flexible test in New Mexico

2005With respect to the latter two prerequisites, we have rejected the overly restrictive test from Frye v. United States, 293 F. 1013 (D.C.Cir.1923) that had required general acceptance in the field in order for opinion testimony to be considered scientific knowledge that will assist the trier of fact in favor of a more flexible test that focuses on “the validity and the soundness of the seientific method used to generate the evidence.” Alberico, 116 N.M. at 167, 861 P.2d at 203.

2005With respect to the latter two prerequisites, we have rejected the overly restrictive test from Frye v. United States, 293 F. 1013 (D.C.Cir.1923) that had required general acceptance in the field in order for opinion testimony to be considered scientific knowledge that will assist the trier of fact in favor of a more flexible test that focuses on "the validity and the soundness of the scientific *541 method used to generate the evidence." Alberico, 116 N.M. at 167, 861 P.2d at 203.

2005With respect to the latter two prerequisites, we have rejected the overly restrictive test from Frye v. United States, 293 F. 1013 (D.C.Cir.1923) that had required general acceptance in the field in order for opinion testimony to be considered scientific knowledge that will assist the trier of fact in favor of a more flexible test that focuses on “the validity and the soundness of the seientific method used to generate the evidence.” Alberico, 116 N.M. at 167, 861 P.2d at 203.

2005With respect to the latter two prerequisites, we have rejected the overly restrictive test from Frye v. United States, 293 F. 1013 (D.C.Cir.1923) that had required general acceptance in the field in order for opinion testimony to be considered scientific knowledge that will assist the trier of fact in favor of a more flexible test that focuses on "the validity and the soundness of the scientific *541 method used to generate the evidence." Alberico, 116 N.M. at 167, 861 P.2d at 203.

1994Great injustice could result from a bright-line “rule of law which would rigidly and unreasonably bind an arrested person to his first words spoken, no matter how quickly and under what circumstances those words are withdrawn.” State v. Moore, 62 Haw. 301 , 614 P.2d 931, 935 (1980).

1994Great injustice could result from a bright-line “rule of law which would rigidly and unreasonably bind an arrested person to his first words spoken, no matter how quickly and under what circumstances those words are withdrawn.” State v. Moore, 62 Haw. 301 , 614 P.2d 931, 935 (1980).

2010See also State v. Tollardo, 2003-NMCA-122, ¶ 17 , 134 N.M. 430 , 77 P.3d 1023 (stating that Alberico adopted "a more flexible inquiry" in which the general acceptance of the theory or technique is considered but is not controlling).

2010See also State v. Tollardo, 2003-NMCA-122, ¶ 17 , 134 N.M. 430 , 77 P.3d 1023 (stating that Alberico adopted "a more flexible inquiry" in which the general acceptance of the theory or technique is considered but is not controlling).

1994There are two main lines of thought: those that prescribe an absolute rule allowing no change of mind under any circumstance, and those that offer a flexible rule, permitting a change of mind within specified limits. *1091 A. The Absolute Rule Those advocating an absolute rule frequently echo the words of State v. Corrado, 184 N.J.Super. 561 , 446 A.2d 1229, 1233 (1982): [A]nything substantially short of an unqualified, unequivocal assent to an officer's request that the arrested motorist take the test constitutes a refusal to do so. [(Citation omitted.)] The occasion is not one for debate, ma

1994There are two main lines of thought: those that prescribe an absolute rule allowing no change of mind under any circumstance, and those that offer a flexible rule, permitting a change of mind within specified limits. *1091 A. The Absolute Rule Those advocating an absolute rule frequently echo the words of State v. Corrado, 184 N.J.Super. 561 , 446 A.2d 1229, 1233 (1982): [A]nything substantially short of an unqualified, unequivocal assent to an officer's request that the arrested motorist take the test constitutes a refusal to do so. [(Citation omitted.)] The occasion is not one for debate, ma

1994Pruitt v. State Dept. of Public Safety, 825 P.2d 887, 894 (Alaska 1992) (quoting Lively, 804 P.2d at 70 ); Standish v. Department of Revenue, 235 Kan. 900 , 683 P.2d 1276, 1280 (1984) (stating that “administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it”).

1994Pruitt v. State Dept. of Public Safety, 825 P.2d 887, 894 (Alaska 1992) (quoting Lively, 804 P.2d at 70 ); Standish v. Department of Revenue, 235 Kan. 900 , 683 P.2d 1276, 1280 (1984) (stating that “administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it”).

1994Pruitt v. State Dept. of Public Safety, 825 P.2d 887, 894 (Alaska 1992) (quoting Lively, 804 P.2d at 70 ); Standish v. Department of Revenue, 235 Kan. 900 , 683 P.2d 1276, 1280 (1984) (stating that “administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it”).

1994Pruitt v. State Dept. of Public Safety, 825 P.2d 887, 894 (Alaska 1992) (quoting Lively, 804 P.2d at 70 ); Standish v. Department of Revenue, 235 Kan. 900 , 683 P.2d 1276, 1280 (1984) (stating that "administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it").

2008See McNeill, 2007 NMCA-024, ¶¶ 20-25, 141 N.M. 212 , 153 P.3d 46 . {27} Thus, we turn to a more flexible standard than that established by Carter Farms, but one which remains faithful to the fundamentals of oil and gas and tort law.

2008Injury in fact has evolved in New Mexico jurisprudence in response to developments in federal law that created a more flexible standard, departing from older, more formalistic notions of a “legally protected interest.” See De Vargas Sav. & Loan Ass’n v. Campbell, 87 N.M. 469, 471 , 535 P.2d 1320, 1323 (1975) (noting that “[t]he flaw in the ‘legal interest’ test is that it requires a court to examine the merits of a case, while the purpose of the standing question is quite distinct — to protect against improper plaintiffs”).

2008Injury in fact has evolved in New Mexico jurisprudence in response to developments in federal law that created a more flexible standard, departing from older, more formalistic notions of a “legally protected interest.” See De Vargas Sav. & Loan Ass’n v. Campbell, 87 N.M. 469, 471 , 535 P.2d 1320, 1323 (1975) (noting that “[t]he flaw in the ‘legal interest’ test is that it requires a court to examine the merits of a case, while the purpose of the standing question is quite distinct — to protect against improper plaintiffs”).

2008See McNeill, 2007 NMCA-024, ¶¶ 20-25, 141 N.M. 212 , 153 P.3d 46 . {27} Thus, we turn to a more flexible standard than that established by Carter Farms, but one which remains faithful to the fundamentals of oil and gas and tort law.

2003See also United States v. Collins, 61 F.3d 1379, 1384 (9th Cir.1995) (stating that "staleness is *873 evaluated in light of the particular facts of the case and the nature of the criminal activity and [the] property sought") (internal quotation marks and citation omitted); Simmons v. State, 899 P.2d 931, 934 (Alaska Ct.App.1995) (recognizing that staleness "is determined by a flexible test, ... one that takes into account not just the raw passage of time but the totality of the circumstances of each case"); Commonwealth v. Klimkowicz, 331 Pa.Super. 75 , 479 A.2d 1086, 1089 (1984) ("The validit

2003See also United States v. Collins, 61 F.3d 1379, 1384 (9th Cir.1995) (stating that “staleness is evaluated in light of the particular facts of the case and the nature of the criminal activity and [the] property sought”) (internal quotation marks and citation omitted); Simmons v. State, 899 P.2d 931, 934 (Alaska CtApp.1995) (recognizing that staleness “is determined by a flexible test, ... one that takes into account not just the raw passage of time but the totality of the circumstances of each case”); Commonwealth v. Klimkowicz, 331 Pa.Super. 75 , 479 A.2d 1086, 1089 (1984) (“The validity of a

2003See also United States v. Collins, 61 F.3d 1379, 1384 (9th Cir.1995) (stating that "staleness is *873 evaluated in light of the particular facts of the case and the nature of the criminal activity and [the] property sought") (internal quotation marks and citation omitted); Simmons v. State, 899 P.2d 931, 934 (Alaska Ct.App.1995) (recognizing that staleness "is determined by a flexible test, ... one that takes into account not just the raw passage of time but the totality of the circumstances of each case"); Commonwealth v. Klimkowicz, 331 Pa.Super. 75 , 479 A.2d 1086, 1089 (1984) ("The validit

2003See also United States v. Collins, 61 F.3d 1379, 1384 (9th Cir.1995) (stating that “staleness is evaluated in light of the particular facts of the case and the nature of the criminal activity and [the] property sought”) (internal quotation marks and citation omitted); Simmons v. State, 899 P.2d 931, 934 (Alaska CtApp.1995) (recognizing that staleness “is determined by a flexible test, ... one that takes into account not just the raw passage of time but the totality of the circumstances of each case”); Commonwealth v. Klimkowicz, 331 Pa.Super. 75 , 479 A.2d 1086, 1089 (1984) (“The validity of a

2003See also United States v. Collins, 61 F.3d 1379, 1384 (9th Cir.1995) (stating that "staleness is *873 evaluated in light of the particular facts of the case and the nature of the criminal activity and [the] property sought") (internal quotation marks and citation omitted); Simmons v. State, 899 P.2d 931, 934 (Alaska Ct.App.1995) (recognizing that staleness "is determined by a flexible test, ... one that takes into account not just the raw passage of time but the totality of the circumstances of each case"); Commonwealth v. Klimkowicz, 331 Pa.Super. 75 , 479 A.2d 1086, 1089 (1984) ("The validit

2003See also United States v. Collins, 61 F.3d 1379, 1384 (9th Cir.1995) (stating that "staleness is *873 evaluated in light of the particular facts of the case and the nature of the criminal activity and [the] property sought") (internal quotation marks and citation omitted); Simmons v. State, 899 P.2d 931, 934 (Alaska Ct.App.1995) (recognizing that staleness "is determined by a flexible test, ... one that takes into account not just the raw passage of time but the totality of the circumstances of each case"); Commonwealth v. Klimkowicz, 331 Pa.Super. 75 , 479 A.2d 1086, 1089 (1984) ("The validit

1998See Garcia, 111 N.M. at 588 , 808 P.2d at 38 .

1998See Garcia, 111 N.M. at 588 , 808 P.2d at 38 .

1992Bernhard v. Rochester German Insurance Co., 79 Conn. 388 , 65 A. 134, 138 (1906), which the State Trust & Savings Bank court quoted approvingly, stated: Courts are more and more coming to recognize that a rule forbidding an allowance for interest upon unliquidated damages is one well calculated to defeat that purpose in many cases, and that no right reason exists for drawing an arbitrary distinction between liquidated and unliquidated damages____ The determination of whether or [not] interest is to be recognized as a proper element of damage is one to be made in view of the demands of justice

1992Bernhard v. Rochester German Insurance Co., 79 Conn. 388 , 65 A. 134, 138 (1906), which the State Trust & Savings Bank court quoted approvingly, stated: Courts are more and more coming to recognize that a rule forbidding an allowance for interest upon unliquidated damages is one well calculated to defeat that purpose in many cases, and that no right reason exists for drawing an arbitrary distinction between liquidated and unliquidated damages____ The determination of whether or [not] interest is to be recognized as a proper element of damage is one to be made in view of the demands of justice

1992See Enlace, 848 F.2d at 317 ; McNeal, 842 F.2d at 790 . 2 Under this analysis, federal courts consider “aggravating factors” including: (1) whether the plaintiff personally contributed to the delay; (2) whether the delay caused the defendant actual prejudice; and (3) whether the delay can be characterized as intentional.