410 P.3d 256
N.M. Ct. App.2017Background
- Julian Storey was stopped after observed lane deviations; officers smelled burnt marijuana, found a marijuana pipe, and Storey admitted recent marijuana use.
- Deputies administered field sobriety tests; Storey performed poorly on several tests and was arrested for DUI. Breath test was negative for alcohol; Storey refused a blood draw.
- 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; district court affirmed and Storey appealed to the Court of Appeals.
- On appeal Storey raised juror-bias challenges, insufficiency of evidence of DUI, a mistrial claim based on prosecutor comments about the law, and constitutional challenges to NMSA § 66-8-102(D)(3) and prosecutor commentary about his refusal to submit to a warrantless blood draw.
- Applying Birchfield v. North Dakota, the Court held that criminalizing refusal to submit to a warrantless blood draw is unconstitutional as applied to refusals to test for drugs (marijuana), reversed the aggravated-DUI conviction, but affirmed admission of and prosecutorial comment on the refusal as evidence of consciousness of guilt and otherwise affirmed remaining convictions.
Issues
| Issue | State's Argument | Storey's Argument | Held |
|---|---|---|---|
| Trial court erred by denying strikes for cause of three venire members | Prospective jurors’ statements did not show bias; voir dire adequate and defense had peremptory strikes | Jurors expressed fixed views that any drug/alcohol use, however slight, makes driving unsafe, demonstrating bias | No abuse of discretion; trial court did not err because defense failed to probe jurors and did not show the seated jury was biased |
| Sufficiency of evidence for aggravated DUI / DUI | Evidence (odor, pipe, admissions, poor FSTs, erratic driving, refusal to test) proved impairment and refusal element | Driving explained by vehicle defects and road conditions; no blood test proving drugs in system | Substantial evidence supported DUI/aggravated-DUI elements, but aggravated conviction reversed on constitutional grounds; underlying DUI conviction supported |
| Mistrial based on prosecutor’s misstatements of DUI legal standard | Comments were cured by court’s sustained objection, rephrasing, and jury instructions; no prejudice | Prosecutor misstated legal standard for drug-impaired driving and prejudiced jury | No abuse of discretion denying mistrial; errors were corrected or waived and harmless under circumstances |
| Constitutionality of § 66-8-102(D)(3) and prosecutor comment on refusal | State defended statute and use of refusal evidence; argued doctrine/application pre- Birchfield applicable | Criminal punishment for refusing warrantless blood draw infringes Fourth Amendment right against unreasonable searches; prosecutor’s comment penalized assertion of that right | Under Birchfield, cannot criminally punish refusal to submit to a warrantless blood draw (extended to non-alcohol drugs); statute unconstitutional as applied and aggravated conviction reversed; but evidence of refusal and prosecutorial comment admissible as consciousness-of-guilt evidence |
Key Cases Cited
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (warrantless blood tests cannot be sanctioned as search-incident-to-arrest; refusal cannot be criminalized; breath tests distinguishable)
- Missouri v. McNeely, 133 S. Ct. 1552 (2013) (exigency for warrantless blood tests requires case-by-case analysis; states may use implied-consent and use refusal as evidence)
- Schmerber v. California, 384 U.S. 757 (1966) (warrantless blood draw upheld under exigent circumstances in particular facts)
- South Dakota v. Neville, 459 U.S. 553 (1983) (refusal to submit to chemical test is physical act admissible as circumstantial evidence; Fifth Amendment not violated)