STATE OF NEW MEXICO, Plаintiff-Appellee, v. LARESSA VARGAS, Defendant-Appellant.
NO. 33,718
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
OCTOBER 25, 2016
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY. Hector H. Balderas, Attorney General, Santa Fe, NM; Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee. Bennett J. Baur, Chief Public Defender, Santa Fe, NM; Vicki W. Zelle, Assistant Appellate Defender, Albuquerque, NM, for Appellant.
OPINION
ZAMORA, Judge.
{1} Defendant Laressa Vargas apрealed her conviction in the metropolitan court (trial court) for aggravated driving while intoxicated (DWI), contrary to
{2} We conclude that sufficient evidence supported the trial court‘s finding thаt Defendant was driving under the influence of intoxicating liquor and was impaired to the slightest degree. However, in light of the United States Supreme Court‘s recent holding in Birchfield v. North Dakota, __U.S.__, 136 S. Ct. 2160 (2016), we conclude that Defendant may not be held criminally liable for refusing to submit to a warrantless blood test based on implied consent. Id. at 2185-86. We affirm in part, reverse in part, and remand.
I. BACKGROUND
{3} On April 23, 2011, the Bernalillo County Sheriff‘s Office conducted a sobriety checkpoint. Deputy Patrick Rael of the Bernalillo County Sheriff‘s Office was working the checkpoint and observed Defendant‘s vehicle, which was stopped approximately 15 to 20 yards in advance of the checkpoint. Deputy Rael signaled to Defendant to pull forward. Defendant rоlled down her window and said, “Good afternoon,” which Deputy Rael found odd since it was approximately 1:00 a.m. Deputy Rael noticed the odor of alcohol coming from the vehicle and from Defendant. Deputy Rael also noticed that Defendant appeared nervous and confused, and that her eyes wеre bloodshot and watery. During their initial contact, Defendant denied consuming alcohol.
{4} Deputy Rael requested that Defendant perform field sobriety tests (FSTs) and Defendant agreed. With Defendant outside of the vehicle, Deputy Rael continued to smell alcohol coming from Defendant‘s person. Defendant performed poorly on each of the FSTs. Deputy Rael believed that Defendant could not safely operate a vehicle and Defendant was placed under arrest. Deputy Rael testified that he read the Implied Consent Act to Defendant, and requested that she submit to a breath test. Defendant then admitted to having consumed alcohol, and the breath test indicated that her blood alcohol concentration (BAC) was .04/.05.
{5} Based on Defendant‘s poor performance on the FSTs, Deputy Rael did not believe the BAC results were consistent with her level of impairment. Deputy Rael requested that Defendant also submit to a blood test. Dеfendant initially agreed to the blood test, but later refused. Defendant was charged with aggravated DWI.
{6} After a bench trial, Defendant was convicted of aggravated DWI. Defendant appealed to the district court. The district court
II. DISCUSSION
A. Sufficiency of the Evidence
{7} “[T]he 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. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. “In reviewing the sufficiency of the evidence, [the appellate courts] must view the evidence in the light most favorable to thе guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.
{8} In the present case, Defendant argues that because the State presented no direct evidence of impaired driving, it lacked sufficient evidence to support a verdict of aggravated DWI beyond a reasonable doubt.
Aggravated driving under the influence of intoxicating liquor . . . consists of:
. . . .
(3) refusing to submit to chemical testing, as provided for in the Implied Consent Act[,
NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2015)], and in the judgment of the court, based upon evidence of intoxication presented to the court, the driver was under the influence of intoxicating liquor[.]
There is no dispute that Defendant refused to submit to the blood test. Accordingly, the sole question is whether substantial evidence supports the trial court‘s conclusion that Defendant was driving under the influence of intoxicating liquor.
{9} In order to convict Defendant of driving under the influence of intoxicating liquor, the trial court must find that as a result of drinking liquor Defendant was “less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle [a vehicle] with safety to himself and the public.” State v. Sisneros, 1938-NMSC-049, ¶ 18, 42 N.M. 500, 82 P.2d 274 (internal quotation marks and citation omitted); State v. Gurule, 2011-NMCA-042, ¶ 7, 149 N.M. 599, 252 P.3d 823 (same). “This standard is known as the impaired to the slightest degree standard.” Gurule, 2011-NMCA-042, ¶ 7 (internal quotation marks and citation omitted).
{10} At trial, the State presented evidence that Defеndant was driving the vehicle when it approached the checkpoint after having consumed alcohol. Deputy Rael testified that Defendant was in fact driving the vehicle after having consuming alcohol when she approached the checkpoint. Defendant eventually admitted to consuming alcohol and submitted to a breath test, which measured her BAC .04/.05.
{11} Deputy Rael testified that Defendant was confused, had bloodshot, watery eyes, and smelled of alcohol. According to Deputy Rael, Defendant was unable to maintain her balance and was unable to follow his instructions during the FST sequences. Deputy Rael administered four FST sequences and Defendant was not able to complete any of them successfully.
{12} We hold that this evidence supports her conviction for driving while impaired to the slightest degree. See State v. Sparks, 1985-NMCA-004, ¶ 6, 102 N.M. 317, 694 P.2d 1382 (defining substantial evidence as that evidence which a reasonable person would consider adequate to support a dеfendant‘s conviction); see also State v. Neal, 2008-NMCA-008, ¶ 29, 143 N.M. 341, 176 P.3d 330 (observing that the defendant‘s unsatisfactory performance on the FSTs, including his failure to follow instructions and his lack of balance, constituted signs of intoxication, which supported his conviction for driving under the influence of intoxicating liquor); State v. Soto, 2007-NMCA-077, ¶¶ 32, 34, 142 N.M. 32, 162 P.3d 187 (holding that there was sufficient evidence of driving under thе influence pursuant to the impaired-to-the-slightest-degree standard, even though, among other factors, the officers observed no irregular driving when the defendant “had
B. Implied Consent to Submit to Blood Testing
{13} Defendant also argues that evidence of her refusal to take a blood test should have been suppressed because, under the circumstances of this case, a compelled blood test was constitutionally unreasonable under both the
1. Preservation
{14} The State asserts that Defendant failed to preserve the suppression argument she now makes on appeаl. Under the New Mexico Rules of Appellate Procedure, “[t]o preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked[.]”
{15} However, where a decision by the district court was not fairly invoked on a particular issue, an appellate court may still consider “jurisdictionаl questions, issues of general public interest, or matters involving fundamental error or fundamental rights of a party.” State v. Harrison, 2010-NMSC-038, ¶ 10, 148 N.M. 500, 238 P.3d 869 (internal quotation marks and citation omitted); see
2. Standard of Review
{16} “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).
{17} In the present case, Defendant advances arguments under the United States and the New Mexico Constitutions, which provide overlapping protections against unreasonable searches and seizures. Gomez, 1997-NMSC-006, ¶¶ 19-23. In analyzing whether challenged police procedures are unlawful, we apply the interstitial approach set forth in Gomez, which requires that we first consider whether the United States Constitution makes the challenged procedures unlawful. Id. ¶ 19. “If so, the fruits usually must be suppressed as evidence. If not, we next consider whether the New Mexico Constitution makes the search unlawful.” Rowell, 2008-NMSC-041, ¶ 12; Gomez, 1997-NMSC-006, ¶ 19.
3. Reasonableness of a Warrantless Blood Test
{18} Under the
{19} A blood alcohol test is considered “a search of ‘persons’ [,]” and therefore falls within the ambit of the
{20} The United States Supreme Court has “referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” Birchfield, ___U.S.___, 136 S. Ct. 2160, 2185; see e.g., Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 1565-66 (2013) (plurality opinion); South Dakota v. Neville, 459 U.S. 553, 560 (1983). Recently, the United State Supreme Cоurt considered whether criminalizing a driver‘s refusal to submit to a chemical test comports with the
{21} In analyzing whether a given type of search is exempt from the warrant requirement the Court assesses “on the one hand, the degree to which it intrudes upon an individual‘s privacy and, on thе other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at 2176 (internal quotation marks and citation omitted); Riley v. California, ___ U.S. ___, 134 S. Ct. 2473, 2484 (2014). In Birchfield, the Court considered the impact of breath and blood tests on individual privacy interests. Birchfield, ___U.S.___, 136 S. Ct. at 2176-78. The Birchfield court determined that blood tests impact individual privacy interests to a significantly greater degree than breath tests. Id. at 2178. Birchfield recognizеd that breath tests, which analyze air expelled out of the subject‘s lungs to determine the BAC, do not implicate significant privacy concerns. Id. at 2176-77. Birchfield noted that in contrast to breath tests, blood tests, are significantly intrusive because they “require piercing the skin and extract[ing] a part of the subject‘s body,” and leave “in the hands of lаw enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading.” Id. at 2178.
{22} Considering the government‘s and states’ paramount interest in preserving the safety of public highways, the Court acknowledged the ” ‘carnage’ and ‘slaughter’ caused
{23} Balancing the slight impact of breath tests on individuals’ privacy, and the great need for BAC testing, Birchfield determined that warrantless breath tests incident to drunk driving arrests are reasonable under the
{24} Birchfield also rejected the idea that warrantless blood tests can be justified based on the general concept of implied consent laws. Id. at 2185-86. Thе constitutionality of states’ implied consent laws was not at issue, and the Court did not address that issue. Id. at 2185. However, Birchfield did address whether a driver could be criminally liable for refusing to submit to an implied consent blood test. Id. Birchfield reasoned that “[t]here 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.” Id. Applying the
{25} In the present case, because Defendant‘s DWI charge by alcohol was aggravated based on her refusal of a warrantless blood test, a search which she refused, cannot be justified on the basis of implied consent. See id. at 2176. Neither the record nor the briefing in this case indicates that Deputy Rael‘s interview of Defendant, administration of the FSTs, and the breath test conducted by Deputy Rael failed to satisfy the State‘s interests in acquiring evidence to enforce its drunk driving laws against Defendant. And the State has not presented any information to suggest that any exception to the warrant requirement would have justified a warrantless search of Defendant‘s blood. Cf. McNeely, ___ U.S. at ___, 133 S. Ct. at 1567. Accordingly, we conclude Defendant was threatened with an unlawful search. We further conclude that Defendant‘s refusal to submit to the search cannot be the basis for aggravating her DWI sentence. See Birchfield, ___U.S.___, 136 S. Ct. at 2186 (reversing the defendant‘s conviction where the State presented no “case-specific information to suggest that the exigent circumstances exception would have justified a warrantless [blood test]” and where the Court was “[u]nable to see any other basis on which to justify a warrantless test of [the defendant‘s] blood“).
CONCLUSION
{27} For the foregoing reasons, we reverse Defendant‘s conviction of aggravated DWI and remand to the trial court for resentencing on the charge of DWI, impaired to the slightest degree.
{28} IT IS SO ORDERED.
M. MONICA ZAMORA, Judge
WE CONCUR:
MICHAEL E. VIGIL, Chief Judge
MICHAEL D. BUSTAMANTE, Judge