(specially concurring).
{22} I concur in the result of Judge Robinson’s opinion. I do not agree with the analytical path Judge Robinson’s opinion takes. In particular, I do not think it is appropriate to question the district attorney’s certification under Section 39-3-3(B)(2) for the first time on appeal. In addition, I believe the opinion’s double jeopardy discussion is wrong in two respects. First, it misinterprets the holding of County of Los Alamos v. Tapia, 109 N.M. 736, 790 P.2d 1017 (1990), and its concept of “trial error” and, second, it is improper to decide the merits of the evidentiary issue in order to determine that there was no “trial error” under the Tapia rubric. Finally, it is illogical to decide the evidentiary issue while at the same time holding that the State does not have the right to appeal the issue. Opinion, ¶¶ 16-17. Were I the original author, I would resolve the case as follows.
{23} The State appeals asserting that it has a right to an immediate appeal under Section 39-3-3(B)(2) from a ruling — issued midtrial — excluding evidence. We reject the State’s contention and affirm the district court.
FACTS AND PROCEEDINGS
{24} A criminal complaint was filed against Defendant Gomez on May 11, 2001, charging him generically with violating Section 66-8-102(DWI). The facts underlying the complaint are contained in an attached affidavit signed by Officer Jason Tutor. According to the affidavit, Defendant was found “unconscious or asleep” lying across the front seat of his truck with the driver’s door open. The engine was off and the keys were not in the ignition. The keys were later found in Defendant’s pants pocket. Defendant was in a state of dishevelment, wearing no shirt or shoes, pants unzipped, belt unfastened and smelling of alcohol. When asked for his driver’s license, Defendant tried to give the officer a bank card. Defendant could not complete field sobriety tests and was taken to a medical facility to “have blood drawn to determine his blood alcohol concentration and to obtain a clearance for the Chaves County Detention Center.”
{25} The case was dismissed in September 2001 because the district court felt the complaint did not establish there was probable cause to believe Defendant was driving while under the influence. This ruling was reversed by the Court of Appeals in an unpublished opinion (State v. Gomez, Ct.App. No. 22,577, filed Dec. 27, 2001), and the reversal was affirmed by our Supreme Court, State v. Gomez, 2003-NMSC-012, 133 N.M. 763, 70 P.3d 753. The case was mandated back to the district court in early June 2003.
{26} The case was set for jury trial on December 3, 2003. Before seating a jury, the district court held a brief meeting with counsel to deal with certain administrative details generally irrelevant here. The State had filed a motion in limine asking that domestic violence allegations against one of the arresting officers not be brought to light. The judge stated he would prefer to take the matter up after the jury was impaneled, but before testimony. Defense counsel asked that the district court deal with “late witness disclosure issues” at that time also. On inquiry, the State’s counsel informed the court that “we could not locate the nurse” so the State had available someone else to testify that the missing witness was a registered nurse at the time she drew Defendant’s blood. The court stated that “we’ll deal with all of that in the interval after we pick the jury.” Neither trial counsel pressed the district court to take the matter up sooner.
{27} After the jury was sworn, the district court addressed the late witness disclosure issue. The State filed an amended witness list the day before trial dropping the nurse who drew Defendant’s blood. Defense counsel complained about the late change because the nurse had been identified as a witness since mid-November. Defendant’s counsel also asserted that Officer Tutor had admitted to counsel that he could not recall anything about the blood draw.
{28} After some discussion, the district court decided to receive a proffer of evidence concerning the blood draw. The State called only Officer Tutor who identified his signature on a standardized form that he signed as a witness to the blood draw. The officer admitted he had no independent recollection of the draw and he did not know whether the nurse followed proper procedures or not.
{29} After argument by counsel, the district court ruled that the State had not provided sufficient foundation for the blood alcohol report because no one could say whether the State Laboratory protocol for blood draws was followed. The district court ruled it would not allow the blood test as evidence.
{30} Expressing surprise at the district court’s ruling, the State asked for a recess to reevaluate the case. Following the recess, the State orally moved for an immediate appeal of the ruling under Section 39-3-3(B)(2), asserting that the passage of time and circumstances had overtaken it. The State asserted that a case involving a similar issue was currently pending before our Supreme Court. The State specifically asked the district court not to declare a mistrial. The prosecutor also stated “If I had known this was coming up before the jury was empaneled, we could have handled it differently.”
{31} In response, the district court expressed some dissatisfaction with the State’s lack of diligence in preparing the case for trial — which it repeated later in the colloquy with State’s counsel. The district court also focused on the fact that the request for an appeal was being made midtrial. The district court was skeptical whether a mistrial appeal as of right was possible under any statutory provision. The district court also stated that it was “not inclined to stop this trial for an appeal” asserting that it perceived the primary issue in the case to be “control of the vehicle, it’s not intoxication.” The judge also observed that he did not view his ruling as a suppression, but rather as a foundation issue.
{32} The State continued to assert it could appeal as a matter of right. Apparently, viewing any appeal the State might have as interlocutory, the district court stated that it would not certify the matter for appeal. The district court expressed its view that the State could not appeal after the jury had been empaneled.
{33} The conversation continued thereafter with the State explaining how the ruling weakened its case and the district court expressing its frustration with the fact that the State had only “yesterday” discovered that the nurse was unavailable having assured the district court repeatedly over the course of six hearings that it was ready to proceed with trial. After making clear to the State that in its opinion the State could not appeal, the district court called a second recess.
{34} Upon reconvening, the State’s counsel again asserted that the State had a “right as a matter of course to appeal the case.” The State filed a notice in open court. The district court twice expressed its amazement at this turn and reiterated its view that “there is no appeal.” The district court asked if the State was ready to proceed and the State stated only that it was ready to proceed on appeal. After another extended colloquy about the situation, defense counsel asked the district court either to instruct the State to call a witness or to dismiss the case because the State “isn’t going forward with the prosecution.”
{35} The district court confirmed with the State that it would not be calling any witnesses. Receiving confirmation, the judge directed a verdict of acquittal and dismissed the State’s case. The judge informed the jury of the situation and that he had directed a verdict of acquittal.
{36} The district court entered an order Directing Verdict and Judgment of Acquittal which succinctly summarized the events described above. The decretal language of the Order makes clear the district court’s intent to render a decision on the merits:
IT IS THEREFORE ORDERED that, after a jury having been impaneled and the [S]tate not presenting any evidence to support a charge of Driving While Intoxicated, the court directs a verdict of not guilty be entered in this matter.
DISCUSSION
{37} Section 39-3-3(B)(2) provides:
B. By the state. In any criminal proceeding in district court an appeal may be taken by the state to the supreme court or court of appeals, as appellate jurisdiction may be vested by law in these courts:
(2) within ten days from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property, if the district attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
The State argues that this provision gives it an absolute and automatic right to immediately appeal rulings suppressing or excluding evidence even when the ruling is issued mid-trial; that is, after jeopardy has attached. To our knowledge, this argument has never been made before to a New Mexico appellate court, and we reject it.
{38} Though not entirely clear, the State seems to posit a “plain meaning of the statute” argument. The State’s Brief in Chief simply quotes the statute and asserts a “clear legislative intent” to grant the State a right to appeal in situations such as we have here. The State does not discuss in any detail the practical or theoretical difficulties posed by its position. It does acknowledge, though quite obliquely, the interlocutory nature of the appeal it seeks to prosecute by citing State v. Ahasteen, 1998-NMCA-158, ¶ 10, 126 N.M. 238, 968 P.2d 328, for the notion that we should give the concept of finality a practical construction.
{39} Our primary task in interpreting a statute is discerning legislative intent. State v. Martinez, 2006-NMCA-068, ¶ 5, 139 N.M. 741, 137 P.3d 1195. We start by examining the plain language of a statute. If the language is clear we enforce it unless it is contrary to constitutional principles or would lead to absurd results. State v. Gutierrez, 115 N.M. 551, 552, 854 P.2d 878, 879 (Ct.App.1993). The language of Section 39-3-3(B)(2) is deceptively simple and direct. It grants a ten-day time frame within which the State may appeal “a decision or order of a district court suppressing or excluding evidence.” It does not explicitly address or make any distinction between pretrial versus midtrial rulings.
{40} We have observed that appeal of a suppression order is fundamentally an interlocutory appeal. State v. Alvarez, 113 N.M. 82, 84, 823 P.2d 324, 326 (Ct.App.1991) (holding that the ten-day time to appeal Section 39-3-3(B) controls the timing of appeals of suppression orders). We stated that the “mandatory nature of suppression order appeals is rooted in Section 39-3-3(B), not the constitution.” Id. In practice we have routinely accepted appeals from pretrial suppression and exclusionary orders entered by our district courts, though we have been careful to limit such appeals to the letter of the statute. See State v. Griego, 2004-NMCA-107, ¶ 6, 136 N.M. 272, 96 P.3d 1192 (noting that denial of a motion in limine seeking to restrict impeachment of the victim did not meet the requirements of Section 39-3-3(B)(2) and was not appealable under it).
{41} To our knowledge we have never accepted, or been asked to accept as an automatic interlocutory matter, an appeal from a suppression or exclusionary ruling issued after the start of trial unless the trial was brought to an orderly conclusion releasing the jury or the district judge exercised his discretion to allow an appeal. For example, in State v. Joe, 2003-NMCA-071, ¶ 15, 133 N.M. 741, 69 P.3d 251, we considered an appeal of a midtrial suppression order that resulted in a directed verdict on one of the pending charges. There were other charges unaffected by the suppression ruling, but the district court granted a mistrial as to them, to which no one objected. Here, the State specifically requested the district court not to enter a mistrial. In Romero, 2000-NMCA-029, ¶ 6, 128 N.M. 806, 999 P.2d 1038, we considered an appeal of an exclusionary evidentiary ruling apparently midtrial. There was no question raised about appealability there because the State moved to appeal under Section 39-3-3(B)(2), and the district court granted the motion. Here, of course, the district court explicitly refused to certify or grant an interlocutory appeal. We note that the State has never argued that the district court abused its discretion by its refusal.
{42} We think it is clear why the issue has not been presented before: it is simply unworkable and absurd to allow automatic appeals from midtrial rulings given the havoc such a procedure could wreak with trials. In any trial, district court judges have to make numerous evidentiary rulings. It is the better part of a district judge’s job. Some rulings will be more difficult and serious than others, but many will meet the criteria of Section 39-3-3(B)(2). It would be an intolerable burden on jurors, witnesses, defendants, the district courts, and even the State, to allow automatic suspension of ongoing trials for months or years. Contrary to the beguiling simplicity and clarity of Section 39 — 3—3(B)(2), we do not believe the legislature intended to give the State the power to disrupt ongoing trials at its discretion, The timing of the ruling — whether it comes pretrial or after jeopardy has attached — is critical to the meaning of the statute. We hold that Section 39-3-3(B)(2) does not provide an automatic appeal from suppression or exclusionary orders entered after jeopardy has attached in a trial.
{43} Because the State did not have the right to appeal, we dismiss this appeal. Given our resolution of the case we do not need to, and in fact cannot, deal with the merits of the district court’s evidentiary ruling. To avoid continued litigation on remand, we hold that the district court’s dismissal constitutes an acquittal and prevents the State from reprosecuting Defendant for this incident. The State’s refusal to present any evidence resulted, as the district court noted, in a failure of proof and the district court’s order was an adjudication of innocence based on that failure of proof. The State’s actions caused the dismissal and double jeopardy principles preclude retrial. See Joe, 2003-NMCA-071, ¶ 16, 133 N.M. 741, 69 P.3d 251, citing Tapia, 109 N.M. at 739-40, 790 P.2d at 1020-21.