STATE OF NEW MEXICO, Plaintiff-Appellee, v. JULIAN STOREY, Defendant-Appellant.
No. A-1-CA-35013
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
September 28, 2017
Opinion Number: 2018-NMCA-009
Certiorari Denied, October 31, 2017, No. S-1-SC-36695
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Brett R. Loveless, District Judge
Santa Fe, NM
John Kloss, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Steven J. Forsberg, Assistant Appellate Defender
Albuquerque, NM
for Appellant
OPINION
BOHNHOFF, Judge.
{1} Julian Storey (Defendant) was arrested in Albuquerque, New Mexico on suspicion of driving under the influence of marijuana. Following a jury trial in Bernalillo County metropolitan court, he was convicted of aggravated driving under the influence of a drug (DUI), possession of drug paraphernalia, and failing to maintain lane. The district court affirmed these convictions. On appeal to this Court, Defendant raises five challenges to the
BACKGROUND
I. New Mexico‘s Impaired Driving Laws
{2}
{3} The New Mexico Implied Consent Act (the Act),
II. Defendant‘s Arrest
{4} Deputy Sarah Young of the Bernalillo County Sheriff‘s Department was on duty during the early morning hours of November 7, 2013. She was traveling westbound on Montano Boulevard in Albuquerque, New Mexico (Montano), in the same direction as a sport utility vehicle (SUV) that was ahead of her and was traveling in the far right lane. The deputy observed the SUV cross over the solid painted lane divider into the right shoulder lane three times. Deputy Young then observed the vehicle move the opposite direction into the far left lane and appear to graze the concrete lane divider. After the SUV turned southbound onto Coors Boulevard, Deputy Young initiated a traffic stop. When she made contact with Defendant, who was the driver of the SUV, the deputy smelled the odor of burnt marijuana coming from the vehicle. Deputy Young then asked Defendant whether there was anything in the vehicle she should be aware of, and Defendant produced a marijuana pipe from the center console. Based on the odor of burnt marijuana, the marijuana pipe, and how Defendant was driving, Deputy Young called dispatch to request a DUI officer. Deputy Johan Jareno responded to the call.
{5} When Deputy Jareno arrived, he was briefed by Deputy Young and then made contact with Defendant. Deputy Jareno also smelled the odor of burnt marijuana coming from the vehicle, and Defendant admitted to Deputy Jareno that he had smoked marijuana “a couple hours” earlier. Deputy Jareno asked Defendant if he would perform standardized field sobriety tests (FSTs) and Defendant agreed. Defendant followed Deputy Jareno‘s instructions for the horizontal gaze nystagmus test, but missed the heel-to-toe twice, turned incorrectly, and used his arms for balance during the walk-and-turn test. Defendant also failed to follow Deputy Jareno‘s instructions during the one-leg stand test, hopping once and failing to look at his foot or keep his hands by his sides.
{6} Deputy Jareno testified that standardized FSTs help a law enforcement officer assess a driver‘s ability to operate a motor vehicle safely, because “the tests are divided attention tests that require multitasking, as does driving.” FSTs are designed to assess a person‘s intoxication regardless of the intoxicating substance. Deputy Jareno had training in Advanced Road Impairment Detection and Enforcement, where he learned how to identify
{7} Following completion of the initial FSTs, Deputy Jareno then decided to give Defendant two alternate tests. For the first test, Deputy Jareno asked Defendant to estimate thirty seconds of time. When Defendant performed this exercise, forty-one seconds actually passed. For the second test, Deputy Jareno asked Defendant to recite the alphabet from J to Y, but Defendant was able to recite the alphabet only between J and P. Based on the results from the standardized FSTs and the two alternate tests, Deputy Jareno concluded that Defendant was not able to safely operate a vehicle and arrested him for DUI.
{8} For Defendant‘s part, he testified that “he did not feel intoxicated and thought he was safe to drive.” He testified that his truck was “beat up” and that he had “blown out” the suspension, causing the truck to sway between the lanes because the road was “very bumpy.” Defendant also testified that he believed his driving was fine and that his vehicle did not strike the barrier. Defendant also denied that the marijuana pipe he turned over to Deputy Young belonged to him.
{9} After Defendant‘s arrest, but while still on the scene, Deputy Jareno read Defendant a scripted advisory statement for implied consent that states:
You are under arrest for driving under the influence of intoxicating liquor and/or drug[s].The New Mexico Implied Consent Advisory [sic] requires you to submit to a breath test, a blood test, or both to determine the alcohol or drug content of your blood. After you take one or both of our tests, you will have the right to choose an additional independent test. . . . Do you agree to take our test or tests—yes or no?
Defendant stated that he understood the advisory and he agreed to be tested. Deputy Jareno transported Defendant to a police station where Defendant was administered a breath test. The test showed negative for alcohol. Deputy Jareno then asked Defendant to submit to a blood test and Defendant refused. Deputy Jareno then stated:
I cannot force you to take our test but if you refuse you will lose your New Mexico driver‘s license or non-resident operating privilege for up to one year. If you are also found guilty in court of driving while under the influence you may receive a greater sentence because you refused to submit to be tested.
Defendant still refused to submit to a blood test.
III. District Court Appeal
{10} The metropolitan court (trial court) jury found Defendant guilty of possession of drug paraphernalia, failure to maintain traffic lane, and aggravated DUI. The trial court entered
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion in Denying Defendant‘s Motion to Strike Jurors for Cause
{11} Defendant‘s jury selection argument focuses on two members of the venire panel, Baker and Romero, who were not selected to serve on the jury, and one, Lucero, who was selected as a juror.
{12} During voir dire, in response to a question from defense counsel (“How many of you think that if you have used drugs or alcohol, no matter in what amount, in just the slightest amount, that you are not okay to drive?“), Baker stated, “I don‘t allow drugs of any sort, even one drink is breaking the law.” Baker spoke only the one time during voir dire. Defense counsel never followed up with Baker to ascertain whether, notwithstanding his incorrect understanding of the law, he still could follow the court‘s instructions and decide the case fairly and impartially.
{13} Later during voir dire, defense counsel asked the following question: “Ms. Lucero? Okay. Let‘s see—how do you feel about . . . the questions regarding whether if you‘ve used any amount of marijuana, whether or not you‘re safe to drive—do you think that‘s the case?” Lucero responded, “Yes it is because it‘s endangering himself and endangering other people.” That response was the only time that Lucero spoke during voir dire. Defense counsel did not follow up with Lucero to ascertain whether she could follow the court‘s instructions and decide the case fairly and impartially.
{14} Defense counsel then asked Romero the following question: “Ms. Romero, I guess the same question to you—what do you think—would somebody who had any amount of marijuana in their system, would they be unable to drive safely?” Romero responded, “Well yeah, they‘d be unable to drive because it‘s illegal to drink and drive.” Similar to Baker and Lucero, defense counsel did not follow up with Romero to ascertain whether she could follow the court‘s instructions and decide the case fairly and impartially. That was the only time she spoke during voir dire.
{16} Defendant argues that the trial court erred in denying his motion to strike Baker, Lucero, and Romero for cause. Defendant asserts that all three stated that, because marijuana is illegal, a driver who uses any amount cannot drive safely. In response, the State argues that Defendant failed to demonstrate how these three panel members were unwilling or unable to decide the case based on the evidence and the trial court‘s instructions. The State also points out that, of the three panel members that Defendant moved to strike, only one, Lucero, actually served on the jury.
{17} “Trial courts . . . are given broad discretion in overseeing the voir dire process. . . . The trial court, who is listening first hand to counsel‘s questions and the panel members’ responses, is in the best position to determine whether voir dire has sufficiently exposed any biases that may preclude jurors from acting fairly and impartially.” State v. Martinez, 2002-NMCA-036, ¶¶ 31, 35, 131 N.M. 746, 42 P.3d 851. “In general, we review the trial court‘s rulings regarding the selection of jurors for an abuse of discretion because the trial court is in the best position to assess a juror‘s state of mind, based upon the juror‘s demeanor and credibility.” State v. Allen, 2000-NMSC-002, ¶ 83, 128 N.M. 482, 994 P.2d 728 (internal quotation marks and citation omitted). Further, and crucially, “[the d]efendant cannot prevail on appeal unless he demonstrates that the jurors finally selected were biased or prejudiced.” State v. Gardner, 2003-NMCA-107, ¶ 16, 134 N.M. 294, 76 P.3d 47.
{18} In State v. Rackley, 2000-NMCA-027, 128 N.M. 761, 998 P.2d 1212, the defendant was convicted of multiple crimes in connection with a robbery. On appeal, he challenged the trial court‘s refusal to excuse for cause three members of the venire panel based on the fact that, during voir dire, two of the panel members commented generally about the defendant‘s decision to not testify and the third commented about the defendant‘s status as a convicted felon. Id. ¶¶ 10, 12. This Court noted that these comments implicated rules regarding the presumption of innocence, the privilege not to testify, and the rules of evidence limiting character and propensity evidence. Id. ¶¶ 11-12. This Court then observed that
[the d]efendant is trying to convert a juror‘s admission of a layperson‘s natural response into prima facie evidence of impermissible bias. Evidentiary rules restricting the use of propensity evidence reflect a judgment that the probative value of such evidence is outweighed by unfair prejudice, confusion, and waste of time. Although these rules and the policies they represent may be known to and accepted by lawyers, they are not necessarily familiar to non-lawyers, who routinely rely on information about a person‘s past behavior in making social and business judgments. The fact that a juror is unaware at the outset of a criminal trial of the complicated scheme
regulating the use of collateral offenses/character evidence is not at all surprising and should not, of itself, give rise to a presumption that a juror is incapable of following the trial court‘s instructions on the proper uses of evidence of collateral offenses. Indeed, the very purpose of instructions is to educate jurors about the applicable law.
Id. ¶ 12 (citations omitted). This Court concluded that, with respect to all three panel members, the defendant failed to demonstrate that any of the three panel members was “biased or otherwise incapable of deciding [the] case on the facts established at trial and the trial court‘s instructions on the law.” Id.
{19} Defendant‘s jury selection argument herein can be resolved on similar grounds. The three panel members in question simply expressed their layperson views about the physiological effects of marijuana and/or the law governing driving under the influence of drugs. Defense counsel did not follow up on those questions and inquire whether they could and would follow the trial court‘s instructions on the law and decide the case on the basis of the testimony and exhibits that were introduced into evidence. In the absence of that information, we decline to speculate about whether any of the three members would not have obeyed the trial court‘s instructions and instead would have decided the case on the basis of their layperson views or any actual biases. We therefore conclude that the trial court did not abuse its discretion during jury selection.
II. Section 66-8-102(D)(3) Is Unconstitutional as Applied to a Motorist‘s Refusal to Submit to a Blood Test
{20} Citing Birchfield, Defendant argues that in aggravating the sanction for driving under the influence of marijuana based on his refusal to consent to a blood test, the State is punishing him for invoking his constitutional right to be free from warrantless searches of his person. He urges that the aggravated DUI charge therefore must be reversed.
A. Standard of Review
{21} “The legality of a search . . . ultimately turns on the question of reasonableness.” State v. Ryon, 2005-NMSC-005, ¶ 11, 137 N.M. 174, 108 P.3d 1032. While this “inquiry is necessarily fact-based it compels a careful balancing of constitutional values, which extends beyond fact-finding,” and is therefore subject to de novo review. State v. Rowell, 2008-NMSC-041, ¶ 8, 144 N.M. 371, 188 P.3d 95 (internal quotation marks and citation omitted). The constitutionality of a statute is reviewed de novo as well. See Rodriquez v. Brand West Dairy, 2016-NMSC-029, ¶ 10, 378 P.3d 13.
B. Preservation of Error
{22} The State contends that, because he did not raise it below, Defendant waived his
C. Fourth Amendment Principles Applicable to Blood Testing for Impaired Driving
{23} The
{24} Drawing an individual‘s breath or blood for purposes of testing for alcohol content constitutes a search within the meaning of the
D. Birchfield and Vargas
{25} Birchfield considered whether the search incident to arrest exception was applicable to both breath and blood alcohol testing. After reviewing the exception‘s history, the United States Supreme Court began its analysis by observing that, when there is a lack of guidance from the founding era, “we generally determine whether to exempt [on the basis of the search incident to arrest doctrine] a given type of search from the warrant requirement by assessing, on the one hand, the degree to which it intrudes upon an individual‘s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” 136 S. Ct. at 2176 (internal quotation marks and citation omitted). The Court reasoned that while breath tests do not implicate significant privacy concerns, blood tests are a different matter because “[t]hey require piercing the skin and extract a part of the subject‘s body . . . the process is not one [many people] relish. It is significantly more intrusive than blowing into a tube.” Id. at 2178 (internal quotation marks and citation omitted). Blood tests are also different from breath tests because a blood test “places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple [blood alcohol content (BAC)] reading.” Id. at 2178.
{26} The Court then assessed the government‘s interest in BAT. The Court acknowledged that laws that make it a crime to refuse to submit to alcohol testing via breath and blood tests “serve a very important function.” Id. at 2179. However, because the search incident to arrest doctrine is categorical, as opposed to the exigency exception to the warrant requirement, which, McNeely teaches, requires a case-by-case analysis, the
{27} Lastly, the Birchfield Court considered but rejected the argument that warrantless blood draws could be justified under the
{28} In Vargas, this Court applied Birchfield‘s holding to a conviction for aggravated DWI of a motorist who refused to consent to a blood test after being arrested for driving under the influence of alcohol: “[The d]efendant‘s refusal to submit to the search cannot be the basis for aggravating [the DWI] sentence.” Vargas, 2017-NMCA-023, ¶ 25. We reversed
E. Applying Birchfield to Defendant‘s Conviction for Aggravated Driving Under the Influence of Marijuana
{29} Notwithstanding its reliance on the availability of breath alcohol testing as one of the key reasons for its conclusion that blood alcohol testing did not merit a per se search incident to arrest exception to the warrant requirement, the Court in Birchfield declined to recognize such an exception for warrantless blood testing where a driver is arrested on suspicion of driving while under the influence of substances for which a breath test is not available:
One advantage of blood tests is their ability to detect not just alcohol but also other substances that can impair a driver‘s ability to operate a car safely. A breath test cannot do this, but police have other measures at their disposal when they have reason to believe that a motorist may be under the influence of some other substance (for example, if a breath test indicates that a clearly impaired motorist has little if any alcohol in his blood). Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not.
136 S. Ct. at 2184 (citation omitted). Thus, the United States Supreme Court appears to have foreclosed any argument that a warrantless blood test for a drug other than alcohol, such as marijuana, can be justified under the search incident to arrest exception.
{30} The State argues that Birchfield‘s holding should not be applied retroactively, but the rule is to the contrary. “[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final[.]” Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (eliminating retroactive application exception “for cases in which the new rule constitutes a ‘clear break’ with the past“); see United States v. Johnson, 457 U.S. 537, 562 (1982) (holding that “a decision of [the United State Supreme] Court construing the
{31} The State also argues that, because Defendant did not assert the unconstitutionality of the aggravated DUI charge until after his conviction and pending the appeal, the State had “no occasion to present evidence or argument below as to whether concerns over the loss of evidence due to the metabolization of marijuana, exigent circumstances generally, or some other case-specific information could have provided an alternative basis on which to justify a warrantless test of [Defendant‘s] blood.” Under the Act, a law enforcement agency may not, without a warrant, force a driver to undergo a blood test. See
{32} As stated above,
III. Birchfield Does Not Invalidate the Introduction of Evidence of a Defendant‘s Refusal to Submit to a Blood Chemical Test
{33} During his opening statement, defense counsel asserted, “They‘re not going to be able to show you that he has any actual marijuana in his system because aside from this pipe that [Defendant] turned over to them, they really have no evidence that he had been using marijuana while driving or that he was under the influence of marijuana while driving. They don‘t have a blood test, [Defendant] refused to take one, but they have no actual proof that he ha[d] marijuana in his system, and this isn‘t necessarily—well, we‘re gonna see some evidence about, perhaps, why he refused and we think that when you see it, you will conclude that he‘s not refusing in order to evade detection of drugs in his system.”
{34} During his initial closing argument, the prosecutor commented on Defendant‘s refusal: “[D]efendant refused because he was afraid of the results.” Defense counsel immediately objected, and the parties approached the bench for a side bar conference. Defense counsel argued that the prosecutor‘s statement called for speculation. Both the prosecutor and the judge pointed out that the prosecutor‘s statement concerned consciousness of guilt, and the judge overruled the objection. The prosecutor continued, stating: “It was [D]efendant‘s fear that drove him to refuse that [testing].” Later, at the end of his initial closing argument, the prosecutor stated:
Defense counsel did not object to this statement.
{35} During his rebuttal following defense counsel‘s closing argument, the prosecutor stated, “He was honest, so there should be some other reason as to why he would refuse the test. . . . Ladies and Gentlemen, yes, he was honest with you, and handed the pipe over, admitted to smoking—until he was arrested for [DUI]. . . . Until there‘s the very real probability that the blood needle goes into his arm and he gets tested and there is no doubt that he is under the influence.” Defense counsel then objected, and the parties approached the bench for a sidebar conference. Defense moved for a mistrial. The trial judge denied the motion, but stated, “I am concerned about saying sticking the needle in his arm that would have proven beyond—that would have proven he was guilty, because he can‘t prove that, that‘s purely speculation, so I‘ll sustain the objection to that, and I think you need to withdraw that statement.” The prosecutor then continued his rebuttal, stating, “Ladies and Gentlemen, counsel has pointed out that I made a bit of a misstatement there. Just because he had his blood drawn wouldn‘t have removed all doubt. The State still would have to produce that evidence in court. But [D]efendant was afraid of it.” Defense counsel did not object to this statement.
{36} Based on Birchfield, and reasoning that he should not be penalized for asserting his
A. Birchfield and Its Predecessors
{37} As mentioned above, Neville addressed the constitutionality of a South Dakota law that expressly permitted the introduction of evidence of a motorist‘s refusal to consent to a BAT. South Dakota courts had concluded that the statute violated the federal constitutional privilege against self-incrimination on the theory that introducing evidence of refusal to consent to a blood test was analogous to introducing evidence of a criminal defendant‘s refusal to testify. The United States Supreme Court disagreed. The Court noted that most state courts that had considered the question had concluded that refusal to submit is a physical act rather than a communication, and therefore not encompassed by the privilege. Instead, “evidence of refusal to take a potentially incriminating test is similar to other
{38} The Court did not address in Neville whether the admission of evidence of refusal to consent to a blood test infringed on a defendant‘s
States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 [s]tates have adopted implied . . . consent to BAC testing if [motorists] are arrested or otherwise detained on suspicion of a drunk-driving offense. Such laws impose significant consequences when a motorist withdraws consent; typically the motorist‘s driver‘s license is immediately suspended or revoked, and most [s]tates allow the motorist‘s refusal to take a BAC test to be used as evidence against [them] in a subsequent criminal prosecution.
133 S. Ct. at 1566 (emphasis added) (internal quotation marks and citation omitted).
{39} Second, in Birchfield, and relying in part on the aforementioned language in McNeely, the United States Supreme Court spoke to the question in the context of distinguishing between criminalizing the refusal to take a BAT (which it deemed unconstitutional as a proposed exception under the consent doctrine) and using that refusal as evidence of consciousness of guilt on the underlying driving while intoxicated offense (which it signaled is constitutional):
Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them. It is another matter, however, for a [s]tate not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.
B. New Mexico Precedent
{40} Independent of the United States Supreme Court‘s application of the
{41} We conclude on the basis of the foregoing federal and New Mexico precedent that the prosecutor‘s commentary on Defendant‘s refusal to consent to a blood test did not violate his constitutional rights under the
C. Defendant Opened the Door
{42} In his opening statement, defense counsel raised the issue of Defendant‘s refusal to consent to the blood test. However, Defendant did not present any evidence at trial to follow-
{43} Birchfield does not prohibit the introduction of evidence of, and commentary on, evidence establishing a defendant‘s refusal to take a blood test. The trial court therefore did not err, fundamentally or otherwise, in allowing the prosecutor‘s comments during closing argument regarding Defendant‘s refusal to take a blood test. But we also cannot ignore the defense counsel‘s comment to the jury during opening statements—that there was some explanation other than consciousness of guilt for Defendant‘s refusal to consent to a blood test. A court is “least likely to find [fundamental] error where the defense has opened the door to the prosecutor‘s comments by its own argument or reference to facts not in evidence.” State v. Sosa, 2009-NMSC-056, ¶ 33, 147 N.M. 351, 223 P.3d 348 (internal quotation marks and citation omitted); cf. State v. Smith, 2001-NMSC-004, ¶ 5, 130 N.M. 117, 19 P.3d 254 (noting, in a murder trial, that defense counsel stated during opening that the defendant remained in the vehicle and did not participate in the killing; declining to reverse conviction based on the prosecutor‘s comment on lack of testimony to bear out counsel‘s representation, since the defense invited the argument). “That the prosecutor can refer to the defendant‘s failure to testify if the door is opened by the defense, is well supported by case law.” State v. Ruffino, 1980-NMSC-072, ¶ 9, 94 N.M. 500, 612 P.2d 1311. Defense counsel‘s comment on Defendant‘s refusal to consent in his opening statement constitutes independent grounds for rejecting Defendant‘s complaint about the prosecutor‘s comments during closing argument.
IV. Sufficient Evidence Supported Defendant‘s Conviction for Aggravated DUI
{44} Defendant contends that the evidence presented at trial was insufficient to establish each of the elements of aggravated DUI beyond a reasonable doubt. Defendant maintains that, while he wasn‘t driving “perfectly,” the fact that Deputy Young followed him for two miles indicated that he was capable of driving safely, and that his performance on the FSTs was “quite good[.]”
{45} “The test to determine the sufficiency of evidence in New Mexico is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Montoya, 2015-NMSC-010, ¶ 53, 345 P.3d 1056 (alteration, omission, internal quotation marks, and citation omitted). “[T]his test involves two separate parts. First, a reviewing court must view the evidence in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict. Second, an appellate court determines whether the evidence, viewed in this manner, could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.” State v. Graham, 2005-NMSC-004, ¶ 6, 137 N.M. 197, 109 P.3d 285 (alteration, emphases, internal quotation marks, and citations omitted). “[S]ubstantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[.]” State v Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation omitted). “[W]hen there is a conflict in the testimony, we defer to the trier of fact.” Buckingham v. Ryan, 1998-NMCA-012, ¶ 10, 124 N.M. 498, 953 P.2d 33. Thus, “[c]ontrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject [the d]efendant‘s version of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.
{46}
{47} First, the State presented substantial evidence that Defendant was under the influence of a drug. Both Deputy Young and Deputy Jareno smelled burnt marijuana emitting from Defendant‘s vehicle. Defendant produced a marijuana pipe from his vehicle and gave it to Deputy Young. Defendant admitted to Deputy Jareno that he had smoked marijuana, and the jury was free to reject his claim that he had done so a “couple hours” before operating his vehicle and that the pipe belonged to someone else.
{48} Second, the State presented substantial evidence that Defendant was incapable of safely driving a vehicle. Deputy Young followed Defendant and observed that he could not maintain his lane of traffic on Montano, swerving multiple times onto the right shoulder and then to the left and possibly grazing the concrete lane divider. Defendant failed the standardized FSTs. The FSTs, as well as Defendant‘s additional testimony that mechanical problems and the “bumpiness” of Montano caused his vehicle to swerve, all address the credibility and weight of the State‘s evidence, factual issues that are left to the jury to resolve. See Rojo, 1999-NMSC-001, ¶ 19 (recognizing that under the proper standard of review, appellate courts cannot apply the conflicting evidence offered by a defendant that might have supported an acquittal).
{49} Regarding the third and fourth elements of DUI, Defendant did not dispute that he was operating his vehicle in New Mexico and that he refused to consent to take a blood test. Thus, the State presented substantial evidence at trial to support the jury verdict of guilt beyond a reasonable doubt with respect to each element of aggravated DUI. While we have concluded that Defendant‘s conviction of the aggravated DUI was unconstitutional under United States Supreme Court precedent and therefore must be reversed, it nevertheless follows that sufficient evidence would support his conviction of the lesser DUI charge, which Defendant in fact argues in his brief in chief.
V. The Trial Court Did Not Abuse Its Discretion in Denying Defendant‘s Motion for Mistrial Based on the Prosecutor‘s Comments About the Legal Standard for Driving Under the Influence of Drugs
{51} “Since the granting of a mistrial is discretionary with the trial court, we will not disturb the decision on appeal absent an abuse of discretion.” State v. Sutphin, 1988-NMSC-031, ¶ 18, 107 N.M. 126, 753 P.2d 1314. “Moreover, the power to declare a mistrial should be exercised with the greatest caution.” Id. “The trial judge is in a much better position to know whether a miscarriage of justice has taken place and his opinion is entitled to great weight in the absence of a clearly erroneous decision.” Id. (internal quotation marks and citation omitted). “An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case.” Id.
A. Venire Panel Member Pilcher‘s and the Prosecutor‘s Comments About the Legal Standard for DUI During Jury Selection
{52} During voir dire, and in response to the same general question that defense counsel asked other panel members about whether the use of any amount of alcohol or marijuana would impair one‘s ability to drive, Pilcher gave the following extended response:
[W]ell, according to as far as alcohol is concerned, the law states as to [0.08] percent [0.16] percent . . . alcohol in your bloodstream, that that is automatic infraction. It also says that even if you do not have that level of alcohol in your blood, that it is by level of “impairment.” So the level of impairment is really what they go on. It‘s not, even if you are under the legal amount, if you cannot drive safely, then you shouldn‘t be driving. Um, after that it goes for alcohol and tobacco—or not tobacco—but, . . . marijuana or any other impairing substances, even medicated, prescribed drugs . . . affect how you can function behind the wheel of a car. And if you have anything that impairs your ability to drive, you shouldn‘t be driving. And that‘s different for different people. Some people can probably down a couple of beers and be functioning behind the wheel of a car, but other people probably have half a beer and not be able to function. So really it‘s level of function and then whatever the legal standard is of . . . allowed substance in the bloodstream.
. . . .
I believe that no one should be drinking or doing alcohol or drugs anyway, but that‘s—if it‘s legal, then they can do it. But, I don‘t believe if they are under the influence . . . that they should be driving.
. . . .
[To determine whether somebody is unable to drive,] I would need to know . . . how much alcohol is in their bloodstream and I would need to know if they have passed or failed the . . . sobriety tests—the coordination. So if the officer is of [the opinion] that they had passed within satisfactory measures, then I would be okay with that. But if they— had shown that they had not passed the . . . coordination the other tests that the officer‘s conduct, then as far as I‘m concerned, he‘s impaired.
B. The Prosecutor‘s Comments During Closing Argument on the Legal Standard for DUI
{54} During the State‘s closing argument, the prosecutor distinguished the correct standard for DUI with drugs (incapable of safely driving a vehicle (
C. The Trial Court Did Not Abuse Its Discretion in Denying a Mistrial
{55} Defendant insists that the trial court “abused its discretion in refusing to grant a mistrial in the face of the prosecution‘s continuing efforts to mislead the jury with misstatement and misapplication of the law.” We disagree.
{57} Second, after the prosecutor stated in closing argument that, “Any impairment by a drug renders you incapable of operating a vehicle,” the trial court sustained defense counsel‘s objection, characterized the prosecutor‘s statement as “a misstatement of the law” and told the prosecutor to rephrase his statement. We cannot say that these actions by the trial court, together with the definition of the offense contained in the instructions that the jury ultimately received and to which Defendant does not object, did not eliminate any prejudice that Defendant otherwise might have suffered.
{58} Further, following the trial court‘s instruction to rephrase his statement, the prosecutor stated: “[D]efendant was impaired by marijuana, and there‘s plenty of evidence to support that. And any impairment, the smallest impairment by an intoxicating drug makes you unsafe. Half a second difference is unsafe. Six seconds, six seconds is way unsafe. Not even noticing that you‘ve grazed a barrier because you‘re high is unsafe.” Defense counsel did not object to this rephrasing.
{59} The emphasized language essentially repeats the prosecutor‘s previous misstatement of the law. But he then blunted any impact of the error by equating “impairment” to the evidence of Defendant‘s unsafe driving as opposed to his mental state. We note as well that, prior to making this comment, the prosecutor himself had articulated the difference in the legal standards for driving under the influence of alcohol versus drugs. Consequently, we view the error as harmless under the circumstances. But in any event, defense counsel failed to object, and therefore waived the error.3
{60} Third, Defendant suggests that the lengthy statement of venire panel member Pilcher had already tainted the jury‘s collective thinking and predisposed them to apply an incorrect legal standard for establishing driving under the influence of a drug. This amounts to speculation. There is no evidence that the jury members did not follow the trial court‘s instructions regarding this standard and that the jury generally must follow its instructions. The trial court is given, and must exercise, considerable discretion in evaluating the propriety of argument and in curing any alleged defects. The trial court denied Defendant‘s motion for new trial, stating that the prosecutor‘s comments had not deprived Defendant of a fair trial. “We believe that the court acted within the proper bounds of its discretion, and we will not reverse a decision denying a new trial on such a record.” State v. Sellers, 1994-NMCA-053, ¶ 31, 117 N.M. 644, 875 P.2d 400. Based on the foregoing, we conclude that the trial court did not abuse its discretion in denying Defendant‘s motion for mistrial.
CONCLUSION
{62} We reverse Defendant‘s conviction for the aggravated portion of his DUI and affirm his conviction for DUI without any aggravation resulting from his refusal to submit to a blood test. We otherwise affirm Defendant‘s remaining convictions, and remand to the metropolitan court for entry of judgment and sentencing consistent with this opinion.
{63} IT IS SO ORDERED.
HENRY M. BOHNHOFF, Judge
I CONCUR:
TIMOTHY L. GARCIA, Judge
ZAMORA, Judge (specially concurring).
{64} I concur in the majority opinion but write separately to express my concerns with inconsistencies in our conclusions in Sections II and III of the majority‘s analysis. Majority Op. ¶¶ 20-41. With the advent of Birchfield, these conclusions generate inconsistencies. 136 S. Ct. 2160. While on one hand we are concluding that Defendant has the
{65} While the majority cites to federal and state precedent in support of the use of Defendant‘s refusal to consent to a blood test to prove his consciousness of guilt, I did not see a principled analysis that resolves these inconsistencies. Nonetheless, our courts have spoken. See Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 33, 125 N.M. 721, 965 P.2d 305 (“Stare decisis is the judicial obligation to follow precedent, and it lies at the very core of the judicial process of interpreting and announcing law.“). Birchfield, Vargas, and now this case have laid the ground work that may require a look to the
M. MONICA ZAMORA, Judge