Lead Opinion
OPINION
{1} Defendant, Roberto Sanchez, appeals from the judgment and sentence of the trial court for aggravated driving while under the influence of alcohol (DWI), pursuant to NMSA 1978, Section 66-8-102(D)(3) (1999). On appeal, Defendant raises four issues. Defendant argues that (1) there was insufficient probable cause to arrest him for DWI, (2) there was insufficient evidence to support his conviction for aggravated DWI, (3) statements made to the arresting officer should have been suppressed for failure to advise Defendant of his Miranda rights, and (4) the trial court erred by not appointing new counsel for Defendant at trial. Not persuaded by Defendant’s arguments, we affirm.
BACKGROUND
{2} Defendant approached a DWI roadblock on August 22, 1999. Officer Massis was one of the officers working the roadblock. Officer Massis approached Defendant’s vehicle, after Defendant had stopped at the roadblock, and asked Defendant for his driver’s license, registration and proof of insurance. Instead of a driver’s license, Defendant gave Officer Massis a New Mexico identification card. Further questioning by the officer revealed that Defendant was driving with a revoked license. While talking to Defendant, Officer Massis noticed that Defendant had a strong odor of alcohol on his breath, and blood-shot, watery eyes. According to the officer’s testimony, when asked if he had been drinking, Defendant responded that he had consumed two beers that night. At this point, Officer Massis told Defendant to pull over to the side of the road and get out of the car so that he could administer the field sobriety testing. The officer told Defendant to move to the front of his patrol car so that the tests could be videotaped. The videotape, which was admitted into evidence, shows that Defendant flatly refused to consent to the field sobriety testing saying, “I am not going to do nothing. Let’s go to jail.” It is also clear, from the videotape, that Defendant was wearing a leg brace at the time. After Defendant refused to consent to the field sobriety testing, Officer Massis placed him under arrest for DWI, and for driving with a revoked license. Defendant offered no explanation for refusing to take the field sobriety tests, and only alluded to having a knee problem later, after the officers had performed a pat-down and were in the process of helping Defendant into the patrol car.
{3} At trial, Officer Massis testified that, prior to Defendant’s réfusal to consent to the field sobriety testing, he thought there was reasonable suspicion, but not probable cause, to conclude that Defendant was guilty of DWI. When asked what brought him to the point of determining that he did have probable cause to arrest Defendant, the officer testified, “because [Defendant] refused to do my field sobriety tests.” After Defendant refused to perform field sobriety tests, Officer Massis placed him under arrest, read him the Implied Consent Act, and asked him if he would take a blood test. See NMSA 1978, §§ 66-8-105 to -112 (as amended through 1993). Defendant also refused to consent to a blood test.
{4} At a bench trial, Defendant testified that he told Officer Massis that he would not take the field sobriety testing because of his bad knee. However, the videotape does not show Defendant offering any such explanation. At trial, Defendant could not explain why that alleged portion of the conversation was not on the videotape. The trial judge ruled that the videotape had not been altered, and found that Officer Massis had probable cause to question and detain Defendant based on his observations. Additionally, the trial judge found that Defendant’s refusal to take the field sobriety testing could indicate a consciousness of guilt, and that Defendant’s refusal, combined with the other factors observed by the officer, justified Defendant’s arrest. Ultimately, the trial court convicted Defendant of aggravated DWI under Section 66-8-102(D)(3), as well as driving with a revoked license.
DISCUSSION
Officer Massis Had Probable Cause to Arrest Defendant For DWI
{5} Defendant contends that Officer Massis lacked probable cause to arrest him for DWI because Defendant did not exhibit signs of impaired driving. At trial, Officer Massis conceded that Defendant was not driving improperly, and that Defendant would not have been stopped, if not for the roadblock. Defendant places great emphasis on the officer’s testimony that, until Defendant refused to perform the field sobriety testing, Officer Massis felt that he had no more than reasonable suspicion that Defendant might be driving under the influence. Defendant argues that his refusal to perform the field sobriety testing, without any direct evidence of impaired driving, did not rise to the level of probable cause. We disagree that the officer needed to observe Defendant driving, and conclude that Officer Massis had probable cause for an arrest, based on everything the officer observed about Defendant.
{6} A police officer has probable cause when facts and circumstances within the officer’s knowledge, or about which the officer has reasonably trustworthy information, are sufficient to warrant an officer of reasonable caution to believe that an offense is being committed or has been committed. State v. Salas,
{7} In this case, Officer Massis needed to have knowledge of facts sufficient to allow him, or an objectively reasonable officer in his position, to conclude that Defendant had been driving while he was “to the slightest degree” unable to exercise the clear judgment and steady hand necessary to handle a vehicle in a safe manner. The State does not argue for a general principle that refusal to perform the field sobriety testing, standing alone, constitutes probable cause for an arrest. However, the State does argue that such a refusal can be considered, in combination with other factors, to constitute probable cause.
{8} In the case before us, Officer Massis had information other than Defendant’s refusal to submit to the field sobriety testing. The officer observed that Defendant smelled strongly of alcohol, and had blood-shot, watery eyes. According to the officer’s testimony, Defendant had admitted to drinking two beers that night. An objectively reasonable officer could take all of these factors into account in determining whether there was probable cause to make an arrest.
{9} The State can use evidence of a driver’s refusal to consent to the field sobriety testing to create an inference of the driver’s consciousness of guilt. McKay v. Davis,
{10} Defendant attempts to rebut that inference with evidence of his leg brace. He argues that the officer should have known that there was a plausible explanation, other than consciousness of guilt, for Defendant’s refusal to perform the field sobriety testing. However, the court was entitled to find, as an issue of fact, that Defendant made no attempt to explain his refusal by referring to the leg brace or to any problems with his knees. The court was not required to conclude that the officer should have attributed Defendant’s refusal to the leg brace when Defendant failed to articulate a rationale for refusing to take field sobriety tests.
{11} Defendant relies on the officer’s testimony that he erroneously believed that Defendant’s refusal to perform the field sobriety testing violated the Implied Consent Act. See § 66-8-107(A) (providing that drivers shall be deemed to have given consent to blood or breath testing). We are not persuaded by Defendant’s argument. It is irrelevant that this particular officer may have been confused about the requirements of the Implied Consent Act. Probable cause is an objective test based on whether “an officer of reasonable caution [would] believe that an offense is occurring.” Salas,
{12} Defendant also relies on certain New Mexico cases in which the evidence of probable cause showed more direct or circumstantial evidence of actual impairment than the State may have demonstrated in Defendant’s case. See, e.g., Jones,
The Verdict of Aggravated DWI is Supported by Substantial Evidence
{13} Because the State presented no direct evidence of impaired driving, Defendant argues that the State lacked sufficient evidence to support a verdict of aggravated DWI beyond a reasonable doubt. Section 66-8-102(D)(3) states:
Aggravated driving while under the influence of intoxicating liquor ... consists of a person who:
(3) refused to submit to chemical testing, as provided for in the Implied Consent Act [66-8-105 to 66-8-112 NMSA 1978], and in the judgment of the court, based upon evidence of intoxication presented to the court, was under the influence of intoxicating liquor____
There is no dispute that Defendant “refused to submit to chemical testing.” Thus, the sole question is whether substantial evidence supports the trial court’s conclusion that Defendant “was [driving] under the influence of intoxicating liquor.”
{14} In reviewing a claim of insufficient evidence, we must determine whether there is substantial evidence of either a direct or a circumstantial nature to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to conviction. State v. Sutphin,
{15} As we have seen, the trial court had before it Officer Massis’ observations of Defendant’s behavior and appearance, coupled with Defendant’s unexplained refusal to perform field sobriety tests and his unusual demand to be taken to jail instead. The officer had evidence that Defendant had been drinking, including the odor of alcohol, bloodshot, watery eyes, and Defendant’s own admission. The Court also viewed the videotape and found Defendant’s statements and demeanor to be consistent with a person who was under the influence of alcohol. The trial judge characterized Defendant as “babbling” on the videotape, which could lead the court to infer that Defendant was intoxicated. The trial judge heard Officer Massis testify that, upon being placed in the patrol ear, Defendant began kicking the ear, which required the police to place restraints on his ankles to prevent him from hurting himself.
{16} Defendant argues that, while this evidence may be probative of Defendant’s drinking, it is not probative of him being impaired or driving while impaired. Defendant maintains that there was no evidence beyond a reasonable doubt that Defendant’s drinking actually affected his driving. We disagree. Although the evidence to support a conviction for DWI is marginal at best, we do not agree that the evidence is insufficient as a matter of law.
{17} Defendant came to a stop only moments before he began talking with Officer Massis and Officer Massis began observing his behavior, the same behavior viewed by the court on the videotape. As the finder of fact, the trial court could reasonably have concluded that behavior exhibited by Defendant on the videotape, and described by Officer Massis, were indicative of Defendant’s condition and behavior only moments before, while he was driving. This evidence, including reasonable inferences therefrom, could have reasonably persuaded the trial court that Defendant was less able “to the slightest degree ... to exercise the clear judgment ... necessary to handle a vehicle.” UJI144501(2).
{18} Defendant cites to Territory v. Lucero,
{19} As previously discussed, the trial court had before it more than just a negative inference of guilt equivalent to fleeing the scene of a crime. If the evidence in this case were confined to Defendant’s refusal to perform the field sobriety testing, the principle for which Lucero is cited might be appropriate. However, as we have seen, there was far more here than a mere inference of consciousness of guilt. Considered in conjunction with these other pieces of evidence, that inference was probative of Defendant’s guilt.
The Trial Court Did Not Err in Denying Defendant’s Motion to Suppress His Statements at the Roadblock
{20} Officer Massis testified that once a driver is under suspicion, he holds them until he can determine through a computer check whether that driver has a valid driver’s license. This process can take up to ten minutes. Officer Massis admitted that Defendant was not free to leave while he was running the computer check.
{21} Defendant argues that the officer should have advised Defendant of his constitutional rights under Miranda v. Arizona,
{22} Defendant’s argument is contrary to established precedent. “The roadside questioning of a motorist pursuant to a routine traffic stop does not constitute custodial interrogation.” See Armijo v. State ex rel. Tramp. Dep’t,
The Trial Court Did Not Err When It Refused Defendant’s Motion to Appoint New Trial Counsel
{23} Defendant was unsatisfied with the legal representation he received from appointed counsel. Defendant claims that defense counsel did not fully investigate the possibility of evidence tampering in regard to the videotape that was admitted into evidence. Before trial, defense counsel made a motion to have the court appoint new counsel. The trial court questioned Officer Mas-sis about the videotape and inquired into the possibility of tampering. The court asked Officer Massis where he kept the videotape, and who had access to it. Being satisfied with the answers provided by Officer Massis, and concluding that the videotape had not been altered, the trial court denied Defendant’s motion.
{24} In State v. Hernandez,
CONCLUSION
{25} For the reasons stated above, we affirm Defendant’s conviction for aggravated DWI.
{26} IT IS SO ORDERED.
Concurrence Opinion
(special concurrence).
{27} I do not find comfort in Davis, which holds that a defendant’s refusal to submit to a field sobriety test gives rise to an inference that the defendant has a guilty conscience. I am convinced that there are other valid inferences, including that of innocence, fear of police, apprehension, and confusion that are equally reasonable, logical and realistic.
{28} Furthermore, the line of cases supporting the “reasonable officer” standard for probable cause, as opposed to allowing the testimony of the officer on the scene to govern what constitutes probable cause for arrest, may be distinguishable. Almost all of those cases deal with a police officer who testifies that he did have probable cause to arrest. Here, the officer testified that he did not believe he had probable cause, and that is what sparked the controversy.
{29} In this case there is enough evidence to find the Defendant not guilty. The problem with such a conclusion is that we would be substituting our own judgment for that of the trial judge, and that is not our job. We must resist the temptation to re-weigh the evidence on appeal. In this case, the temptation is great because the officer at the scene testified, on cross-examination by defense counsel, that he did not find probable cause for arrest until the Defendant refused to take the field sobriety test. If this testimony stood throughout the trial, I could not concur in the majority decision to affirm. However, the trial judge asked the officer what circumstances led him to believe that he had probable cause. At that time, the officer stated that it was not just the Defendant’s refusal to take the field sobriety test, but also the fact that the Defendant had watery, bloodshot eyes and an odor of alcohol on his breath. This testimony provides substantial evidence supporting the arrest and later the trial court’s finding of guilt. •
{30} I, therefore, concur.