May 28, 2009 – State of New Mexico v. Jenita Chavez, No. 28,948

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	May 28, 2009
NO. 28,948
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JENITA CHAVEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge
Gary K. King, Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
CASTILLO, Judge.
{1} 	Defendant appeals her convictions for DWI and child endangerment. 	We
issued a notice proposing to uphold the convictions. 	Defendant has filed a
memorandum in opposition, which we have duly considered. Although this case is
assigned to our summary calendar, we are issuing a formal opinion to clarify that
retrograde analysis is irrelevant based on the recent amendment to our DWI statute.
NMSA 1978, § 66-8-102(C) (2008). 	In this case, we do not believe additional
briefing is necessary because we are applying a legal principle to undisputed facts.
See State v. Hearne, 112 N.M. 208, 214, 813 P.2d 485, 491 (Ct. App. 1991) (pointing
out that when facts are undisputed and application of legal principles is clear, case is
appropriately decided on summary calendar). Because we remain unpersuaded, we
affirm.
{2} 	Defendant urges reversal based on each of the four issues raised in her
docketing statement and argued in her memorandum in opposition. We address each
in turn.
{3} 	First, Defendant challenges the exercise of one of the state’s peremptory strikes.
As we observed in the notice of proposed summary disposition, Defendant’s challenge
is nearly identical to the argument addressed in the case of 	State v. Begay,

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1998-NMSC-029, 125 N.M. 541, 964 P.2d 102. In Begay, both the defendant and the
challenged juror were Native Americans. 	Id. ¶ 13. 	The district court therefore
required a race-neutral explanation for the State’s peremptory challenge. Id. After
such an explanation was supplied, the challenge was upheld. Id. ¶ 15.
{4} 	In this case, as in Begay, the prosecutor provided a valid explanation, stating
that he did not want the challenged individual on the jury because his son had been
convicted of DWI. 	The district court accepted the prosecutor’s explanation and
allowed the individual to be stricken from the jury. 	Because the prosecutor’s
explanation was reasonable—“i.e., a non-discriminatory, race-neutral explanation for
peremptorily challenging that juror,” id. ¶ 14 (emphasis omitted), the peremptory
challenge was facially valid.
{5} 	“A peremptory challenge that is found to be valid on its face stands unless the
defendant comes forward with a refutation of the stated reason—e.g., by challenging
its factual basis—or proof of purposeful discrimination by the prosecutor.” 	Id.
(emphasis omitted). 	Defendant did not come forward with such a refutation.
Although Defendant theorizes that the juror could have been fair, and although
Defendant faults the prosecutor for failing to inquire further about the juror’s potential
impartiality, neither of these arguments supply a refutation of the prosecutor’s stated
reason for exercising the peremptory challenge. 	Insofar as Defendant failed to

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demonstrate the prosecutor’s explanation was without basis in fact or that the
prosecutor purposefully discriminated against the juror based on race, we uphold the
district court’s ruling. See id. ¶ 15.
{6} 	By her second issue, Defendant asserts that the district court erred in excluding
portions of the testimony of an expert witness. 	“In general, we review a [district]
court’s admission or exclusion of evidence for abuse of discretion.” 	State v.
Armendariz, 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526. 	“An abuse of
discretion arises when the evidentiary ruling is clearly contrary to logic and the facts
and circumstances of the case.” Id.
{7} 	It appears that the testimony at issue concerned absorption and elimination
rates. We gather that the district court excluded this testimony on grounds that the
recent amendment to the “per se” portion of our DWI statute has rendered such
evidence irrelevant. See generally § 66-8-102(C)(1) (“It is unlawful for . . . a person
to drive a vehicle in this state if the person has an alcohol concentration of eight one
hundredths or more in the person’s blood or breath within three hours of driving the
vehicle and the alcohol concentration results from alcohol consumed before or while
driving the vehicle.”).
{8} 	As we observed in the notice of proposed summary disposition, evidence of
absorption and elimination rates in DWI cases has historically been offered for the

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purpose of retrograde extrapolation analysis. 	See, e.g., State v. Day, 2008-NMSC-
007, ¶¶ 22-26, 143 N.M. 359, 176 P.3d 1091 (addressing expert testimony on
absorption and elimination, in terms of retrograde extrapolation), cert. granted, 2008-
NMCERT-010, 145 N.M. 524, 201 P.3d 855. 	Because the recent amendment to
Section 66-8-102(C) renders retrograde extrapolation irrelevant in cases such as this,
where test results are obtained within three hours, see Day, 2008-NMSC-007, ¶ 27,
the district court properly excluded the expert’s testimony to the extent that it was
offered for this purpose.
{9} 	We understand Defendant to contend that she offered the disputed evidence for
the purpose of undermining the accuracy of the test results as a measure of her BAC
at the time that the tests were administered. 	As we acknowledged in the notice of
proposed summary disposition, the accuracy of BAC test results should be regarded
as a permissible line of inquiry. See generally State v. Martinez, 2007-NMSC-025,
¶ 24, 141 N.M. 713, 160 P.3d 894 (observing that “once the [district] court determines
that the [s]tate has met the foundational requirements for the admission of a BAT card,
a defendant [still] may . . . challenge the reliability of the breath test”). However, the
district court appears to have been well aware of this principle, in light of which it
specifically ruled that Defendant would be permitted to present expert testimony
concerning the accuracy of the Intoxilyzer as a mechanism for obtaining breath-

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alcohol measurements. It appears that Defendant presented evidence of this nature
below.
{10} 	In her memorandum in opposition, Defendant contends that the district court
precluded her from eliciting testimony about “how the person giving the sample could
[a]ffect the accuracy of the reading.” However, Defendant fails to explain how the
excluded testimony would have addressed the accuracy of the readings in any sense
other than the classic—and now irrelevant—retrograde extrapolation. See Day, 2008-
NMSC-007, ¶ 27 (observing that the recent amendment to the statute eliminates the
need for retrograde extrapolation in cases in which test results are obtained within the
three-hour window). Because Defendant has failed to explain the relevance of the
excluded testimony, we conclude that she has not met her burden of demonstrating
error. See generally State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d
1211 (recognizing that there is a presumption of correctness in the rulings of the
[district] court, and the party claiming error bears the burden of showing such error);
cf. State v. Balderama, 2004-NMSC-008, ¶ 95, 135 N.M. 329, 88 P.3d 845 (Serna, J.,
concurring in part, dissenting in part) (observing that criminal defendants have no
constitutional right to present irrelevant evidence).
{11} 	By her third issue, Defendant contends that the jury was improperly instructed
on the offense of driving while intoxicated. 	As previously stated, Defendant was

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convicted pursuant to the per se DWI provision. The State was therefore required to
prove that Defendant had a breath or blood alcohol concentration of eight one
hundredths or more within three hours of driving a vehicle. 	See § 66-8-102(C)(1).
Our review of the record reveals that the instruction to the jury conformed with the
statutory definition of the offense.
{12} 	Defendant challenges the instruction on grounds that it does not track the
language of UJI 14-4503 NMRA in every detail. 	Although the position of the
reference to the three-hour time frame was moved within the second element, we fail
to see how this could be regarded as a material alteration. The only other conceivable
discrepancy 	involves 	the 	omission 	of 	the 	clause 	specifying 	that 	the 	alcohol
concentration resulted from the consumption of alcohol before or while driving the
vehicle. 	Insofar as this clause appears as bracketed material in the uniform jury
instruction and insofar as the timing of the consumption of the alcohol appears to have
been undisputed, we conclude that the bracketed material was permissibly excluded
from the instruction. See generally State v. Lopez, 1996-NMSC-036, ¶ 13, 122 N.M.
63, 920 P.2d 1017 (observing that a reviewing court will affirm where material
omitted from a jury instruction was “‘undisputed and indisputable,’ and no rational
jury could have concluded otherwise” (quoting State v. Orosco, 113 N.M. 780, 786,
833 P.2d 1146, 1152 (1992)). 	We therefore reject Defendant’s attack on the jury

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instruction.
{13} 	Finally, Defendant renews her challenge to the sufficiency of the evidence to
support her conviction for child abuse. 	“We view the evidence in the light most
favorable to the [s]tate, resolving all conflicts and indulging all inferences in favor of
the verdict.” State v. Castañeda, 2001-NMCA-052, ¶ 21, 130 N.M. 679, 30 P.3d 368.
{14} 	Defendant’s conviction was based upon her act of driving while intoxicated
with her six-year-old daughter in the car. Below, the State called the arresting officer
as a witness, who testified that Defendant smelled of alcohol and that her eyes were
bloodshot and watery. Additionally, Defendant admitted to drinking at least five beers
and “some tequila” prior to driving, she admitted that she “probably had too much”
alcohol to drive, and she acknowledged that her conduct was dangerous. We conclude
that this circumstantial evidence, in conjunction with the evidence that Defendant’s
daughter was in the car Defendant was driving, constitutes substantial evidence that
Defendant acted with reckless disregard for the safety of her daughter. See id. ¶ 22
(upholding a conviction for criminally negligent child abuse, based on similar
evidence).
{15} 	In her memorandum in opposition, we understand Defendant to contend that her
conviction should be reversed on grounds that the State failed to establish that her
conduct actually harmed the child or was likely to do so. We disagree. “A defendant

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may be found guilty of . . . child abuse even if the child was never actually in danger
or even likely to suffer harm.” Id. ¶ 17. As a result, we reject Defendant’s challenge
to the sufficiency of the evidence to support her conviction for child abuse.
CONCLUSION
{16} 	For the reasons stated above and in the notice of proposed summary disposition,
we affirm.
{17} 	IT IS SO ORDERED.
________________________________
CELIA FOY CASTILLO, Judge
WE CONCUR:
_________________________________
CYNTHIA A. FRY, Chief Judge
_________________________________
MICHAEL D. BUSTAMANTE, Judge