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STATE v. DAY

No. 29,953.

176 P.3d 1091 (2008)

2008-NMSC-007

STATE of New Mexico, Plaintiff-Petitioner, v. John C. DAY, III, Defendant-Respondent.

Supreme Court of New Mexico.

January 8, 2008.

Attorney(s) appearing for the Case

Gary K. King, Attorney General, Stuart M. Bluestone, Chief .Deputy Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, Scot D. Key, District Attorney, Alamogordo, NM, for Petitioner.

John Bigelow, Chief Public Defender, William A. O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

Kari E. Brandenburg, Gary J. Cade, Albuquerque, NM, for Amicus Curiae, Second Judicial District. Attorney.

Donna M. Bevacqua-Young, Santa Fe, NM for Amicus Curiae, New Mexico District Attorneys' Association.

Robert M. White, Peter L. Dinelli, Richard J. Moran, Albuquerque, NM, for Amicus Curiae, City of Albuquerque,

Janice Stitziel Bloom, Irving, TX, for Amicus Curiae, Mothers Against Drunk Driving.

OPINION

SERNA, Justice.

{1} John C. Day, III, (Defendant) was convicted of driving with an alcohol concentration of eight one-hundredths (0.08) or more in his breath or blood (third offense), known as per se DWI, and consumption or possession of an open container of an alcoholic beverage. The Court of Appeals reversed Defendant's conviction for per se DWI based on insufficient evidence because the State did not present scientific retrograde extrapolation...

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