May 25, 2010 – State of New Mexico v. Roxanna Tom, No. 27,549

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: May 25, 2010
NO. 27,549

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

ROXANNA TOM,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF SANJUAN COUNTY
Thomas J. Hynes, District J udge

Gary K. King, Attomey General

Farhan Khan, Assistant Attomey General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant Roxanna Tom filed a motion for rehearing and/or motion to amend
or correct opinion. This Court has considered the motion and the motion is hereby
denied as to rehearing and granted as to amending the opinion to state that we are
addressing only two of the three issues Defendant raises on appeal. The opinion filed
in this case on April 22, 2010, is withdrawn and the following opinion is substituted
therefor.
{2} 	Defendant appeals her conviction for driving while under the influence of
intoxicating liquor (DWI) pursuant to NMSA 1978, Section 66-8-102(A) (2005)
(amended 2007 and 2008). We reverse Defendant’s conviction and remand for a new
trial.
BACKGROUND
{3} 	After dinner with friends and family in Farmington, New Mexico, Defendant,
along with some family members, went out for drinks and dancing at the Turnaround
Bar (the Bar). 	Defendant drove to the Bar around 10:00 p.m. 	While at the Bar,
Defendant split three pitchers of beer with three other people. At approximately 1:00
a.m., a fight broke out in the bar and Defendant and her companions decided to leave.
Defendant testified that she was trying to extract one of her companions from the fray,

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when she was punched or hit with a bottle on the right side of her mouth, and that
patrons in the Bar were throwing things at her and her companions as they fled the
establishment. Defendant testified that she and her companions sought refuge in her
vehicle. However, once in the vehicle, Defendant noticed someone approaching the
car and, believing it to be the waitress who had struck her in the mouth and believing
that the waitress had a bottle in her hand, Defendant started her car, “threw it in
reverse,” and “just took off.” Defendant testified that she “[saw] that waitress running
up, so when I pulled back and started going, [the waitress] was running up beside my
car, and that’s when I just heard a loud shatter on my windshield.”
{4} 	Farmington police officers were dispatched to investigate the fight at the Bar.
Once on the scene, a woman in the parking lot directed officers to Defendant’s
vehicle. As the officers approached Defendant’s car, the vehicle was stationary. The
officers were within five to ten feet of the car, with their flashlights illuminating the
occupants’ faces, and Officer Garcia gave a verbal command to the driver of the
vehicle to stop. After Officer Garcia’s command to stop, Defendant began backing
out of the parking space. After Officer Garcia’s second command to stop, Defendant
proceeded to drive out of the parking lot toward the street. One of the officers was
standing in the path of the car as it began accelerating, and the officer ordered
Defendant to stop. Defendant continued to accelerate, and the officer was forced to

3
move out of the way to avoid being hit. 	As the car passed, the officer struck the
windshield of the car with his baton, causing the windshield to break.
{5} 	One of the officers followed Defendant as she exited the parking lot, engaged
his lights and siren and stopped Defendant about a quarter of a mile from the Bar.
Two other officers, Officer Bonnell and Officer Garcia, arrived at the scene and began
a DWI and aggravated assault investigation. Officer Garcia asked Defendant if she
was the driver of the vehicle and if she had consumed any alcohol. 	Defendant
admitted to both. 	Officer Bonnell then administered at least two of the three
standardized field sobriety tests (FSTs)—the walk-and-turn test and the one-leg-stand
test. Officer Bonnell testified that he had to repeat the instructions for the walk-and-
turn test several times before Defendant understood. According to Officer Bonnell,
Defendant failed the walk-and-turn test by swaying throughout the test and executing
an improper turn. Officer Bonnell also opined that Defendant failed the one-leg-stand
test by swaying throughout the test, raising her hands more than six inches off her
sides, and putting her foot down at least one time. Officer Bonnell further opined that
Defendant was too impaired to drive safely. Defendant was placed under arrest and
transported to the police station where Officer Garcia administered a breath-alcohol
test (BAT). Defendant’s BAT results showed a .12 blood-alcohol content (BAC).
{6} 	Defendant was charged with driving under the influence of intoxicating liquor

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or drugs, contrary to Section 66-8-102, and with aggravated assault on a peace officer
with a deadly weapon, contrary to NMSA 1978, Section 30-22-22(A)(1) (1971). At
trial, Defendant argued that the State had not demonstrated that she was impaired.
Defendant further asserted that, if she was impaired, she did not intend to drive while
impaired, but did so only because she feared immediate great bodily harm to herself
and her companions. The jury convicted Defendant of DWI, but acquitted Defendant
on the aggravated assault charge. Defendant appeals her DWI conviction.
DISCUSSION
{7} 	Defendant raises three issues on appeal: (1) whether the district court erred in
admitting the BAT results, (2) whether the prosecutor improperly commented on
Defendant’s duress defense during closing arguments, and (3) whether the district
court erred by allowing officers who had destroyed their handwritten notes to testify.
We address the first two issues only. 	Because we reverse and remand for other
reasons, we see no need to address the third issue.
I. 	Admissibility of BAT Results
{8} 	Defendant contends that the district court erred by permitting the State to
introduce Defendant’s BAT results where the State failed to lay a proper foundation.
Specifically, Defendant contends that the State failed to present evidence of the breath
test machine’s certification. The State argues that Defendant failed to preserve the

5
specific argument she now advances on appeal regarding the machine’s certification
and the reliability of Defendant’s BAT results. Alternatively, the State contends that
it did establish the reliability of the BAT results, and any evidentiary error resulting
from the admission of the BAT results was harmless.
A. 	Defendant’s Argument That the State Failed to Lay a Proper Foundation
Due to the Lack of Evidence of Certification Was Properly Preserved
{9} 	In order to preserve an issue for appeal, a defendant must make a timely
objection that specifically apprises the district court of the nature of the claimed error
and invokes an intelligent ruling thereon. State v. Varela, 1999-NMSC-045, ¶ 25, 128
N.M. 454, 993 P.2d 1280. In the present case, Defendant challenged the admissibility
of the BAT results for lack of foundation. Defendant objected when the State sought
to elicit testimony from a witness regarding the results of the BAT. 	In a bench
conference following Defendant’s objection, defense counsel specifically stated to the
district court that “there is absolutely no testimony as to the reliability or the accuracy
of the certification of the [breath test machine].” The district court allowed the State
the opportunity to lay a foundation for the BAT results, and Defendant objected two
more times on the same grounds prior to the admission of the BAT results into
evidence. After the district court overruled Defendant’s multiple objections, defense
counsel elicited testimony regarding the machine’s certification on cross-examination,
until the district court informed defense counsel that she was not permitted to pursue

6
that line of questioning.
{10} 	We conclude that Defendant preserved her argument for the purpose of appeal.
Defendant alerted the district court as to the specific basis for her objection, the State
was provided an opportunity to satisfy the foundational requirements for admission
of the BAT results, and Defendant invoked multiple rulings from the district court on
this ground. See Kilgore v. Fuji Heavy Indus. Ltd., 2009-NMCA-078, ¶ 50, 146 N.M.
698, 213 P.3d 1127 (stating that the primary purposes for the preservation rule are “(1)
to specifically alert the district court to a claim of error so that any mistake can be
corrected at that time, (2) to allow the opposing party a fair opportunity to respond to
the claim of error and to show why the district court should rule against that claim,
and (3) to create a record sufficient to allow this Court to make an informed decision
regarding the contested issue”), cert. granted, 2009-NMCERT-007, 147 N.M. 363,
223 P.3d 360. We therefore turn to the merits of Defendant’s claim.
B. 	The District Court Erred in Admitting the BAT Results Without the
Proper Foundation
{11} 	Defendant contends that the district court abused its discretion by admitting
Defendant’s BAT results without a proper foundation, since there was no testimony
as to the breath test machine’s certification. We review the district court’s admission
or exclusion of evidence for abuse of discretion. State v. Sarracino, 1998-NMSC-022,
¶ 20, 125 N.M. 511, 964 P.2d 72. 	The district court abuses its discretion when it

7
admits evidence for which the necessary foundation has not been laid. 	State v.
Gardner, 1998-NMCA-160, ¶ 5, 126 N.M. 125, 967 P.2d 465. Under Rule 11-104(A)
NMRA, the district court need only be satisfied that the foundational requirements for
admission have been established by a preponderance of the evidence. 	See State v.
Martinez, 2007-NMSC-025, ¶¶ 19, 23, 141 N.M. 713, 160 P.3d 894.
{12} 	Compliance with accuracy-ensuring regulations of the Scientific Laboratory
Division of the Department of Health (SLD) is a condition precedent to admission of
BAT results. See id. ¶¶ 10-12; Gardner, 1998-NMCA-160, ¶ 11. Certification is an
accuracy-ensuring regulation. 	See Martinez, 2007-NMSC-025, ¶¶ 11-12. 	Thus,
before BAT results may be admitted, “the [prosecution] must . . . make a threshold
showing that SLD certification was current at the time the test was taken.” Id. ¶ 12;
see State v. Onsurez, 2002-NMCA-082, ¶ 13, 132 N.M. 485, 51 P.3d 528 (“[I]n cases
where the defendant properly preserves the objection, the [prosecution] must show
that the machine used for administering a breath test has been certified by SLD.”).
“Moreover, as noted in Onsurez, because calibration is but a part of certification, the
[prosecution] cannot substitute proof of calibration for proof of certification.”
Martinez, 2007-NMSC-025, ¶ 12.
{13} 	In Martinez, our Supreme Court considered what evidence of certification the
prosecution is required to present to establish a foundation for BAT results. Id. ¶ 10.

8
The Court held that the prosecution could satisfy the foundational requirement of
demonstrating that the machine was certified through the testimony of the officer who
performed the breath test that confirms the officer saw a certification “sticker” on the
machine and that the certification was current. 	Id. ¶¶ 3, 23. 	In State v. Granillo-
Macias, 2008-NMCA-021, ¶ 20, 143 N.M. 455, 176 P.3d 1187 (filed 2007), this Court
relied on Martinez to hold that where an “officer testified that, with respect to the
breath machine she operated, she saw and checked the sticker on the machine,” the
district court could reasonably conclude that the officer testified to a current annual
SLD certification, therefore satisfying the foundational requirement for admission of
the BAT results.
{14} 	In the present case, the State called the officer who performed the breath test
as a witness. 	The State elicited testimony from the officer that he was certified to
operate the machine, that a calibration check was performed immediately prior to
administering the test to Defendant, and that he believed the machine to be
functioning correctly when Defendant performed her breath test. The State did not,
however, present any testimony regarding whether the officer observed evidence of
SLD certification or whether that certification was current. 	Consequently, we
conclude that the State failed to satisfy the foundational requirement of demonstrating
that the machine was certified.

9
{15} 	To the extent the State contends that, based on a preponderance of the evidence,
the district court could have properly concluded that the State had laid the requisite
foundation for admission of the BAT results, we disagree. 	The State’s argument
disregards our cases requiring that certification of the machine be established by a
preponderance of the evidence. See, e.g., Granillo-Macias, 2008-NMCA-021, ¶ 20
(“It is clear that the [prosecution] must make a threshold showing that the breath
machine was SLD certified and that the certification was current at the time the test
was taken.”). To the extent the State would have this Court conclude that because
arguably other evidence of the possible reliability of the evidence was presented the
district court did not err in admitting the BAT results over Defendant’s objection, we
decline to do so. Our cases are clear that proof of certification is required and that
proof of compliance with other parts of the regulations will not satisfy the certification
requirement. See, e.g., Martinez, 2007-NMSC-025, ¶ 12. We therefore conclude that
the district court erred in admitting the BAT results.
C. 	The Admission of the BAT Results Was Not Harmless Error
{16} 	Having concluded that the BAT results were erroneously admitted, we next
determine whether the admission was harmless. See State v. Barr, 2009-NMSC-024,
¶ 47, 146 N.M. 301, 210 P.3d 198 (“Evidence admitted in violation of our rules is
grounds for a new trial where the error was not harmless.”). 	In making this

10
determination, we apply a non-constitutional error standard. See id. ¶ 53 (stating that
non-constitutional error review applies “where a defendant has established a violation
of statutory law or court rules”). “[N]on-constitutional error is reversible only if the
reviewing court is able to say, in the context of the specific evidence presented at trial,
that it is reasonably probable that the jury’s verdict would have been different but for
the error.” 	Id. ¶ 54; see id. ¶ 57 (“The inquiry . . . is not whether, in a trial that
occurred without the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was surely unattributable to
the error.” (omission in original) (internal quotation marks and citation omitted)).
{17} 	To determine whether an error was harmless, we consider whether there is “(1)
substantial evidence to support the conviction without reference to the improperly
admitted evidence[,] (2) such a disproportionate volume of permissible evidence that,
in comparison, the amount of improper evidence will appear minuscule[,] and (3) no
substantial conflicting evidence to discredit the [prosecution’s] testimony.” Id. ¶ 56
(footnote omitted). 	“No one factor is determinative; rather, they are considered in
conjunction with one another. All three factors . . . provide . . . a reliable basis for
determining whether an error is harmless.” State v. Marquez, 2009-NMSC-055, ¶ 21,
147 N.M. 386, 223 P.3d 931 (omissions in original) (internal quotation marks and
citation omitted).

11
{18} 	Our Supreme Court recently conducted a harmless error analysis involving the
improper admission of scientific evidence in a DWI case. 	See id. ¶¶ 1, 13, 18. In
Marquez, the defendant was convicted of DWI contrary to Section 66-8-102(A), or
the “impaired to the slightest degree” portion of the DWI statute. Marquez, 2009-
NMSC-055, ¶ 1. Percipient evidence was presented at trial that the officers observed
the defendant leaving a bar; that the defendant was staggering and somewhat off-
balance; that he almost collided with another vehicle in the parking lot and reversed
into oncoming traffic on a dangerous street; that, once stopped, the defendant
exhibited bloodshot, watery eyes and slurred speech, smelled of alcohol and admitted
to drinking; that the defendant fumbled while searching for his documentation, had
difficulty exiting his vehicle, failed to follow instructions, and exhibited a number of
clues on each of the FSTs performed. Id. ¶¶ 2-6. At trial, one of the officers testified
that, given the defendant’s performance on the FSTs, there was a ninety-percent
probability that the defendant was at or above the legal limit at the time of driving.
See id. ¶ 8. The Court held that the prosecution had failed to lay a proper foundation
for this expert testimony provided by the officer and that the testimony was
improperly admitted. 	See id. ¶ 18. 	In analyzing whether the admission of the
testimony requiring expertise was harmless error, the Court noted that “[i]n a DWI
trial, the improper admission of scientific evidence indicating that [the d]efendant was

12
legally intoxicated at the time of driving will almost certainly . . . tip the balance in
favor of the State.” 	Id. ¶ 23 (omission in original) (internal quotation marks and
citation omitted)). 	The Court concluded that, even though there was sufficient
evidence to support the defendant’s conviction without reference to the undisputably
inadmissible testimony, the improper admission of blood-alcohol evidence, along with
the existence of a credibility issue, created a reasonable probability that the improper
testimony impacted the jury’s verdict. 	See id. ¶¶ 23-27. 	The Court therefore
concluded that the error was not harmless. Id. ¶ 27.
{19} 	In the present case, there was sufficient evidence to support Defendant’s
conviction for DWI without reference to the improperly admitted evidence. See State
v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (“In reviewing
the sufficiency of the evidence, we must view the evidence in the light most favorable
to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in
the evidence in favor of the verdict.”). The State presented evidence that Defendant
smelled of alcohol, admitted to drinking, and failed the FSTs; that Defendant almost
struck an officer with her car as she drove out of the Bar’s parking lot; and that she
was hysterical during the roadside encounter. See State v. Soto, 2007-NMCA-077, ¶¶
32-34, 142 N.M. 32, 162 P.3d 187 (holding that there was sufficient evidence of DWI
under the impaired-to-the-slightest-degree standard even though the officers observed

13
no irregular driving, the defendant’s behavior was not irregular, he was cooperative,
and no FSTs were conducted, given that the defendant “had red, bloodshot, and
watery eyes, as well as slurred speech and a very strong odor of alcohol on his
breath,” the defendant admitted drinking, the officers observed several empty cans of
beer where the defendant had been, and the officers testified that the defendant was
intoxicated). Here, Defendant took the stand and provided testimony that contradicted
testimony provided by the officers and that supported her duress defense. Defendant
testified that she had been struck in the side of the mouth with what was possibly a
bottle while she was in the Bar, that she had taken refuge in her car, that she did not
see or hear any officers around her car or standing in front of her car, and that she was
upset and in a lot of pain during the roadside encounter.
{20 } 	Given our Supreme Court’s ruling in Marquez, we conclude that based on the
evidence presented by the State, the conflicting testimony offered by Defendant, and
the nature of the evidence that was improperly admitted, the error committed by
admission of a specific BAC score in this case was not harmless. Although we noted
earlier in this opinion that even if we disregarded the BAT results, there was still
sufficient evidence to support Defendant’s conviction, the evidence in support of
conviction is not so disproportionate that the improper evidence appears minuscule
as a result. See State v. Macias, 2009-NMSC-028, ¶ 38, 146 N.M. 378, 210 P.3d 804

1 We recognize that the State’s argument is based on this Court’s opinion in
State v. Marquez, 2008-NMCA-133, 145 N.M. 31, 193 P.3d 578, rev’d by Marquez,
2009-NMSC-055. See id. ¶ 25 (holding that the officer’s testimony correlating FST
results and BAC “could not have contributed to [the d]efendant’s conviction because
it was not relevant to any fact the jury was asked to decide”). We note that the State’s
answer brief was filed before our Supreme Court’s opinion rejecting this Court’s
harmless error analysis in Marquez was issued.
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(“[I]n some circumstances where, in our judgment, the evidence of a defendant’s guilt
is sufficient even in the absence of the trial court’s error, we may still be obliged to
reverse the conviction if the jury’s verdict appears to have been tainted by error[.]”).
Moreover, the fact that the improper evidence was the only scientific evidence
presented lends further support to our conclusion that the error presented in this case
was not harmless. See Gardner, 1998-NMCA-160, ¶ 21 (“[W]hen the only scientific
evidence presented at [a DWI] trial was admitted in error, the court cannot say that the
effect is harmless.”).
{21} 	To the extent the State argues that Defendant’s BAT results could not have
contributed to her conviction because it was not relevant to any fact the jury was asked
to decide, our Supreme Court rejected a similar argument in Marquez.1 In Marquez,
our Supreme Court held that, although “a defendant’s BAC is not an essential element
of the crime of DWI in violation of Section 66-8-102(A)[,] . . . it is common
knowledge that an individual with a BAC at or above the legal limit is highly likely
to be impaired by alcohol, at least to the slightest degree.” 2009-NMSC-055, ¶ 24.

15
Thus, the Court concluded that “[g]iven the explicit connection between BAC and
physical or mental impairment,” improperly admitted scientific testimony referring
to a defendant’s BAC created a reasonable probability that the jury was distracted
“from its function of weighing the proper evidence of guilt [and] encourag[ed] a
departure from the legitimate elements of proof.” Id. (alterations in original) (internal
quotation marks and citation omitted). We conclude the same is true in the present
case. 	Furthermore, because we have concluded that sufficient evidence exists, we
reverse Defendant’s conviction and remand for a new trial. 	See State v. Post, 109
N.M. 177, 181, 783 P.2d 487, 491 (Ct. App. 1989) (“If all of the evidence, including
the wrongfully admitted evidence, is sufficient, then retrial following appeal is not
barred.”).
D. 	Defendant Was Not Required to Challenge the Admissibility of the BAT
Results in a Pretrial Motion
{22} 	As indicated earlier in this opinion, Defendant challenged the admissibility of
the BAT results for lack of foundation, including lack of evidence of SLD
certification. 	The court permitted the State to attempt to lay a foundation, and
Defendant continued her objections. 	When defense counsel attempted to cross-
examine the State’s witness as to certification, the court did not permit the
questioning. 	The court indicated that it had informed an attorney in the public
defender’s office that the court wanted “to deal with it pretrial, so we don’t get an

16
ambush of the State” as to preparedness “to defend what the key operator is.”
{23} 	The State does not point out where in the record it complained at trial that it was
ambushed or that it would have been able to prove SLD certification had it been
forewarned of the need to do so. Nor does the State point out where it objected to
defense counsel questioning the witness about certification on the ground that
Defendant waived the right to object to the evidence because she did not move before
trial to suppress based on lack of SLD certification.
{24} 	We discern no definitive ruling by the district court that Defendant was barred
from objecting to evidence at trial because defense counsel violated a particular
procedural rule or express order of the court related to this case. Further, on appeal
the State does not argue that Defendant waived or was otherwise barred pursuant to
any particular procedural rule or express court order from objecting at trial.
{25} 	Rule 5-601(C)(2) NMRA requires that defenses and objections based on the
initiation of the prosecution or on defects in the complaint, indictment, or information
that are not jurisdictional be raised pretrial. 	This rule, however, does not include
objections to the admission of evidence based on lack of foundation. The State has
the burden to establish the necessary foundation for BAT results and, absent a
definitive rule or appropriate pretrial court order, we will not “require the defense to
file a pretrial motion simply to advise the prosecution that it may have a defect in its

17
proof or some problem in establishing the appropriate evidentiary foundation.” State
v. Cook, 9 S.W.3d 98, 99-100, 102 (Tenn. 1999) (holding that “because the burden of
establishing a foundation for the admissibility of a breath-alcohol test lies with the
prosecution, a defendant may challenge its admissibility either before or during the
trial”). Accordingly, and based on the silence of the State in the district court on this
issue, we hold that Defendant was not required to raise objections to the admissibility
of BAT results for lack of foundation prior to trial.
II. 	Prosecutorial Misconduct
{26} 	Defendant contends that she was deprived of a fair and impartial trial when the
prosecutor misstated the law in reference to Defendant’s duress defense in the State’s
rebuttal closing argument. The prosecutor told the jury, “To put forward the defense
of duress, as counsel has, [Defendant] admits to you that she was DWI.” Because of
the likelihood that Defendant will assert the same defense on retrial, which may invite
a similar remark, we address this issue. Our analysis, however, is limited to whether
the prosecutor misstated the law. See State v. Taylor, 104 N.M. 88, 96, 717 P.2d 64,
72 (Ct. App. 1986) (“Counsel may not misstate the law. The judge alone instructs the
jury on the law, and where counsel attempts to instruct, he invades the province of the
court.” (citation omitted)). Because we are reversing and remanding for a new trial
based on the admission of the BAT results, we do not determine whether the

18
prosecutor’s misstatement rises to the level of reversible error.
{27} 	In analyzing whether the prosecutor misstated the law, we look to our cases
involving duress and other justification defenses. In New Mexico, a duress defense
typically consists of three elements: 	(1) the defendant committed the crime under
threat, (2) the defendant feared immediate great bodily harm to herself or others if she
failed to commit the crime, and (3) a reasonable person in the defendant’s position
would have acted the same way under the circumstances. See State v. Duncan, 111
N.M. 354, 355, 805 P.2d 621, 622 (1991); see also UJI 14-5130 NMRA. In State v.
Rios, 1999-NMCA-069, ¶ 1, 127 N.M. 334, 980 P.2d 1068, this Court recognized
duress as a valid defense to DWI. 	However, New Mexico law establishes a more
narrow articulation of the defense in the strict liability context, requiring proof that:
“(1) the defendant acted under unlawful and imminent threat of death or serious
bodily injury, (2) he did not find himself in a position that compelled him to violate
the law due to his own recklessness, (3) he had no reasonable legal alternative, and (4)
his illegal conduct was directly caused by the threat of harm.” Id. ¶ 25.
{28} 	The prosecutor’s statement in the present case raises the issue of whether a
defendant asserting the defense of duress must admit to the criminal conduct alleged.
The defense of duress “assumes that the defendant has voluntarily performed the
criminal act.” Id. ¶ 12 (internal quotation marks and citation omitted). However, we

19
conclude that this does not preclude a defendant from asserting inconsistent defenses
or still holding the prosecution to its burden of persuasion. Cf. Martinez v. State, 91
N.M. 747, 749, 580 P.2d 968, 970 (1978) (concluding “that the rule in favor of
inconsistent defenses must extend to the defense of entrapment”).
{29} 	Although New Mexico courts have not dealt specifically with the issue of what
admissions, if any, are required in order to assert the defense of duress, our courts
have addressed this issue in the context of entrapment. 	“Those cases require [a]
defendant to admit some elements of the offense before the defense of entrapment
may be asserted.” 	Id. 	Admission to all of the elements of the criminal offense
charged, however, is not required. As our Supreme Court explained in Martinez:
[T]he federal Constitution requires proof beyond a reasonable doubt on
each element of the crime. 	While entrapment is not a defense of
constitutional dimension, requiring the defendant to forego proof beyond
[a] reasonable doubt to assert entrapment relieves the [prosecution] of its
constitutional burden and is tantamount to requiring him to plead guilty.
Where the defenses are not mutually repugnant, this is asking too much.
Id. at 750, 580 P.2d at 971 (citations omitted). We see no reason to treat a defendant’s
right to assert the defense of duress any differently.
{30} 	We note that, in Martinez, the entrapment defense was raised because the
defendant alleged that he only relented and secured a substance, which he did not
believe to be heroin, after the undercover agent kept pressing the defendant for heroin
and pretended to be very sick by feigning withdrawal symptoms. Id. at 748, 580 P.2d

20
at 969. 	Our Supreme Court determined that a defendant had made sufficient
admissions to entitle him to an entrapment instruction where the defendant, who was
charged with trafficking heroin, admitted that he had an encounter with an undercover
agent on the date alleged and that he did transfer a substance to that agent. See id. at
749-50, 580 P.2d at 970-71. Our Supreme Court determined that the defendant was
still permitted to deny that he knew the substance that he transferred was heroin.
See id.
{31} 	Similarly, in State v. Buendia, 121 N.M. 408, 912 P.2d 284 (Ct. App. 1996),
this Court concluded that a defendant had made sufficient admissions for an
entrapment instruction where the defendant, who was charged with unlawful dealing
in federal coupons, admitted giving money to an undercover agent on two occasions
but denied receiving food stamps in return. See id. at 409-10, 412, 912 P.2d at 285-
86, 288. In Buendia, the entrapment defense was raised because the defendant alleged
that he only gave money to the undercover agent because the agent told the defendant
he needed it to visit his sick child. See id. at 410, 412, 912 P.2d at 286, 288. Thus,
provided a defendant does not deny his presence entirely, but only disputes the
particulars of the crime, the entrapment defense is available. See id. at 412, 912 P.2d
at 288; State v. Wright, 84 N.M. 3, 5, 498 P.2d 695, 697 (Ct. App. 1972) (“[W]hen the
defense of alibi [is] offered during trial, the defense of entrapment is not available to

21
a defendant who denies committing the offense, because to invoke entrapment
necessarily assumes the commission of at least some of the elements of the offense.”);
see also State v. Garcia, 79 N.M. 367, 369-70, 443 P.2d 860, 862-63 (1968) (same).
{32} 	In the case at bar, Defendant admitted to having consumed alcohol and to being
the driver of the vehicle. 	We conclude that, based on Martinez and Buendia, no
further admissions by Defendant were necessary. Accordingly, we conclude that the
prosecutor misstated the law in the State’s rebuttal to closing arguments and that no
requirement exists that a defendant admit to impairment in order to assert duress as
a defense to a DWI charge.
CONCLUSION
{33} 	We reverse Defendant’s DWI conviction and remand for a new trial.
{34} 	IT IS SO ORDERED.
_________________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

CYNTHIA A. FRY, Chief Judge

RODERICK T. KENNEDY, J udge

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