State v. Storey
410 P.3d 256
| N.M. Ct. App. | 2017Background
- Police observed Julian Storey swerving across lanes in Albuquerque; deputies smelled burnt marijuana and found a marijuana pipe in his vehicle. Storey admitted smoking a few hours earlier.
- Deputy Jareno administered field sobriety tests; Storey performed poorly on several tests and two alternate tests, leading to his arrest for DUI.
- At the station Storey submitted to a breath test (negative for alcohol) but refused a requested blood test; he was advised his refusal could affect his license and sentence.
- A metropolitan court jury convicted Storey of aggravated DUI (based on refusal to submit to chemical testing), possession of drug paraphernalia, and failure to maintain lane; the district court affirmed.
- On appeal, Storey challenged (inter alia) denial of juror strikes, sufficiency of the DUI evidence, prosecutor comments during closing, and constitutionality of NMSA 1978 § 66-8-102(D)(3) (aggravation for refusing warrantless blood draw).
- The Court applied Birchfield and Vargas, holding the statute unconstitutional as applied to refusal of a warrantless blood draw for drugs, reversed the aggravated-DUI enhancement, but upheld admission/commentary on the refusal and affirmed remaining convictions; remanded to enter judgment/sentence for the underlying DUI.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Storey) | Held |
|---|---|---|---|
| 1. Denial of juror strikes for cause | Jurors were not biased; voir dire was sufficient and trial court discretion proper | Jurors expressed inability to apply correct law re: impairment from any drug/alcohol and should be struck | Trial court did not abuse discretion; defendant failed to show jurors actually biased or incapable of following instructions |
| 2. Sufficiency of evidence for DUI/aggravated DUI | Evidence (odor, pipe, admission, failed FSTs, unsafe driving, refusal) supports DUI and aggravated DUI | Driving could be explained by vehicle problems/bumpy road; FSTs not dispositive | Substantial evidence supported DUI; but aggravated enhancement based on blood refusal is unconstitutional as applied |
| 3. Prosecutor comments on refusal to submit to blood test | Comment on refusal as consciousness of guilt was permissible evidence; defense opened the door by raising refusal in opening | Comment improperly punished exercise of Fourth Amendment right after Birchfield | Permissible: Birchfield bars criminal punishment for refusal to warrantless blood draw but does not prohibit introducing evidence of refusal or arguing it as consciousness of guilt; trial court did not err |
| 4. Constitutionality of § 66-8-102(D)(3) (aggravated DUI for refusing test) | State contends statute valid; public safety justifies implied-consent scheme and sanctions | Penalizing refusal to a warrantless blood draw violates Fourth (unreasonable search) and Birchfield forbids criminal penalties for refusing blood tests | Section 66-8-102(D)(3) unconstitutional as applied to refusal of warrantless blood draw for drugs; aggravated conviction reversed but underlying DUI affirmed |
Key Cases Cited
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (warrantless blood draws cannot be treated as searches incident to arrest; criminalizing refusal to blood test is unconstitutional; breath tests less intrusive)
- Missouri v. McNeely, 133 S. Ct. 1552 (2013) (natural dissipation of alcohol does not create per se exigency; exigency must be assessed case-by-case)
- Schmerber v. California, 384 U.S. 757 (1966) (warrantless blood draw upheld under exigent circumstances in facts of that case)
- South Dakota v. Neville, 459 U.S. 553 (1983) (refusal to submit to chemical test is admissible as physical act and evidence of consciousness of guilt; not protected by Fifth Amendment)
- State v. Vargas, 389 P.3d 1080 (N.M. Ct. App. 2017) (applied Birchfield to reverse aggravated DWI based on blood-test refusal; remand for resentencing on underlying offense)
- McKay v. Davis, 653 P.2d 860 (N.M. 1982) (admission of refusal to take breath test is admissible and relevant as consciousness of guilt)