must be collected and analyzed
“pursuant to the procedures prescribed by SLD and employing only SLD approved
equipment and certified instruments.” 7.33.2.15(B)(1) NMAC. These procedures
include collection and analysis by certified operators or certified key operators, a good
faith attempt to collect and analyze at least two samples, taken not more than fifteen
minutes apart and after a twenty-minute period (often referred to as the “deprivation
period”) during which the subject has not had anything to eat, drink or smoke.
7.33.2.15(2) NMAC. As relevant here, the Rule also specifies the following
“minimum requirements” for an ICA breath sample: (a) a system air-blank analysis
before each sample; and (b) a calibration check using SLD-approved gas standards in

12
accordance with one or both of the following procedures: (i) the instrument must be
maintained and calibration-checked by the key operator, with calibration checks at
least once every seven days resulting in readings within prescribed ranges upon
analysis of two separate gas standards, each simulating a different specified alcohol
concentration; (ii) a single calibration check with each subject test using a gas
standard that simulates 0.08 grams per 210 liters, resulting in a reading within ±0.01
of the specified standard. 7.33.2.14(C)(2) NMAC.
Confirmation That SLD Has Approved the Equipment On a Breath Alcohol
Instrument Is Not Required by SLD Regulations and Is Not a Foundational
Prerequisite to Admission of BAT Results
{18} 	Our Supreme Court has held that, to meet foundational requirements under Rule
11-104(A), the State need not show strict compliance with all SLD regulations set
forth in the Rule, but only with those regulations that are “accuracy-ensuring.”
Martinez, 2007-NMSC-025, ¶ 11 (citing State v. Dedman, 2004-NMSC-037, ¶ 13, 136
N.M. 561, 102 P.3d 628, overruled on other grounds by State v. Bullcoming, 2010-
NMSC-007, 147 N.M. 487, 226 P.3d 1). In Martinez, our Supreme Court held that
SLD regulations governing certification of instruments “clearly exist to ensure that the
result of a test conducted on a breathalyser is accurate[,]” and thus, a threshold
showing of current SLD certification of an instrument at the time of the BAT is a
foundational 	prerequisite 	for 	admission 	of 	BAT 	results 	into 	evidence.

13
2007-NMSC-025, ¶¶ 11-12. In Dedman, the Court held that the purpose of an SLD
regulation requiring collection of a blood alcohol sample by “veni-puncture” was not
to ensure the accuracy of the test and, as a result, a showing of compliance with that
requirement was not a foundational prerequisite to the admissibility of blood alcohol
reports. 2004-NMSC-037, ¶¶ 14-19.
{19} 	Defendant asserts that SLD approves tanks and gases because they are used in
“self-calibration checks by an [IR 8000] during a breath test” and that “[i]t follows
that both the process of approval and the purpose of the tanks and gases should ensure
the accuracy of breath test results.” She concludes that “[t]he minimum foundation for
showing approval of the simulator solution [sic] is the same as that for showing
certification of a breath machine[,]” and therefore, “upon objection, the officer
testifying for this foundation should be aware of SLD documentation asserting the
approval of both the certification of the breath machine and approval of accessories.”
The argument lacks merit.
{20} 	The certification requirements for the instrument relate to its “routine function
. . . in order to [ensure] that it gives accurate readings.” Dedman, 2004-NMSC-037,
¶ 12 (internal quotation marks and citation omitted). Similarly, “[t]he purpose of
calibration is to ensure that the machine is working properly so that a valid
breathalyzer test result is obtained.” State v. Montoya, 1999-NMCA-001, ¶ 12, 126

14
N.M. 562, 972 P.2d 1153. The calibration check specified in the Rule checks the
instrument to ensure that its analysis of one or more gas reference standards of known
alcohol 	concentration 	produces 	a 	reading 	within 	a 	specified 	range.
7.33.2.14(C)(2)(b)(i)-(iii) NMAC. If it does, the instrument is deemed to be
functioning properly; if it does not, there is a problem. While it is possible that a given
tank may contain a gas that is not at the alcohol concentration specified by the Rule,
the defect presumably would be revealed in an instrument reading outside the range
prescribed by the Rule. In this case, Officer Frazier testified that calibration checks
were run and passed.
{21} 	The Legislature has delegated full authority to SLD over the testing of persons
believed to be DUI, including the establishment of criteria and specifications for
equipment, quality control, testing methodology and standards, and the certification
of breath alcohol instruments, operators, and instructors. Section 24-1-22(A), (B). And
the regulations embodied in the SLD Rule plainly treat instruments very differently
from equipment used with instruments. As discussed, the Rule imposes extensive and
explicit certification requirements on instruments (as well as operators, key operators,
and operator instructors), including that each individual instrument have a current
certificate evidencing compliance with SLD regulations. In contrast, the only
requirements for equipment stated in the Rule are that SLD approve and maintain a

15
list of approved manufacturer’s equipment, see 7.33.2.9(A) NMAC; 7.33.2.16(B)
NMAC; that SLD-approved equipment be used to collect and analyze breath alcohol
samples, see 7.33.2.15(B)(1) NMAC; and that instrument calibration checks be
performed using SLD-approved gas reference standards, see 7.33.2.14(C)(2)(b)
NMAC. The Rule contains no requirement that SLD or certified instrument operators
must confirm that each individual tank and its contents are SLD-approved before a
BAT is administered. The Rule itself contains no indication that such individual
confirmation is necessary to ensure the accuracy of a BAT result. And the SLD’s
current approved list suggests the contrary, stating that “[a]ll tanks, which are
compatible with the [IR] 8000, containing an approved reference standard, are
approved for use.” N.M. Dep’t of Health, List of Approved Breath & Alcohol Testing
or Collection Devices & Accessories, available at http://nmhealth.org/ publication
/view/general/1537/.
{22} 	Neither the plain language nor the “obvious spirit or reason” of the SLD Rule
even suggests that the regulations requiring SLD approval of equipment are “accuracy
ensuring” in the same manner as the regulations imposing numerous certification
requirements on SLD-approved instruments on a per-instrument basis. And Defendant
has provided no basis from which to conclude that confirmation by the certified
instrument operator at the time of the BAT that the gas tank and the reference standard

16
it contains are SLD-approved is necessary to ensure the accuracy of the BAT. We
conclude that the State need not make a threshold showing that the certified operator
of a certified breath alcohol instrument confirmed at the time of the test that
equipment attached to the instrument is SLD-approved in order to lay a sufficient
foundation under Rule 11-104(A) for the admission of BAT results into evidence. As
noted in Martinez, “once the trial court determines that the [s]tate has met the
foundational requirements for the admission of a BAT card, a defendant may
successfully challenge the reliability of the breath test.” 2007-NMSC-025, ¶ 24. And
a defendant is entitled to discovery concerning SLD-approved equipment to use in
challenging the foundation for or the reliability of his or her BAT results. Id.
CONCLUSION
{23} 	The trial court did not abuse its discretion in admitting Defendant’s BAT results
into evidence. We affirm.
{24} 	IT IS SO ORDERED.
__________________________________
LINDA M. VANZI, Judge
WE CONCUR:
_______________________________
JAMES J. WECHSLER, Judge
_______________________________
TIMOTHY L. GARCIA, Judge