April 8, 2019- State of New Mexico v. Tom Yazzie, No. A-1-CA-37705

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 	V. 	NO. A-1-CA-37705
5 	TOM YAZZIE,
6 	Defendant-Appellant.
7 	APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 John A. Dean, Jr., District Judge
9 	Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur, Chief Public Defender
13 	Santa Fe, NM
14 	Steven J. Forsberg, Assistant Appellate Defender
15 	Albuquerque , NM
16 	for Appellant
17 	MEMORANDUM OPINION
18 	VANZI, Judge.
19 	{I} 	Defendant appeals his conviction for aggravated driving under the influence
20 	of an intoxicating liquor or drugs, contrary to NMSA 1978, Section 66-8-102(C)(l)
21 	(2016). [RP 154] Defendant has filed a memorandum in opposition, which we have
Court of Appeals of New Mexico
Filed 4/8/2019 9:25 AM
Mark Reynolds

1 duly considered. We remain unpersuaded that our initial proposed disposition was
2 incorrect, and we therefore affirm.
3 	{2} 	Defendant continues to argue that the district court erred in admitting the
4 breath alcohol test (BAT) results into evidence because the State did not introduce
5 sufficient evidence that the breach machine's certification was current. [MIO 1] "We
6 review an alleged error in the admission of evidence for an abuse of discretion." State
7 v. Martinez, 2007-NMSC-025,, 7, 141 N.M. 713, 160 P.3d 894. The district court
8 abuses its discretion when it admits evidence for which the necessary foundation has
9 not been laid. Statev. Gardner, 1998-NMCA-160, ,5, 126N.M.125, 967P.2d465.
10 	{3} 	In order to meet the foundational requirements for admission of a BAT card,
11 	the State must show that the machine was certified by the Scientific Laboratory
12 	Division (SLD) at the time of the test and that the certification was current at the time
13 	the test was taken. See Martinez, 2007-NMSC-025,, 9; State v. Granillo-Macias,
14 	2008-NMCA-021, , 	20, 	143 N.M. 455 , 176 P.3d 1187. Under Rule 11-104(A)
15 	NMRA, the district court need only be satisfied that the foundational requirements
16 	for admission have been established by a preponderance of the evidence. See
17 	Martinez, 2007-NMSC-025, ,, 19 , 23.
18 	{4} 	In this case, Officer Weaver testified that the machine was certified "at the
19 time," and that he saw the certification attached to the machine which indicated that
2

1 the machine was certified. [DS 3; RP 67] This testimony was sufficient to meet the
2 	State' s burden to make a threshold showing of admissibility. To the extent Defendant
3 	argues that Officer Weaver was required to testify more specifically regarding the
4 	contents 	of 	the 	certification 	sticker 	on 	the 	machine, 	we 	disagree. 	See
5 	Granillo-Macias , 2008-NMCA-021, 	,-f 20 	(holding that similar testimony 	was
6 sufficient to meet the state' s foundational requirement because the officer's testimony
7 that the certification was attached to the machine was sufficient to allow the district
8 court to conclude that the officer testified to a current SLD certification).
9 	{5} 	Accordingly, for the reasons stated above and in our notice of proposed
10 	summary disposition, we affirm Defendant' s conviction.
11 	{6}
12
13
IT IS SO ORDERED.
14 WE CONCUR:
15 	~Az_16 JEN~ ATTREP, Judge
LINER. MEDINA, Judge
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