State v. Warford

                                                                      Office of the Director               New Mexico
                                                                       08:27:48 2022.07.26                 Compilation
                                                                                     '00'06-               Commission


            IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: April 14, 2022

No. A-1-CA-36798

STATE OF NEW MEXICO,

        Plaintiff-Appellee,

v.

ROGER WARFORD,

        Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Fred T. Van Soelen, District Judge

Hector H. Balderas, Attorney General
Eran Sharon, Assistant Attorney General
Santa Fe, NM

for Appellee

Lindsey Law Firm, LLC
Daniel R. Lindsey
Clovis, NM

for Appellant

                                              OPINION

MEDINA, Judge.

{1}    After conditionally pleading guilty to driving while under the influence of
intoxicating liquor or drugs (DWI), contrary to NMSA 1978, § 66-8-102(A) (2010,
amended 2016) 1, Roger Warford (Defendant) appeals the district court’s denial of his
motion to exclude the results of a blood draw performed pursuant to the Implied
Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2019).
Defendant argues the phlebotomist who drew his blood was not authorized to do so
because, according to Defendant, a phlebotomist is not a laboratory technician under

1Section 66-8-102(D)(3) was held unconstitutional by this Court in State v. Storey, 

,
¶ 32, 

. That subsection refers to aggravated DWI, which is not at issue here, and Storey did
not affect the constitutionality of the subsections we reference in this opinion.
NMSA 1978, § 66-8-103 (1978) and the phlebotomist in this case was not employed by
a hospital because her direct employer was a laboratory that contracted with the
hospital where she worked. We conclude, consistent with our Supreme Court’s recent
decision in State v. Adams, 

, 

, that phlebotomists who
have adequate training and experience are qualified as laboratory technicians to
perform legal blood draws under the Implied Consent Act so long as they were
employed to do so by a hospital or physician. Id. ¶ 1. We further conclude that, given
the facts and circumstances presented in this case, the phlebotomist who drew
Defendant’s blood was employed by a hospital. Finally, we conclude that Defendant’s
additional argument that there was insufficient evidence to support the enhancement of
his DWI conviction is without merit. We affirm.

BACKGROUND

{2}     In January 2015, Defendant drove into a motel parking lot and parked next to a
vehicle in which two police officers were conducting surveillance of a motel room
pending receipt of a search warrant. Defendant stepped out of his truck, staggered to
the passenger side of the officers’ vehicle, and asked them if they were police officers.
Defendant then walked towards the hotel, went upstairs, and approached the room the
officers intended to search. The officers prevented Defendant from entering the room.
Defendant had bloodshot and watery eyes, an odor of alcohol on his breath, and slurred
speech. He also had two sixteen-ounce beer cans, one half empty and one unopened,
in his jacket. Defendant admitted to having consumed five to six sixteen-ounce beers.

{3}     A uniformed officer was summoned to investigate Defendant for DWI. Defendant
failed standardized field sobriety tests and was arrested for DWI. Defendant agreed to a
blood test and was transported to the Plains Regional Medical Center (PRMC), a
hospital in Clovis, where Mirna Gaxiola, a certified phlebotomist, drew Defendant’s
blood for testing.

{4}    Defendant was charged with DWI (4th Offense). Defendant moved to exclude his
blood test results. Defendant asserted the evidence was insufficient to demonstrate the
testing was conducted in accordance with the Implied Consent Act, under Section 66-8-
103, which provides that “[o]nly a physician, licensed professional or practical nurse or
laboratory technician or technologist employed by a hospital or physician shall withdraw
blood from any person in the performance of a blood-alcohol test.” Id.; see also § 66-8-
109(A) (“Only the persons authorized by Section 66-8-103 . . . shall withdraw blood from
any person for the purpose of determining its alcohol or drug content.”).

{5}    The State responded that under Section 66-8-103, laboratory technicians are
included in the categories of approved medical personnel authorized to draw blood
under Section 66-8-109 and that under 7.33.2.15(A)(1) NMAC, the term laboratory
technician includes phlebotomists. From this, the State argued that Gaxiola was
authorized to draw Defendant’s blood under Section 66-8-103 because she attended
and completed a Phlebotomy Technique Training course at Eastern New Mexico
University, and upon completion was certified as a Phlebotomy Technician.
{6}     During a hearing on the motion, Defendant argued the district court was required
to exclude the blood test because Gaxiola did not fall into any of the statutory
categories, and therefore was not qualified to conduct the test. Defendant provided the
district court with a copy of a recorded pretrial interview he conducted of Gaxiola in
which she stated she was a certified phlebotomist, not a licensed professional,
laboratory technologist or technician, or hospital employee.

{7}    At a later hearing, the district court denied Defendant’s motion to exclude,
explaining that, despite Gaxiola’s statements, based on its own legal research and
given Gaxiola’s status as a phlebotomist for TriCore Laboratory (TriCore), which
contracts with the hospital to perform all of the hospital’s blood services, she “is a
technician under the statute employed by the hospital for the purposes of the Implied
Consent Act.”

{8}    Defendant entered a conditional plea of no contest to DWI, reserving the right to
appeal the ruling on any motion filed in the case. Defendant then appealed to this Court.
After ordering supplemental briefing on two issues, 2 we certified this case to the New
Mexico Supreme Court, as it presented a similar question of statutory construction to six
other cases before our Supreme Court.

{9}   Following acceptance of the certification of this case, our Supreme Court issued
an opinion in Adams, holding that an emergency medical technician (EMT) who was
employed by a hospital or physician and had adequate training and experience in
performing blood draws qualified as a “laboratory technician” for the purposes of
Section 66-8-103. Adams, 

. Our Supreme Court subsequently
quashed certification of this case, returning it to this Court.

DISCUSSION

I.     The District Court’s Denial of the Motion to Exclude the Blood Test Results
       Was Not an Abuse of Discretion

{10} Generally, “[w]e review the [district] court’s decision to exclude or admit evidence
for an abuse of discretion.” State v. Hanson, 

, 

.
“This case requires us to engage in statutory interpretation to determine what the
appropriate foundation is for admitting the results of blood tests to determine the content
of alcohol or drugs under the Implied Consent Act. We do so under a de novo standard
of review.” State v. Garcia, 

, 

.

{11} The Implied Consent Act provides in relevant part that “[o]nly the persons
authorized by Section 66-8-103 . . . shall withdraw blood from any person for the
purpose of determining its alcohol or drug content.” Section 66-8-109(A). Section 66-8-
103 in turn limits the class of persons who may withdraw blood to the following: “Only a

2The parties were ordered to brief (1) whether Section 66-8-103 requires a laboratory technician to be
employed by a hospital or physician; and (2) assuming Gaxiola was a laboratory technician, whether she
was employed by a hospital or physician under Section 66-8-103.
physician, licensed professional or practical nurse or laboratory technician or
technologist employed by a hospital or physician shall withdraw blood from any person
in the performance of a blood-alcohol test.”

{12} On appeal, Defendant contends that the phlebotomist who drew his blood does
not qualify as a “laboratory technician,” is not employed by a hospital or physician, and,
as a result, was not authorized to perform blood draws under Section 66-8-103. We first
address whether the phlebotomist in this case qualified as a laboratory technician.
Concluding she does, we next address whether the fact that the phlebotomist was
employed by TriCore, and not directly with the hospital, renders her unqualified. We
conclude that she was qualified.

A.    The Phlebotomist in This Case Qualified as a Laboratory Technician

{13} In light of our Supreme Court’s recent opinion in Adams and for the reasons that
follow, we hold that the district court correctly concluded that Gaxiola was a laboratory
technician under Section 66-8-103.

{14} In Adams, addressing arguments highly similar to those here, our Supreme Court
determined that an EMT is qualified to draw blood as a “laboratory technician” under
Section 66-8-103 “so long as they were employed to do so by a hospital or physician
and have adequate training and experience.” Adams, 

. Adams
addressed whether this Court’s decision in Garcia, which held that the EMT in that case
was not authorized to draw blood under Section 66-8-103, precluded all EMTs from
being qualified to draw blood under that provision. See Garcia, 

. The defendant in Adams argued that Garcia stood for the proposition that EMTs
did not fall under the five enumerated categories of those who may perform blood draws
and that the Legislature did not intend to authorize legal blood draws by anyone falling
outside those categories. Adams, 

. Our Supreme Court rejected
these contentions. The Court concluded, after examining the dictionary definitions of
“laboratory technician,” that the term “laboratory technician” was ambiguous on its face,
id. ¶¶ 11-15, and then proceeded to examine the legislative purpose of the Implied
Consent Act, see id. ¶¶ 16-29. As part of this examination, the Court contrasted the
facts of Garcia with the facts in Adams. In Garcia, the EMT who performed the blood
draw did so improperly and was not trained to perform blood draws for the purposes of
the Implied Consent Act. Adams, 

. In contrast, the EMT who
performed the blood draw in Adams had specifically been trained to perform blood
draws “for [the] purposes of determining drug and alcohol content” and one of her job
duties was to “perform legal blood-alcohol blood draws at the request of law
enforcement personnel.” Id. ¶ 31 (alteration, internal quotation marks, and citation
omitted). The EMT also had performed thousands of blood draws and performed the
contested blood draw in accordance with the instructions in the Scientific Laboratory
Division (SLD) kit. Id. ¶ 32.

{15} Our Supreme Court then held that “EMTs who are employed by a hospital or
physician and who possess the proper education and experience” are qualified as
laboratory technicians to perform blood draws under Section 66-8-103. Adams, 2022-
NMSC-008, ¶ 34. In so holding, our Supreme Court observed that “[p]rohibiting medical
professionals who possess such training in this area from administering blood draws
would needlessly impose burdens on the discovery and removal of the intoxicated driver
and, thus, thwart the legislative policy.” Id. (internal quotation marks and citation
omitted).

{16} Adams informs our analysis in this case. The State argues that Gaxiola is
qualified to draw blood under Section 66-8-103 because the Legislature intended that
people with her skills and experience should fall within the “laboratory technician”
category, noting that SLD’s regulations specifically include “phlebotomists” in the
definition of laboratory technicians. See 7.33.2.15(A) NMAC (“The term laboratory
technician shall include phlebotomists.”); cf. Adams, 

 (stating that
this Court’s opinion in Garcia addressed the EMT’s lack of qualifications to draw blood
for the purposes of Section 66-8-103, not whether an EMT with greater experience and
training could potentially draw blood under the statute). We agree.

{17} The record reflects that Gaxiola, like the EMT in Adams, had the requisite
training and experience to draw Defendant’s blood. The district court found that Gaxiola,
a phlebotomist, was a technician under the statute. Defendant does not contest the
finding, which was based on the pretrial interview Defendant submitted to the court.
Gaxiola completed a phlebotomy course from Eastern New Mexico University in
Portales. Gaxiola stated that upon graduating from the course she received a certificate
demonstrating that she was a certified phlebotomist. Soon after graduation, she was
hired by TriCore as a Clinical Lab Assistant I to perform blood draws at PRMC. She also
received additional training in blood draw procedures once placed at PRMC. See
Adams, 

 (“[The EMT] testified that she was taught how to perform
blood draws by other nurses and technicians [at the hospital].”). Gaxiola explained that
she was the only clinical lab assistant working during her shifts, which entailed
conducting blood draws during morning rounds at the hospital, and stated that she
performed approximately fifty blood draws during each of her shifts.

{18} Gaxiola also demonstrated knowledge of legal blood draw procedures, including
ensuring the SLD kit was sealed and not expired, following the instructions on the kit,
and sealing the kit and returning it to the requesting officer. Gaxiola stated that when
law enforcement presented her with individuals for implied consent blood draws, she
performed those blood draws in a room designated for law enforcement related blood
draws. See Adams, 

 (observing that the EMT could explain the
difference between a hospital blood draw and a law enforcement blood draw). And,
when officers provided her with SLD blood draw test kits, she only used kits that were
sealed and not expired. See Garcia, 

 (“SLD-approved blood draw
kits include everything that is needed for a blood draw to ensure continuity and
standardization, and to avoid compromising the accuracy and integrity of blood
samples.”). She followed the instructions that came with the kit. Once she completed
the blood draw, Gaxiola sealed the test kit box and returned it to the requesting officer.
{19} Consistent with Adams, we conclude that prohibiting phlebotomists—with
adequate training and experience to perform legal blood draws—from administering
blood draws would thwart the legislative purpose of the Implied Consent Act. 2022-
NMSC-008, ¶ 34. We therefore conclude that Gaxiola, who possessed the requisite
training and experience to perform blood draws, qualified as a laboratory technician
within the meaning of Section 66-8-103, so long as she was employed by a hospital or
physician—the matter we turn to next.

B.      The Phlebotomist in This Case Was “Employed” by a Hospital Within the
        Meaning of Section 66-8-103 3

{20} We next determine whether Gaxiola was an employee of a hospital for the
purposes of Section 66-8-103. See Adams, 

 (clarifying in part that
“in order for a medical professional to qualify as a laboratory technician for the purposes
of performing legal blood draws, the person must be employed by a hospital or
physician to perform blood draws”). Defendant argues that even if Gaxiola was “deemed
a technician or technologist,” she was not qualified to perform his blood draw because
she was not employed by a hospital or physician as specified in Section 66-8-103. We
disagree and explain.

{21} We first observe that, while Adams stated that Section 66-8-103 requires a
laboratory technician or technologist to be employed by a hospital, Adams did not
consider what the term “employed” encompassed. See Adams, 

 (stating that a laboratory technician must be “employed to [draw blood] by a hospital,”
but not interpreting the term “employed”). Thus, whether Gaxiola is considered an
employee of a hospital for the purposes of Section 66-8-103 is a question of first
impression regarding the interpretation of the statute that we review de novo. See State
v. Duhon, 

, 

, 

.

{22} “Our primary goal when interpreting statutory language is to give effect to the
intent of the [L]egislature.” State v. Torres, 

, 

, 

. “We first look to the plain meaning of the statutory language.” State v.
Farish, 

, 

. “When words are not otherwise defined in
a statute, we give those words their ordinary meaning absent clear and express
legislative intention to the contrary. To do so, we consult common dictionary definitions.”
Adams, 

 (alteration, internal quotation marks, and citation
omitted). “Unless ambiguity exists, [the appellate courts] must adhere to the plain
meaning of the language.” 

 (internal quotation marks and citation omitted). We,
however, will not do so if the plain meaning “leads to an absurd or unreasonable result.”
State v. Marshall, 

, 

, 

. “A statute is
ambiguous when it can be understood by reasonably well-informed persons in two or
more different senses.” Adams, 

 (internal quotation marks and

3During the January 30, 2017 hearing, defense counsel argued that Section 66-8-103 required a
technician to be employed by a hospital and that Gaxiola was not a hospital employee. The district court
later ruled that Gaxiola was an employee of the hospital for purposes of the statute. We therefore reject
the State’s contention that this issue was not preserved.
citation omitted). “If the relevant statutory language is unclear, ambiguous, or
reasonably subject to multiple interpretations, then the Court should proceed with
further statutory analysis.” State v. Almanzar, 

, 

. In
this context, our courts often have turned to the legislative purpose of the Implied
Consent Act to discern legislative intent. See, e.g., Adams, 

;
Garcia, 

; State v. Wiberg, 

, ¶¶ 13-17, 

, 

; State v. Trujillo, 

, ¶ 21, 

, 

. “Accordingly, we analyze these statutes not only within the statutory scheme of
the Motor Vehicle Code but also within the context of the policy underlying the offense
of DWI. The purpose of our DWI legislation is to protect the health, safety, and welfare
of the people of New Mexico.” State v. Johnson, 

, ¶ 6, 

, 

.

{23} We first observe that the term “employ” means “[t]o commission and entrust with
the performance of certain acts or functions” in addition to its often-used meaning “[t]o
hire.” Employ, Black’s Law Dictionary (11th ed. 2019). Defendant advances a strict
adherence to the meaning of employ, advocating that a laboratory technician must be
directly employed by a hospital or physician. The State, in contrast, argues that the term
should be construed more broadly in light of the purposes of the Implied Consent Act.
We agree with the State.

{24} We conclude that the term “employ” is ambiguous on its face, in that it can
reasonably be understood to have more than one meaning, as both the State and
Defendant have argued on appeal. We therefore turn next to the legislative purpose of
Section 66-8-103. See Adams, 

. We must analyze the term
“through the lens of the Legislature’s intended purpose, which [our Supreme Court has]
conclude[d] encompasses two goals: (1) to protect patients subject to a blood draw and
(2) to ensure the collection of a reliable blood sample for use in DWI prosecutions.” Id. ¶
22. Contrary to Defendant’s argument, requiring a laboratory technician to be directly
employed by a hospital or physician is not necessary to achieve these purposes. An
examination of the facts and circumstances of this case makes this evident.

{25} Upon completing her phlebotomy class, Gaxiola applied for and was hired as a
Clinical Lab Assistant I by TriCore in August or September 2014. PRMC contracted with
TriCore to perform blood draws. TriCore placed Gaxiola at PRMC to perform the
hospital’s blood draws, where she received additional training in PRMC’s blood-draw
procedures. Gaxiola worked at PRMC through TriCore for nearly two years. Gaxiola’s
explanation of her job duties as a phlebotomist at PRMC shows that PRMC entrusted
her with the performance of blood draws during her shifts, even if PRMC did not hire her
directly. In sum, the record demonstrates that PRMC contracted with TriCore, who in
turn hired Gaxiola, a phlebotomist, to perform legal blood draws, trained her in blood-draw procedures, and determined she was qualified to perform blood draws, including
legal blood-draw tests.

{26} In light of this record, determining that Gaxiola was an employee of the hospital
for the purposes of Section 66-8-103 is consistent with the dual purposes of this
provision—i.e., ensuring the safety of Defendant and ensuring the reliability of the blood
test. See Adams, 

 (“Allowing EMTs who, along with their
certification, have the training and experience in the skill of drawing blood to perform
legal blood draw tests and who are employed by a hospital or physician to do so,
furthers the purpose of the statute to ensure the safety of the patient and the reliability
of the blood sample.”). Furthermore, determining that Gaxiola was an employee of
PRMC supports Section 66-8-103’s purpose “to deter driving while intoxicated and aid
in discovering and removing from the highways the intoxicated driver.” See Adams,

 (internal quotation marks and citation omitted). It is also
consistent with this Court’s and our Supreme Court’s previous constructions of Section
66-8-103 “to broaden, not narrow, the category of individuals authorized to draw blood.”
Adams, 

; see id. ¶¶ 23-29 (discussing this Court’s decisions in
Trujillo, Wiberg, and Garcia). Holding otherwise—i.e., that Gaxiola was not a hospital
employee simply because she was not directly employed by the hospital or a physician
but rather employed by TriCore, a contractor used by the hospital to perform blood
draws—would “unnecessarily limit the classes of individuals who could assist in
furthering the statute’s legislative purpose” and produce the absurd result of
disqualifying technicians the hospital trained to perform implied consent blood draws.
See id. ¶ 27 (internal quotation marks and citation omitted); Wiberg, 

, ¶
13 (rejecting a construction of Section 66-8-103 as it would “unnecessarily limit the
classes of individuals who could assist in furthering the statute’s legislative purpose” of
“aid[ing] in discovering and removing the intoxicated driver from the highways”).
Consistent with the legislative purpose of the Implied Consent Act, we interpret the term
“employ” in Section 66-8-103 to encompass Gaxiola’s relationship to PRMC, which
entrusted her with the performance of legal blood draws. See Employ, Black’s Law
Dictionary (11th ed. 2019); Adams, 

 (“[S]uch medical professionals
are qualified to draw blood under [Section 66-8-103] so long as they were employed to
do so by a hospital.” (emphasis added)); see also Adams, 

 (“It is
the Court’s responsibility to resolve any ambiguity in Section 66-8-103 in a way that
supports the legislative purpose to deter driving while intoxicated and aid in discovering
and removing from the highways the intoxicated driver.” (internal quotation marks and
citation omitted)).

{27} Therefore, based on the foregoing, we hold that Gaxiola was qualified, under
Section 66-8-103, as a laboratory technician employed by a hospital to perform
Defendant’s blood draw, and we affirm the district court’s denial of Defendant’s motion
to exclude.

II.    The District Court Properly Enhanced Defendant’s DWI Conviction

{28} Defendant next challenges the use of one of his prior DWI convictions to
enhance his DWI sentence in this case, arguing the State did not meet its burden in
showing that the prior conviction was counseled. For the reasons that follow, we affirm.
A person convicted of DWI who has been convicted of previous DWI charges faces
enhanced penalties. See § 66-8-102(F)-(J) (2010). When prior DWI convictions are
used to enhance a defendant’s sentence, “[t]he [s]tate bears the initial burden of
establishing a prima facie case of a defendant’s previous convictions.” State v. Sedillo,

, 

, 

. “Proof beyond a reasonable doubt of
the prior DWI convictions is not needed.” 

 Once a prima facie case is established,
“[t]he defendant is then entitled to bring forth contrary evidence. However, the [s]tate
bears the ultimate burden of persuasion on the validity of prior convictions.” 

 (citation
omitted).

{29} The State attached a certified copy of an abstract of record from the Motor
Vehicle Division of the Taxation and Revenue Department (1991 Abstract) to its
enhancement information. The 1991 Abstract documented Defendant’s August 1990
DWI arrest, identified a court docket number, and showed that a hearing was held in
October 1991; Defendant requested counsel, he entered a plea of guilty, and he
received a sentence of ninety days with eighty-three days suspended. In addition to
identifying the sentence and fine imposed for the DWI conviction, the “remarks” box on
the 1991 Abstract contains the text “P.D. Raina Owen, 620 Roma NW” and is signed by
Bernalillo County Metropolitan Court Judge Mark Shapiro.

{30} Defendant argued below, as he does on appeal, that the 1991 Abstract did not
establish that an attorney was appointed to represent him. The district court reviewed
the abstract and stated during a hearing that the name of Raina Owen was located in
the 1991 Abstract where the name of defense counsel’s name usually appears.
Defense counsel suggested that “P.D.” could stand for police department or probation
department and that the address of 620 Roma NW might be the address for the
Albuquerque Police Department. The district court took the matter under advisement.

{31} In September 2017, the district court issued a letter decision, finding that the
1991 Abstract showed Defendant requested counsel and “includes what appears to be
the name and address of an attorney, ‘P.D. Raina Owen, 620 Roma NW.’” The district
court noted that the defense had not come forward with evidence challenging the
validity of Defendant’s 1991 DWI conviction, rejected Defendant’s argument that the
notation “P.D. Raina Owen, 620 Roma NW” could have been the address of the police
department, and concluded that Defendant’s 1991 prior conviction would be used to
enhance Defendant’s sentence.

{32} The parties appeared for a sentencing hearing during which defense counsel
again asserted that “P.D. Raina Owen 620 Roma NW” might be reference to a “police
station” or “some other thing” and objected to the district court’s finding that it was
documentation of the attorney who represented Defendant in 1991. The district court
reiterated that the defense had not come forward with evidence to challenge the validity
of the State’s prima facie evidence of Defendant’s prior DWI conviction, and stated: (1)
where the name Raina Owen and the 620 Roma address appear on the abstract is the
location the court knows the name of defense counsel is located; and (2) based on that
knowledge, the most reasonable explanation is that “P.D.” stands for “public defender.”
The district court enhanced Defendant’s DWI conviction with his 1991 DWI conviction.
{33} “The burden on making a prima facie case is not onerous on the [s]tate.” State v.
Simmons, 

, 

, 

 (discussing habitual
offender enhancements). A “prima facie case” is defined as “a party’s production of
enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s
favor.” Yurcic v. City of Gallup, 

, 

 (alteration, internal
quotation marks, and citation omitted). The 1991 Abstract undisputedly contained the
following evidence: (1) Defendant’s 1990 arrest in Bernalillo County; (2) Defendant’s
request for an attorney; (3) Defendant’s DWI guilty plea; (4) the finding of Defendant’s
guilt in 1991; (5) the name and signature of the judge who found him guilty; (6) a handwritten notation of “P.D. Raina Owen, 620 Roma NW”; and (7) Defendant’s DWI
sentence. The district court used its experience to find the information sufficient to infer
that Defendant was represented by counsel, Raina Owen, when he plead guilty to DWI
in 1991, because the name Raina Owen appeared on the abstract where the district
court expects defense counsel to be identified. 4 We conclude that the foregoing was
sufficient to meet the State’s initial burden of proving its prima facie case of Defendant’s
1991 DWI conviction. See Sedillo, 

.

{34} The burden then shifted to Defendant to show that his prior DWI conviction was
invalid by demonstrating that the notation “P.D. Raina Owen, 620 Roma NW” does not
indicate Defendant was represented by counsel. See Simmons, 

(“[T]he [s]tate must make its prima facie showing, including all of the required elements
for a prior felony conviction as defined by the habitual offender statute, and then the
burden of proof shifts to the defendant.”). Defendant did not do so. Instead, Defendant
speculated that the initials “P.D.” could stand for “police department” or “probation
department” and that “620 Roma NW” might be the address of the Albuquerque Police
Department. Counsel’s speculations are not evidence demonstrating the invalidity of a
prior conviction. See State v. Cordova, 

, 

(“[A]rgument of counsel is not evidence.” (internal quotation marks and citation
omitted)). To the extent Defendant’s conjectures gave rise to a conflict in the
interpretation of the information contained on the 1991 Abstract, the district court, as
fact-finder, was entitled to reject Defendant’s interpretation of the evidence. See Sedillo,

.

{35} In sum, we conclude that the State met its initial burden of proving a prima facie
case of Defendant’s 1991 DWI conviction, and Defendant failed to rebut this showing.

CONCLUSION

{36} For the foregoing reasons, we affirm the district court’s denial of Defendant’s
motion to exclude his blood test results and the enhancement of his sentence.



4Defendant’s unsubstantiated accusation that the district court’s finding was arrived at through
independent investigation of facts outside the record, in violation of Rule 21-209(C) NMRA, supplies no
basis for relief on appeal. See State v. Hall, 

, 

 (“It is not our practice
to rely on assertions of counsel unaccompanied by support in the record.” (internal quotation marks and
citation omitted)).
{37}   IT IS SO ORDERED.

JACQUELINE R. MEDINA, Judge

WE CONCUR:

JENNIFER L. ATTREP, Judge

ZACHARY A. IVES, Judge