Defendant pointed out that without a DWI instruction, the only alternatives the jury would have would be letting Defendant go "Scott-free" or convicting him of GBI by vehicle. The State opposed the instruction, arguing that DWI was not a lesser-included offense of GBI by vehicle under the holdings of State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App. 1973) and State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975). Relying on Trujillo, the trial court denied Defendant's requested instruction on DWI.

If the defendant is convicted of homicide by reason of driving on the wrong side of the road it is a misdemeanor. Cf., State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App. 1973). A "lesser included offense" is one which is one composed of some, but not all, elements of a greater offense and which does not have any element not included in the greater offense so that it is impossible to commit the greater offense without necessarily committing the lesser offense.

To answer this contention, we first look to our own cases construing the statute. {12} In State v. Trujillo, 1973–NMCA–076, ¶¶ 2–3, 15–16, 85 N.M. 208, 510 P.2d 1079, the defendant was arrested for driving while intoxicated and taken to a hospital where a laboratory technologist who was employed by a physician, but not licensed, withdrew his blood in a medically approved manner. The defendant argued that the statute identifies five authorized categories: (1) a physician; (2) a licensed professional nurse; (3) a licensed practical nurse; (4) a laboratory technician; and (5) a laboratory technologist.

{24} In State v. Trujillo , the Court of Appeals addressed the issue whether a medical professional, trained and experienced in drawing blood but lacking a license, was authorized to draw blood as a "technologist" under the statute. 1973-NMCA-076, ¶ 15, 85 N.M. 208, 510 P.2d 1079. The Court of Appeals held that "the statute [wa]s ambiguous" as to whether "the Legislature intend[ed] that a technologist be licensed[.]"

All of the defendants in the present case were conscious at the time of their blood tests. Filmon v State, 336 So.2d 586 (Fla, 1976), app dis 430 U.S. 980; 97 S Ct 1675; 52 L Ed 2d 375 (1977); State v Trujillo, 85 N.M. 208; 510 P.2d 1079 (1973); People v Kates, 53 N.Y.2d 591; 428 N.E.2d 852; 444 N.Y.S.2d 446 (1981). Ariz. Rev Stat Ann § 28-691(C) (West Supp 1987); Iowa Code Ann § 321J.7 (West Supp 1988); Ohio Rev Code Ann § 4511.19.1(B) (Page Supp 1986); SC Code Ann § 56-5-2950(c) (Law Co-Op Supp 1987).

This language has been interpreted to mean that such a test result is prima facie proof, sufficient to go to the jury, that defendant was under the influence of intoxicating liquor. State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App. 1973). This case further notes that the evidence giving rise to the presumption is to be considered with other evidence in the case on the question of being under the influence and the presumption may be rebutted by such other evidence.

As soon as he presented his first witness on the issue, the presumption of intoxication had served its purpose as a procedural device and should have been eliminated for the case. See United States v. Hendrix (2nd Cir. 1976), 542 F.2d 879, 882, cert. den. 430 U.S. 959, 97 S.Ct. 1609, 51 L.Ed.2d 810 (1977); Commonwealth v. Moreira (1982), 385 Mass. 792, 434 N.E.2d 196, 199; but see State v. Trujillo (1973), 85 N.M. 208, 510 P.2d 1079, 1084. Like any other presumption, a burden-of-production presumption may also represent scientific, statistical, or common-knowledge evidence linking the predicate and presumed facts.

The Court of Appeals' expansion of the meaning of the requirement that the offense be committed "in the presence of" the officer is unnecessary to the determination of this case because, under our interpretation of Section 66-8-102, the trial court had before it evidence upon which it could have found that the offense of DWI literally occurred in the arresting officer's presence. See generally City of Roswell v. Mayer, 78 N.M. at 534-35, 433 P.2d at 758-59; State v. Trujillo, 85 N.M. 208, 211, 510 P.2d 1079, 1082 (Ct.App. 1973) (fact patterns supporting probable cause for DWI). The record indicates that the officer found defendant in the driver's seat of his automobile, conscious, parked in a traffic lane with the automobile's motor running but its lights off, at 11:10 p.m.; that he smelled alcohol on defendant's breath when he approached the automobile to investigate the situation; and that he observed defendant's slurred speech and unsteady walking even before he asked defendant to submit to a field sobriety test.

We are supported in this view by a recent decision of the Supreme Court of New Mexico. See State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (1973). We reject appellant's assertion that the conduct of the police officer at the hospital where the five remaining accident victims were present constituted a dragnet technique because he had all five tested.

The presumption established is a rebuttable one. That is, it merely establishes a prima facie case, sufficient to go to the jury, that defendant was under the influence of intoxicating liquor. See State v. Trujillo, 85 N.M. 208, 510 P.2d 1079, 1084 (N.M.App. 1973). We hold that this statute does not require extrapolation back but establishes that the percentage of blood alcohol as shown by chemical analysis relates back to the time of the alleged offense for purposes of applying the statutory presumption.