STATE of New Mexico, Plaintiff-Appellant, v. Charles GOMEZ, Defendant-Appellee, 140 N.M. 586

OPINION ROBINSON, Judge. {1} The State contends that, even though the district court directed a verdict and acquitted Defendant of the charge of DWI, it is entitled to appeal the district court’s ruling excluding a document relating to Defendant’s blood alcohol test results. {2} We must determine whether the State had a right to appeal the exclusion of the blood alcohol report pursuant to NMSA 1978, § 39-3-3(B)(2) (1972), and whether double jeopardy precludes the State from retrying Defendant after the jury had been impaneled.

To ensure a fully informed decision, we requested supplemental briefing by the parties to address whether Defendant is afforded the protection of the double jeopardy clause of the United States Constitution and the New Mexico Constitution. We conclude that, under the facts presented, the State cannot appeal the exclusion of an inadmissible blood alcohol report under

Section 39-3-3(B)(2), and double jeopardy precludes the State from trying Defendant again because the State refused to present any evidence to satisfy the elements of the charged offense after the jury was impaneled. I. BACKGROUND {3} The district court’s order, directing a verdict and judgment of acquittal, stated: THIS MATTER came before the [district] court for a[j]ury [t]rial on December 3, 2003 and the State and Defense announced they were ready to proceed and a jury was impaneled. Prior to impaneling the jury, ... [Defendant made objection about the late disclosure of a witness on the day prior to trial.

The [S]tate had amended its witness disclosure to remove the name of the nurse who did the blood draw and substituted therefor a human resources employee from the hospital. After impaneling the jury, the [district] court took up ... [Defendant's objection. The [district] court did so to resolve the issue of foundation for admission of the blood test results.

It appeared to the [district] court necessary to do so prior to opening statements because it would be highly prejudicial to ... [Defendant if the [S]tate were allowed to make reference to the results in opening statement and subsequently it was determined there was no foundation for admission of the results. The [district] court heard testimony and arguments of counsel outside the presence of the jury and ruled that the evidence was insufficient to establish a foundation for admission of the results of a blood alcohol test.

The [S]tate took exception to the [district] court’s ruling and upon the request of the [S]tate, a recess was taken to allow the [S]tate to decide how it wished to proceed in light of the [district] court’s evidentiary ruling on the inadmissibility of the blood alcohol evidence. After this recess, the [S]tate announced its intent to proceed with an immediate appeal pursuant to NMSA

Section 39-3-3(B)(2). The [district] court ruled that the evidentiaryruling complained of was not immediately appealable under that statute. The [S]tate was granted a second recess to again determine how it wished to proceed in light of the [district] court’s rulings. After the second recess[,] the [S]tate announced its intent to proceed with an immediate appeal and said that it was ready to proceed “on appeal.” The [S]tate did not offer any further testimony.

IT IS THEREFORE ORDERED that, after a jury having been impaneled and the [S]tate not presenting any evidence to support a charge of [DWI], the [district] court directs a verdict of not guilty be entered in this matter. IT IS THEREFORE ADJUDGED AND DECREED that ... [Defendant is acquitted of the charge of [DWI] and is discharged from any further obligation to the [district] court. Additional facts relating to these issues are set forth in our analysis. II.

DISCUSSION Standard of Review {4} The State contends on appeal that it has a constitutional and statutory right to appeal the district court’s ruling excluding Defendant’s blood alcohol report. Specifically, the State argues that, “[b]y excluding a crucial and significant exhibit, the [district] court denied the State its one, fair opportunity to marshal its resources to obtain a conviction on its complaint.” This Court reviews de novo whether the district court’s decision to exclude evidence was based upon a misapprehension of the law. See State v.

Romero, 2000-NMCA-029, ¶ 6, 128 N.M. 806, 999 P.2d 1038. {5} We must address whether the State has a right to appeal under the facts presented and whether this Court has jurisdiction. Under

Section 39 — 3—3(B)(2), the State is permitted to appeal “a decision or order of a district court suppressing or excluding evidence ... if the district attorney certifies to the district court that the appeal is not taken for the purpose of delay and that the evidence is a substantial proof of fact material in the proceeding.” Id. In Romero, the State argued that it had statutory authority under

Section 39 — 3—3(B)(2) to appeal the exclusion of evidence that was a critical part of its prosecution. 2000-NMCA-029, 128 N.M. 806, 999 P.2d 1038. This Court held that “[t]he excluded evidence went to the very heart of the proof required to establish an essential element of the State’s case.” Id. ¶ 9. It reasoned that, since “[t]he [district] court’s ruling made it impossible for the State to prove an element of its case[,][w]e have jurisdiction to entertain this appeal under

Section 39-3-3(B)(2).” Id. {6} In this case, Defendant was charged with DWI, contrary to NMSA 1978,

Section 66-8-102 (1999), and for a conviction the State must prove beyond a reasonable doubt, in relevant part, that (1) “[Defendant operated a motor vehicle;” and (2) “[a]t that time, ... [Defendant had an alcohol concentration of eight one-hundredths (.08) grams or more in [one hundred milliliters of blood].” UJI 14-4503 NMRA (1997). But the State had another choice of proof that is easier to accomplish than the former.

For instance, the State can prove beyond a reasonable doubt that, at the time Defendant operated the motor vehicle, he “was under the influence of intoxicating liquor, that is, as a result of drinking liquor ... [Defendant was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the person and the public.” UJI 14-4501 NMRA (1997). {7} Here, the State, pursuant to

Section 39-3-3(B)(2), certified in its notice of appeal that the appeal was not taken for the purpose of delay, and the evidence is a substantial proof of a fact in the proceedings. However, without elaborating, the district court ruled that the evidentiary ruling complained of was not appealable under

Section 39-3-3(B)(2). Contrary to Romero, exclusion of the inadmissible blood alcohol report here does not go to the heart of the charged offense and does not eliminate the “one, fair opportunity ... to obtain a conviction” as the State contends. For instance, when Officer Tutor discovered Defendant, he appeared to be unconscious, or asleep, in the front seat of his truck with the door wide open at 10:35 a.m.

After waking Defendant, Officer Tutor asked Defendant if he had been drinking and Defendant replied that he had “a little.” Officer Tutor detected a strong odor of alcohol on or about Defendant, and noticed that he had difficulty standing and that his speech was slurred. Lastly, Defendant failed numerous field sobriety tests and was then placed under arrest.

The State refused to present any of the aforementioned evidence to prove the essential element that Defendant was less able to the slightest degree, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the person and the public. See UJI14-4501. The district court’s ruling to exclude the blood alcohol report did not make it impossible for the State to prove the elements of its case. Therefore, we agree with the district court that the exclusion of an inadmissible blood alcohol report is not appealable under

Section 39-3-3(B)(2) and that the blood alcohol report was not a substantial proof of a fact that eliminated the State’s only opportunity to obtain a conviction. Introduction of the blood alcohol report would have provided evidence of aggravated DWI, but is unnecessary for a charge of simple DWI, and that is what Defendant was charged with.

Although the blood alcohol report may have been a substantial proof of material fact to the charged offense of aggravated DWI, the exclusion of it did not prevent the State from proceeding because it had ample evidence to meet its burden to prove Defendant’s DWI charge, and it was the State that refused to present that evidence. Thus, unlike Romero, the excluded evidence here did not go to the heart of the proof required to establish DWI. Therefore, this Court will not disturb the district court’s exclusion of the blood alcohol report.

Consequently, jurisdiction remained in the district court and nothing prevented the district court from proceeding with the ease, except the State’s adamant refusal to continue with the trial and prosecute its case. Double Jeopardy {8} The State recognized that the question of double jeopardy may be raised at any time. NMSA 1978, § 30-1-10 (1963). The State is forbidden to appeal when jeopardy would bar a retrial. § 39-3-3(C). However, the State asks this Court to expand the holding in State v.

Arevalo, 2002-NMCA-062, ¶ 7, 132 N.M. 306, 47 P.3d 866, where this Court treated a directed verdict before any evidence had been heard by an unsworn jury as a pretrial dismissal to permit appeals such as this. The State also suggests that the district court’s ruling was erroneous and that it should be permitted to challenge such decisions on appeal where neither the court, nor the jury, has heard any evidence. {9} This Court reviews double jeopardy claims de novo. State v. Fielder, 2005-NMCA-108, ¶ 10, 138 N.M. 244, 118 P.3d 752.

The double jeopardy clause of the United States Constitution and the New Mexico Constitution guarantees that no person shall be put in jeopardy twice for the same offense. See U.S. Const. Amend. V; N.M. Const, art. II, § 15. “Jeopardy begins or attaches when the trier of fact is empowered to decide guilt or innocence and jeopardy terminates upon an acquittal.... ” State v. Vaughn, 2005-NMCA-076, ¶ 8, 137 N.M. 674, 114 P.3d 354; State v.

Angel, 2002-NMSC-025, ¶ 8, 132 N.M. 501, 51 P.3d 1155 (stating that, in a criminal trial, jeopardy attaches at the moment the trial of fact is empowered). {10} In this case, the jury was sworn and impaneled to determine Defendant’s innocence or guilt. At this time, the State notified the court that it had been unable to obtain service of process on Ginger Stubbs, a nurse, who would testify that Defendant’s blood was drawn in accordance with the Scientific Laboratory Division (SLD) regulations.

The State amended its witness list the previous day to include a human resources employee to verify Ginger Stubbs’ employment. Defendant objected to this witness being called and to the admission of the blood alcohol content report because the State did not have a witness who could testify that proper SLD procedures were followed for the blood draw. Since the jury was impaneled, the State proffered a substitute witness, Officer Jason Tutor, to establish whether or not the officer could testify that the blood was drawn pursuant to SLD regulations. This was not a pretrial motion and clearly the trial had commenced.

Therefore, jeopardy attached the moment the jury was impaneled. {11} The State then called Officer Tutor. He testified that he had no independent recollection of the blood draw, but stated that, if he signed the report, he must have witnessed the test. On cross-examination, Officer Tutor testified that he did not recall witnessing the blood draw and did not know if the nurse followed those procedures.

The court then excluded the blood test results for failing to lay the proper foundation and recessed the proceedings to allow the prosecution time to reassess its case. {12} After reconvening, the State announced it would appeal the court’s ruling. The district court denied the request. The State requested an additional recess, which the court granted. After reconvening again, the State noted its intention to file an interlocutory appeal. The district court then asked the State to present its evidence and proceed with its case, but the State refused.

The district court then entered a directed verdict of acquittal. {13} This Court has noted that “[t]he United States Supreme Court has said that it is ‘the most fundamental rule’ that a defendant cannot be re-tried after a verdict of acquittal, even if that verdict is egregiously erroneous.” Vaughn, 2005-NMCA-076, ¶ 9, 137 N.M. 674, 114 P.3d 354 (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977).) In his order, the district court expressly ruled that Defendant was acquitted of the charge of DWI.

Thus, based on this ruling, Defendant cannot be retried. {14} Moreover, “[t]he [United States] Supreme Court has also instructed that what constitutes an acquittal ‘is not to be controlled by the form of the judge’s action. Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged’ and the focus is on ‘substance as well as form.’ ” Id. (quoting Martin Linen Supply Co., 430 U.S. at 571-72, 97 S.Ct. 1349). As noted, Defendant was charged with DWI, contrary to

Section 66-8-102 (1999) and the State’s inability to lay the proper foundation for the admissibility of Defendant’s blood alcohol content report, pursuant to NMSA 1978, § 66-8-103 (1967), was a failure of proof under UJI 14-4503. {15} Furthermore, as mentioned earlier, the State had ample evidence to present for the charged offense of DWI, which the State refused to present. When the State refused to proceed with its case, it failed to prove the essential element that Defendant was less able to the slightest degree to handle a vehicle with safety to the person and the public. See UJI 14-4501.

Therefore, since the State failed to present any factual elements of the charged offense, the district court correctly issued a directed verdict and acquitted Defendant of DWI. “After an acquittal, any type of fact-finding proceeding going to elements of the charged offense violates the federal double jeopardy clause.” Vaughn, 2005-NMCA-076, ¶ 9, 137 N.M. 674, 114 P.3d 354; § 39-3-3(C) (“No appeal shall be taken by the [S]tate when the double jeopardy clause of the United States constitution or the constitution of the [S]tate of New Mexico prohibits further prosecution.”). {16} Moreover, since the district court’s ruling was based on the merits of the evidence, a retrial is precluded.

See Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (stating that a retrial will not be permissible “when a defendant’s conviction has been overturned due to failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble”); see also State v. Gardner, 1998-NMCA-160, 126 N.M. 125, 967 P.2d 465.

In Gardner, this Court discussed the interplay between the DWI statutes and the Implied Consent Act and administrative regulations, stating that “compliance with these regulations would be a condition precedent to admissibility.” Id. at ¶ 11. If the exclusion of evidence is a result of trial error from which the State could appeal, and after which if appeal were to be successful, Defendant could be retried. See County of Los Alamos v. Tapia, 109 N.M. 736, 790 P.2d 1017 (1990).

In Tapia, our Supreme Court confronted an issue similar to that presented in this case: Whether the State’s appeal is barred when jeopardy has attached, but the trial was aborted by a ruling of the district court before the jury determined the guilt or innocence of the defendant. In that case, the district court ordered a dismissal of the criminal charge when it ruled, during mid-trial, that the defendant’s arrest was unlawful and that all evidence in support of the charged must be suppressed. Id. at 737, 790 P.2d at 1018.

Our Supreme Court held that double jeopardy is not offended when a mid-trial dismissal results from “trial error,” as opposed to a factual determination, or lack thereof, of the guilt or innocence of the defendant. Id. at 738-41, 790 P.2d at 1019-22. {17} For blood sample collection, the regulations require that the “[b]lood samples be collected in the presence of the arresting officer or other responsible person who can authenticate the samples. Blood samples shall be collected by veni-puncture as authorized by the New Mexico Implied Consent Act, NMSA 1978, Sections 66-8-105 et. seq.” 7.33.2.12 NMAC.

Furthermore, “[t]he initial blood samples should be collected within two hours of arrest ... [that] [e]thyl alcohol shall not be used as a skin antiseptic in the course of collecting blood samples ... [and] the samples shall be dispensed or collected using an SLD-approved blood collection kit or directly into two or more sterile tubes containing sufficient sodium fluoride so that the final concentration shall contain not less than 1.0 percent sodium fluoride.” Id. Here, the blood drawer did not testify. Officer Tutor testified that he did not know what a “venipuncture” was, or if it was done.

He could not testify as to the antiseptic used, or whether the nurse followed SLD regulations correctly. The State presented evidence regarding Defendant’s blood draw, which the district court found insufficient to establish a foundation for admission of the results of a blood alcohol test. We conclude that the State failed to establish the foundational requirements as set out above and, as in Gardner, “substantial compliance” will not suffice, and we will not relax the regulation requirements. Id. ¶¶ 16-20. {18} As discussed above, this is not an appealable issue under

Section 39-3-3(B)(2), combined with the holding in Tapia, that since there is no trial error here, the State is precluded from retrying this case. Lastly, our case is distinguishable from Arevalo because here the jury was impaneled when the district court ruled that the State did not lay a proper foundation for the admission of the blood alcohol report while, in Arevalo, the district court’s dismissal was a pretrial ruling before a jury was impaneled. Therefore, we cannot expand our holding in Arevalo to permit appeals such as this. III.

CONCLUSION {19} This Court admonishes all involved in this case for not resolving the admissibility of the breath alcohol report pretrial. We note that Defendant raised the suppression of the report before the jury was impaneled and the trial began. Why wasn’t the suppression/exclusion of evidence issue resolved before the trial began? We would not be on this merry-go-round if the trial court had done so. {20} The exclusion of the blood alcohol report did not preclude the State’s only opportunity to obtain a conviction of DWI because it had ample evidence and a fair opportunity to offer its proofs.

Therefore, the State is precluded from appealing the exclusion of the inadmissible blood alcohol report under

Section 39-3-3(B)(2). Thus, this Court has no jurisdiction to address this issue. Also, when the State refused to present any evidence to satisfy the elements of the charged offense after the jury was impaneled, double jeopardy precludes the State from trying Defendant again. We, therefore, dismiss the appeal. {21} IT IS SO ORDERED. MICHAEL D. BUSTAMANTE, Chief Judge, specially concurring. CYNTHIA A. FRY, Judge, specially concurring.