State v. Gutierrez, 909 P.2d 751 (N.M. Ct. App. 1995). · Go Syfert
State v. Gutierrez, 909 P.2d 751 (N.M. Ct. App. 1995). Cases Citing This Book View Copy Cite
101 citation events (99 in the last 25 years) across 2 distinct courts.
Strongest positive: State v. Multine (nmctapp, 2025-03-20) · Strongest negative: State v. Marquez (nm, 2009-11-18)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 22 distinct citers.
examined Cited "but see" State v. Marquez (4×)
N.M. · 2009 · signal: but see · confidence high
In a DWI trial, the improper admission of scientific evidence indicating that Defendant was legally intoxicated at the time of driving will "almost certainly ... tip the balance in favor of the State." State v. Downey, 2008-NMSC-061, ¶ 39 , 145 N.M. 232 , 195 P.3d 1244 (internal quotation marks and citation omitted); see id. ¶¶ 16, 39 (holding that the improper admission of expert testimony indicating that the defendant had a BAC in the range of .075 to .111 at the time of driving was not harmless); Torres, 1999-NMSC-010, ¶ 53 , 127 N.M. 20 , 976 P.2d 20 (holding that the improper admissio…
discussed Cited as authority (rule) State v. Multine
N.M. Ct. App. · 2025 · confidence medium
She testified that Defendant had alcohol 3 in his blood and that the amount of alcohol in his blood could impair his ability to 4 drive. 5 {36} Viewing all of this testimony together under our deferential standard of 6 review, we hold that the evidence suffices to support Defendant’s DWI conviction. 7 See State v. Gutierrez, 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 909 P.2d 751 8 (upholding a DWI conviction when the defendant smelled of alcohol, had bloodshot 9 and watery eyes, failed field sobriety tests, admitted to drinking alcohol, the 10 defendant’s vehicle was weaving into other traffic …
discussed Cited as authority (rule) State v. Rivera
N.M. Ct. App. · 2011 · confidence medium
See State v. Soto, 2007-NMCA-077, ¶¶ 3, 4, 34 , 142 21 N.M. 32 , 162 P.3d 187 (holding that there was sufficient evidence of DWI under the 20 1 impaired-to-the-slightest-degree standard even though the officers observed no 2 irregular driving, the defendant’s behavior was not irregular, he was cooperative, and 3 no field sobriety tests were conducted, given that the defendant “had red, bloodshot, 4 and watery eyes, as well as slurred speech and a very strong odor of alcohol on his 5 breath[,]” the defendant admitted drinking, the officers observed several empty cans 6 of beer where the…
cited Cited as authority (rule) State v. Smith
N.M. Ct. App. · 1999 · signal: cf. · confidence medium
See Cavanaugh, 116 N.M. at 829 , 867 P.2d at 1211 ; Ruiz, 120 N.M. at 540 , 903 P.2d at 851 ; cf. State v. Gutierrez, 121 N.M. 191, 193 , 909 P.2d 751, 753 (Ct.App.1995) (in dicta).
discussed Cited "see" State v. Multine (2×)
N.M. Ct. App. · 2025 · signal: see · confidence high
See State v. Gutierrez, 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 909 P.2d 751 (upholding a DWI conviction when the defendant smelled of alcohol, had bloodshot and watery eyes, failed field sobriety tests, admitted to drinking alcohol, the defendant’s vehicle was weaving into other traffic lanes, defendant nearly hit another vehicle on the road, and the officers believed the defendant was intoxicated).
discussed Cited "see" State v. Hernandez (2×)
N.M. Ct. App. · 2025 · signal: see · confidence high
See State v. Gutierrez, 1996- NMCA-001, ¶ 4, 121 N.M. 191 , 909 P.2d 751 (upholding a DWI conviction when the defendant smelled of alcohol, had bloodshot and watery eyes, failed field sobriety tests, admitted to drinking alcohol, and the defendant’s vehicle was weaving into other traffic lanes and narrowly missed hitting a truck). {4} Defendant next asserts that the trial court erred in allowing the State to present evidence of signs of intoxication that occurred after the BAC test was administered. [MIO 7-8] In our proposed disposition, we noted that Defendant did not provide us details of…
discussed Cited "see" State v. Miller (2×)
N.M. Ct. App. · 2023 · signal: see · confidence high
See State v. Gutierrez, 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 909 P.2d 751 (concluding that evidence showing that the defendant narrowly missed hitting a truck, smelled of alcohol, failed three field sobriety tests, and admitted drinking alcohol and smoking marijuana sufficed to support his DWI conviction); see also State v. Neal, 2008-NMCA- 008, ¶ 29, 143 N.M. 341 , 176 P.3d 330 (concluding that evidence showing that the defendant smelled of alcohol, admitted drinking alcohol, and showed signs of intoxication during field sobriety tests sufficed to support his DWI conviction).
discussed Cited "see" State v. Gonzales (2×)
N.M. Ct. App. · 2016 · signal: see · confidence high
See Majority Op. ¶ 9, see also State v. Gutierrez, 6 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 909 P.2d 751 (“In a bench trial, the trial court 7 is presumed to have disregarded improper evidence, and erroneous admission of 8 evidence is not reversible error unless it appears the trial court must have relied on it 9 in reaching its decision.”(internal quotation marks and citation omitted)).
discussed Cited "see" State v. Freed (2×)
N.M. Ct. App. · 2016 · signal: see · confidence high
See State v. Gutierrez, 1996-NMCA-001 , ¶ 3, 121 N.M. 191 , 11 909 P.2d 751 (stating that “reference to an argument, allegedly made in metropolitan 12 court, does not specifically apprise the district court of the nature of the claimed error, 13 and[] in fact, the district court did not address this issue” and stating that the defendant 14 did not file a motion for reconsideration when the district court failed to address the 15 issue, and holding that the defendant abandoned the issue); see also State v. Vigil, 16 2014-NMCA-096, ¶ 18 , 336 P.3d 380 (holding that a defendant who raised a…
discussed Cited "see" State v. Vigil (2×)
N.M. Ct. App. · 2014 · signal: see · confidence high
See State v. Gutierrez, 1996-NMCA-001 , ¶ 3, 121 N.M. 191 , 909 P.2d 751 .
discussed Cited "see" State v. Vigil (2×)
N.M. Ct. App. · 2014 · signal: see · confidence high
See State v. Gutierrez, 1996-NMCA-001 , ¶ 3, 121 N.M. 191 , 909 P.2d 751 .
discussed Cited "see" State v. Rivera (2×)
N.M. Ct. App. · 2013 · signal: see · confidence high
See 10 State v. Gutierrez, 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 909 P.2d 751 (“In a bench 11 trial, the trial court is presumed to have disregarded improper evidence, and erroneous 12 admission of evidence is not reversible error unless it appears the trial court must have 13 relied on it in reaching its decision.” (internal quotation marks and citation omitted)). 14 Additionally, we observe that the Rules of Evidence do not apply at sentencing, see 15 Rule 11-1101(D)(3)(c) NMRA, and the trial court has “broad statutory authority to 16 consider at sentencing ‘whatever evidence or state…
discussed Cited "see" State v. Gutierrez (2×)
N.M. Ct. App. · 2012 · signal: see · confidence high
See State v. Sparks, 102 N.M. 317, 320 , 694 19 P.2d 1382 , 1385 (Ct. App. 1985) (defining substantial evidence as that evidence which 2 1 a reasonable person would consider adequate to support a defendant’s conviction); see 2 also State v. Gutierrez, 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 909 P.2d 751 3 (upholding a DWI conviction based on behavior evidence when the defendant smelled 4 of alcohol, had bloodshot and watery eyes, failed field sobriety tests, admitted to 5 drinking alcohol, and the defendant’s vehicle was weaving into other traffic lanes); 6 State v. Dutchover, 85 N.M. 72, 74 …
discussed Cited "see" State v. Valenzuela (2×)
N.M. Ct. App. · 2012 · signal: see · confidence high
See State v. Gutierrez, 1996-NMCA- 14 001, ¶ 4, 121 N.M. 191 , 909 P.2d 751 (upholding a DWI conviction where the 15 defendant smelled of alcohol, had bloodshot and watery eyes, failed field sobriety 16 tests, admitted to drinking alcohol, and the defendant’s vehicle was weaving into other 17 traffic lanes); see also State v. Neal, 2008-NMCA-008, ¶¶ 26, 29 , 143 N.M. 341 , 176 18 P.3d 330 (holding that evidence was sufficient to support a reasonable inference that 19 the defendant was under the influence of alcohol where he was seen veering over the 3 1 shoulder line of the road; he smell…
discussed Cited "see" State v. Holgate (2×)
N.M. Ct. App. · 2010 · signal: see · confidence high
See id. 4 Accordingly, we find no error in the district court’s refusal to grant Defendant a new 5 trial. 6 Claimed Error in the Admission of Evidence 7 Defendant asserts that the district court erred in admitting evidence that 8 Defendant believes in aliens. [DS 5] Defendant contends that this evidence was more 9 unfairly prejudicial than probative and should have been excluded pursuant to Rule 10 11-403 NMRA. [DS 6] 11 In this Court’s notice of proposed summary disposition, we stated that to the 12 degree that the evidence was inadmissible,“[i]n a bench trial, the trial court is 13 pre…
examined Cited "see" State v. Pickett (8×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See State v. Gutierrez, 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 909 P.2d 751 (noting that the defendant was not convicted of having a particular BAC level, but of the more general offense of driving while intoxicated).
discussed Cited "see" State v. Lizzol (2×)
N.M. Ct. App. · 2006 · signal: see · confidence high
See State v. Gutierrez, 1996-NMCA-001 , 121 N.M. 191 , 909 P.2d 751 .
discussed Cited "see, e.g." State v. Read (2×)
N.M. Ct. App. · 2012 · signal: see also · confidence low
See 18 State v. Sparks, 102 N.M. 317, 320 , 694 P.2d 1382, 1385 (Ct. App. 1985) (defining 19 substantial evidence as that evidence which a reasonable person would consider 3 1 adequate to support a defendant’s conviction); see also State v. Gutierrez, 2 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 909 P.2d 751 (upholding a DWI conviction 3 based on behavior evidence when the defendant smelled of alcohol, had bloodshot and 4 watery eyes, failed field sobriety tests, admitted to drinking alcohol, and the 5 defendant’s vehicle was weaving into other traffic lanes); Dutchover, 85 N.M. at 73 , 6 509 P.…
discussed Cited "see, e.g." State v. Benallie (2×)
N.M. Ct. App. · 2010 · signal: see also · confidence low
See 15 State v. Sparks, 102 N.M. 317, 320 , 694 P.2d 1382, 1385 (Ct. App. 1985) (defining 16 substantial evidence as that evidence which a reasonable person would consider 17 adequate to support a defendant’s conviction); see also State v. Gutierrez, 18 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 909 P.2d 751 (filed 1995) (upholding a DWI 4 1 conviction based on behavior evidence when the defendant smelled of alcohol, had 2 bloodshot and watery eyes, failed field sobriety tests, admitted to drinking alcohol, 3 and the defendant’s vehicle was weaving into other traffic lanes); State v. Neal, 2008-…
discussed Cited "see, e.g." State v. Benallie (2×)
N.M. Ct. App. · 2009 · signal: see also · confidence low
See 12 State v. Sparks, 102 N.M. 317, 320 , 694 P.2d 1382, 1385 (Ct. App. 1985) (defining 13 substantial evidence as that evidence which a reasonable person would consider 14 adequate to support a defendant’s conviction); see also State v. Gutierrez, 15 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 909 P.2d 751 (filed 1995) (upholding a DWI 16 conviction based on behavior evidence when the defendant smelled of alcohol, had 17 bloodshot and watery eyes, failed field sobriety tests, admitted to drinking alcohol, 18 and the defendant’s vehicle was weaving into other traffic lanes); State v. Neal, 2008…
discussed Cited "see, e.g." State v. C Franklin (2×)
N.M. Ct. App. · 2009 · signal: see, e.g. · confidence low
See, e.g., State v. Gutierrez, 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 20 909 P.2d 751 (including field sobriety test performance among the evidence that the 21 defendant was impaired). 5 1 For the reasons set forth above, we affirm the district court. 2 IT IS SO ORDERED. 3 4 MICHAEL E.
discussed Cited "see, e.g." State v. S Bedah (2×)
N.M. Ct. App. · 2009 · signal: see also · confidence low
See 18 State v. Sparks, 102 N.M. 317, 320 , 694 P.2d 1382, 1385 (Ct. App. 1985) (defining 3 1 substantial evidence as that evidence which a reasonable person would consider 2 adequate to support a defendant’s conviction); see also State v. Gutierrez, 3 1996-NMCA-001 , ¶ 4, 121 N.M. 191 , 909 P.2d 751 (upholding a DWI conviction 4 based on behavior evidence when the defendant smelled of alcohol, had bloodshot and 5 watery eyes, failed field sobriety tests, admitted to drinking alcohol, and the 6 defendant's vehicle was weaving into other traffic lanes); State v. Christmas, 7 2002-NMCA-020, �…
STATE of New Mexico, Plaintiff-Appellee,
v.
Larry GUTIERREZ, Defendant-Appellant
15800.
New Mexico Court of Appeals.
Nov 15, 1995.
909 P.2d 751
Tom Udall, Attorney General, Anthony Tupler, Asst. Attorney General, Santa Fe, for Plaintiff-Appellee., Robert E. Tangora, Santa Fe, for Defendant-Appellant.
Bosson, Apodaca, Pickard.
Cited by 40 opinions  |  Published

OPINION

BOSSON, Judge.

1. Defendant appeals the district court affirmance of his metropolitan court convictions for driving under the influence of intoxicating liquor or drugs (DWI), failure to maintain traffic lane, and no proof of insurance. On appeal, Defendant challenges the admission of the breath alcohol test (BAT) results and claims that the State failed to provide him with dispatcher call records (CAD) and Department of Motor Vehicle (DMV) reports, violating his right to confrontation. We affirm the decision of the district court.

BREATH ALCOHOL TEST

2. Defendant challenges the admission of the BAT results on two grounds: improper admission of hearsay statement and inadequate foundation provided to allow admission.

Hearsay Objection

3. Defendant argues that the only instances where a BAT card is admissible under the hearsay rule are in those cases where the defendant is entitled to an appeal de novo. See SCRA 1986, 7-607(A) (Repl. 1994). It appears that, even if this issue had been presented to the metropolitan court, it was abandoned on appeal to the district court. Nothing in the briefs that were presented to the district court would have alerted the district court to Defendant’s argument that the BAT is inadmissible hearsay in cases not allowing an appeal de novo. See, e.g., State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct.App.1986) (to preserve an issue for appeal, defendant must make a timely objection which specifically apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon). The only argument in Defendant’s district court brief was his objection to the admission of the BAT test, because the State “had not produced the proper witness to prove up the calibration of the machine.” Defendant mentioned that he had argued the inapplicability of SCRA 7-607 to the metropolitan court, but he presented no argument to the district court regarding why SCRA 7-607 would be inapplicable to his case. It is our opinion that reference to an argument, allegedly made in metropolitan court, does not specifically apprise the district court of the nature of the claimed error, and, in fact, the district court did not address this issue. Finally, Defendant did not file a motion for reconsideration when the district court failed to address this issue in its memorandum opinion. We hold Defendant abandoned this issue, and we do not address it on appeal. Lucero, 104 N.M. at 590, 725 P.2d at 269.

4. Even if Defendant had not abandoned this issue and the BAT card were inadmissible, we would still affirm. Defendant was not convicted of having a particular blood-alcohol level. He was convicted of the more general offense of driving while intoxicated. Compare NMSA 1978, § 66-8-102(A) (Repl.Pamp.1994) (unlawful to drive under influence of intoxicating liquor) with Section 66-8-102(0 (unlawful to drive with alcohol concentration of .08 in blood or breath). The evidence presented to the metropolitan court, without consideration of the BAT results, fully supports Defendant’s conviction under subsection A. See State v. Copeland, 105 N.M. 27, 34, 727 P.2d 1342, 1349 (Ct.App.) (evidence supported finding that the defendant was under the influence of intoxicating liquor), cert. denied, 104 N.M. 702, 726 P.2d 856 (1986). There was evidence that Defendant was weaving into other traffic lanes; Defendant narrowly missed hitting a truck; Defendant smelled of alcohol and had bloodshot, watery eyes; Defendant failed three field sobriety tests; Defendant admitted drinking alcohol and smoking marijuana; and the officers believed that Defendant was intoxicated. “In a bench trial, the trial court is presumed to have disregarded improper evidence, and erroneous admission of evidence is not reversible error unless it appears the trial court must have relied on it in reaching its decision.” See State v. Roybal, 107 N.M. 309, 310, 756 P.2d 1204, 1205 (Ct. App.), cert. denied, 107 N.M. 267, 755 P.2d 605 (1988). Therefore, in light of the overwhelming evidence of Defendant’s guilt, admission of the BAT card, if erroneous, was harmless. Id. at 312, 756 P.2d at 1207 (holding admission of challenged evidence is harmless error where the record contains other properly admitted evidence that independently establishes guilt). We affirm on this issue.

Proper Foundation for Admission of BAT

5. Defendant also argues that more foundation is required than just the testimony of the testing officer to admit the BAT card into evidence. Because we hold that any error in admission of the BAT card is harmless, we need not address this issue. Moreover, we disagree with Defendant’s argument on this issue. In this case, Officer Marquez testified concerning his training in DWI investigations. He further testified that he had investigated over 1,000 DWI cases; that he was certified to give the BAT; that the machine appeared to be working properly; that he recognized the BAT card presented by the State; and that according to his training and the State Laboratories instructions, the calibration of the breath analyzing machine was within the time frame required. This is sufficient foundation for admission of the BAT card. See State v. Cavanaugh, 116 N.M. 826, 829, 867 P.2d 1208, 1211 (Ct.App.1993) (once officer testified that machine was calibrated one week prior to test, any questions about an officer’s ability to give the test goes to the weight of the evidence, not its admissibility), cert. denied, 117 N.M. 121, 869 P.2d 820 (1994). Under Cavanaugh, once Officer Marquez testified that the calibration of the machine was within the required time frame, any doubts about his ability to administer the test would go to the weight, not the admissibility, of the evidence. See also State v. Ruiz, 120 N.M. 534, 903 P.2d 845 (Ct.App.), cert. denied, 120 N.M. 498, 903 P.2d 240 (1995).

CAD AND DMV REPORTS

6. Defendant claims that he was prejudiced by the State’s failure to provide him with the CAD and DMV reports prior to trial. According to Officer Gonzales, the CAD report consisted of a recording of his call to the dispatcher reciting the license plate number of Defendant’s vehicle, the location of the stop, and his request for a DWI unit. The DMV report contained observations of the arresting officer and the BAT score. One copy is sent to DMV, and according to the testimony, the other copy is handed to the defendant. See NMSA 1978, §§ 66-8-111, 66-8-111.1 (Repl.Pamp.1994). The prosecution 'did not have actual possession of either the CAD report or the DMV report. The CAD report was with the Albuquerque Police Department and the DMV report was with that agency. The statute does not require that the district attorney receive a copy of the DMV report. Defendant formally requested production of both reports and repeatedly moved to dismiss when they were not forthcoming.

7. Defendant relies primarily on SCRA 1986, 7-504(C) (Repl.1994) to argue that the State must actively turn over witness statements to the defense and not just maintain an “open-file policy.” SCRA 7-504(C) provides:

Not less than ten (10) days before trial the prosecution and defendant shall exchange a list of the names and addresses of the witnesses each intends to call at the trial together with any recorded statement made by the witness.

Defendant argues that the State must do more than provide access; that at least in metropolitan court an “open-file” policy is not the equivalent of an “exchange” of witness statements. Cf. SCRA 1986, 5-501(A) (Repl. 1992) (for district courts requiring only that the state “disclose or make available to defendant” documents including witness statements); State v. Quintana, 86 N.M. 666, 669-70, 526 P.2d 808, 811-12 (Ct.App.) (interpreting the former rule for district courts as not requiring hand delivery to defense), cert. denied, 86 N.M. 656, 526 P.2d 798 (1974). Defendant interprets the metropolitan court rule as placing the burden upon each party to locate and turn over recorded statements of all witnesses each respective side intends to caU at trial. See SCRA 1986, 6-504(C) (Repl. 1995) (same rule for magistrate court as metropolitan court).

8. Both Defendant and the State offer some interesting arguments in support of their respective positions. However, we need not and do not reach the merits of those arguments today, because in this case Defendant has failed to show any unfair prejudice. See State v. Bartlett, 109 N.M. 679, 680, 789 P.2d 627, 628 (Ct.App.1990). It is apparently undisputed that a copy of the DMV report was, in fact, delivered to the Defendant personally at the time of the incident. Defendant has not shown what happened to that report or why that did not suffice to avoid prejudice. Similarly, an accused should at least explore the “open-file policy” at the district attorney’s office, the APD, and the DMV, before claiming the extreme prejudice necessary to justify an outright dismissal. Defendant made no showing of attempting to secure the reports from these other agencies. Most importantly, Defendant failed to show why a less drastic remedy, such as a brief continuance or an order to compel, would not have sufficed. Defendant did not explore those options. All Defendant really needed was an opportunity to obtain these statements prior to cross-examination. Therefore, the district court was well within its discretion to reject dismissal, absent a showing that all other recourse was inadequate or unfair. See State v. Tomlinson, 98 N.M. 337, 339, 648 P.2d 795, 797 (Ct.App.), rev’d on other grounds, 98 N.M. 213, 647 P.2d 415 (1982).

9. For the reasons stated, the decision of the district court is hereby affirmed in all respects.

10. IT IS SO ORDERED.

APODACA, C.J., and PICKARD, J., concur.