{9} Where a driver consents to testing, the police must administer any tests in accordance with regulations approved by SLD. Section 66-8-107(A); see State v. Vaughn, 2005-NMCA-076, ¶ 35, 137 N.M. 674, 114 P.3d 354 (describing SLD's responsibility for test development). SLD "is authorized to promulgate and approve satisfactory techniques or methods to test persons believed to be operating a motor vehicle . . . under the influence of drugs or alcohol." NMSA 1978, Section 24-l-22(A) (2003).

{13} We decline to address Defendant's argument because he did not properly preserve it. See State v. Vaughn, 2005-NMCA-076, ¶ 7, 137 N.M. 674, 114 P.3d 354. Under Gomez, our first inquiry must be whether the state constitution has been held to provide greater protection under similar circumstances than the federal constitution does.

. . ." State v. Vaughn, 2005-NMCA-076, ¶ 8, 137 N.M. 674, 114 P.3d 354; State v. Angel, 2002-NMSC-025, ¶ 8, 132 N.M. 501, 51 P.3d 1155 (stating that, in a criminal trial, jeopardy attaches at the moment the trial of fact is empowered). {10} In this case, the jury was sworn and impaneled to determine Defendant's innocence or guilt.

First, as noted above, the trial court initially entered a dismissal that erroneously issued a directed verdict for Defendant. In State v. Vaughn, 2005-NMCA-076, ¶ 9, 137 N.M. 674, ¶ 14 P.3d 354, this Court explained that under the doctrine of double jeopardy a defendant cannot be retried "after a verdict of acquittal, even if that verdict is egregiously erroneous." See also State v. Rodriguez, 2004-NMCA-125, ¶ 14, 136 N.M. 494, 100 P.3d 200 (holding that double jeopardy prohibited the re-trial of the defendant even though the jury mistakenly returned a verdict of acquittal and issued a new and corrected verdict within minutes), cert. granted, 2004-NMCERT-010, 136 N.M. 542, 101 P.3d 808.

The type of protection Defendant seeks from the double jeopardy clause is the "protection against a second prosecution for the same offense after an acquittal." State v. Vaughn, 2005-NMCA-076, ¶ 8, 137 N.M. 674, 114 P.3d 354. The core meaning of the double jeopardy clause of the constitution requires that "`[a] judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal'" State v. Archuleta, 112 N.M. 55, 58, 811 P.2d 88, 91 (Ct.App. 1991) (citation omitted).

While New Mexico law states that its courts' orders generally are not final and effective until written, it also holds that entry of a written order is a “ministerial act” that does not affect a judgment's validity. Compare State v. Vaughn, 2005-NMCA-076, ¶ 24, 114 P.3d 354, 362, with De Lao v. Garcia, 1981-NMCA-091, ¶ 6, 633 P.2d 1237, 1238; see also U.S. Bank, Nat'l Ass'n v. Kesler, No. 35,165, 2017 WL 3484776, at *7 (N.M. Ct. App. July 18, 2017) (unpublished) (oral order granting summary judgment constituted disposition of case to which the defendant could file a motion for reconsideration in response). As Judge Ritter noted, Plaintiffs do not contest that the state court dismissed their claims against Jack's Truck Repair, only that Defendants needed a final written order pursuant to the New Mexico Rules of Civil Procedure.

New Mexico law generally requires, with few exceptions, that a court reduce its order to writing to be final and effective. State v. Sanders, 1981-NMCA-053, ¶¶ 24-25, 628 P.2d 1134, 1138; State v. Vaughn, 2005-NMCA-076, ¶ 24, 114 P.3d 354, 362; but see State v. Ratchford, 1993-NMSC-024, ¶ 20, 855 P.2d 556, 559 (oral orders are not a nullity). However, the Court concludes that New Mexico law regarding written orders does not control here.

Where a driver consents to testing, the police must administer any tests in accordance with regulations approved by State Laboratory Division ("SLD") of the New Mexico Department of Health. NMSA 1978, § 66-8-107(A); see State v. Vaughn, 2005-NMCA-076, ¶ 35, 137 N.M. 674, 114 P.3d 354 (describing SLD's responsibility for test development). SLD promulgated a regulation governing the conduct of breath tests.

Simply agreeing to provide a sample is meaningless if the subject does not actually follow through and provide a sufficient sample. See State v. Vaughn, 137 N.M. 674, 686 (Ct. App. 2005) ("The plain language of the [Implied Consent Act] indicate[s] legislative intent to motivate suspects to take the test and to punish those who do not take the breath test correctly" so that those who fail to provide the requisite number of samples "have refused to take the test as designed"). In addition, not only did Plaintiff fail to complete the breath test because of his alleged injury, he did, in fact, explicitly refuse to take the breath test on at least one occasion.

In this context, the New Mexico Court of Appeals has specifically held that the words "submit to chemical testing" mean to "provide two breath samples." State v. Vaughn, 2005-NMCA-076, ¶ 41, 137 N.M. 674, 114 P.3d 354. Accordingly, "those who, without reasonable justification, provide [only] one sample have failed to take the test `as provided for in the Implied Consent Act.'" Id. (quoting N.M. Stat. Ann. § 66-8-102(D)(3)).