STATE OF NEW MEXICO, Plaintiff-Petitioner, v. LARESSA VARGAS, Defendant-Respondent.
Docket No. S-1-SC-36197
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
October 5, 2017
Opinion Number: 2017-NMSC-029
Briana H. Zamora, District Judge; CHÁVEZ, Justice.
ORIGINAL PROCEEDING ON CERTIORARI
Hector H. Balderas, Attorney General
John Kloss, Assistant Attorney General
Santa Fe, NM
for Petitioner
Bennett J. Baur, Chief Public Defender
Steven James Forsberg, Assistant Appellate Defender
Albuquerque, NM
for Respondent
CHÁVEZ, Justice.
{1} The United States Supreme Court recently held that (1) a law enforcement officer
{2} In this case, defendant Laressa Vargas consented to and submitted to two breath tests, but refused to consent to a blood test. The arresting officer did not obtain a warrant for a blood test, nor could he do so under New Mexico law, because he did not have probable cause to believe that Vargas had committed a felony or caused death or great bodily injury to another person while driving a motor vehicle under the influence of alcohol or a controlled substance as required by
{3} The Birchfield opinion had not been decided when the Bernalillo County Metropolitan Court entered its judgment convicting Vargas; however, Birchfield was published while Vargas’s appeal was pending before the New Mexico Court of Appeals. The Court of Appeals applied Birchfield and reversed Vargas’s conviction for aggravated DWI. See State v. Vargas, 2017-NMCA-023, ¶¶ 2, 26, 389 P.3d 1080. We granted the State’s petition for writ of certiorari to consider whether the Court of Appeals erred in applying Birchfield. State v. Vargas, 2016-NMCERT-___ (No. S-1-SC-36197, Feb. 14, 2017). We conclude that the Court of Appeals correctly applied Birchfield to the pending appeal because of a person’s fundamental right under the Fourth Amendment of the United States Constitution not to be subjected to unreasonable searches, and because Birchfield prohibits punishment under implied consent laws based on an arrestee’s refusal to consent to and submit to a warrantless blood test. See Birchfield, ___ U.S. at ___, 136 S. Ct. at 2160, 2186.
I. FACTUAL AND PROCEDURAL BACKGROUND
{4} On April 23, 2011 at approximately 1:00 a.m., Bernalillo County Deputy Sheriff Patrick Rael was part of a force conducting a DWI checkpoint on Coors Boulevard in Albuquerque when he encountered Vargas. As Vargas approached the checkpoint, she stopped fifteen to twenty yards before she reached where Deputy Rael was standing, and Deputy Rael waved his flashlight to get her attention to indicate that she should move forward. Vargas then rolled down her window and said “good afternoon,” which Deputy Rael found odd, given the time of night.
{5} Deputy Rael immediately noticed the odor of alcohol emanating from both Vargas’s person and her vehicle. He also observed that Vargas’s eyes were bloodshot and watery. Deputy Rael asked Vargas if she had been drinking, to which she answered that she had not. She explained that she was the designated driver for her passenger, who had been drinking. Deputy Rael described Vargas as “confused” and “nervous.”
{6} Deputy Rael requested that Vargas submit to field sobriety tests (FSTs), and Vargas agreed. Vargas performed poorly on the FSTs. At that point Deputy Rael believed that Vargas was intoxicated and could not safely operate a vehicle, so he placed her under arrest.
{7} Deputy Rael read the pertinent provisions of the New Mexico Implied Consent Act to Vargas, after which she agreed to a breath test. Vargas provided two breath test samples, which resulted in readings of 0.04 at 1:33 a.m. and 0.05 at 1:35 a.m. Because he believed that the breath test results were inconsistent with Vargas’s signs of impairment,
{8} At the conclusion of the bench trial, the metropolitan court determined that the State had proved beyond a reasonable doubt that Vargas drove while she was under the influence of alcohol to the slightest degree.1 It also concluded that officers have the discretion to request breath tests, blood tests, or both, and that Vargas’s refusal aggravated the underlying DWI. The metropolitan court sentenced Vargas to a term of ninety days in jail for aggravated DWI under
[a]ggravated driving under the influence of intoxicating liquor or drugs consists of: refusing to submit to chemical testing, as provided for in the Implied Consent Act, 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 or drugs.
{9} Vargas subsequently appealed to the Second Judicial District Court and then to the Court of Appeals. After the United States Supreme Court decided Birchfield, Vargas raised for the first time on appeal to the Court of Appeals the defense that the warrantless request for the blood test was an unreasonable search under the Fourth Amendment, and that her refusal to submit to it could not be used to prove aggravated DWI.
{10} Although the Court of Appeals concluded that Vargas’s constitutional argument was not preserved, it decided the issue on the merits. See Vargas, 2017-NMCA-023, ¶¶ 14-15. The Court reversed Vargas’s aggravated DWI conviction and remanded the case to the metropolitan court for resentencing on the DWI charge based on Vargas being impaired to the slightest degree pursuant to
II. DISCUSSION
A. Birchfield Applies Retroactively
{11} The State’s argument that Birchfield should not be applied retroactively is not persuasive. In Teague v. Lane, the United States Supreme Court established the analysis that courts must follow to determine whether a new rule applies retroactively. See 489 U.S. 288, 299-310 (1989). New Mexico courts have adopted this analysis. See Kersey v. Hatch, 2010-NMSC-020, ¶¶ 21, 25, 148 N.M. 381, 237 P.3d 683. “An appellate court’s consideration of whether a rule should be retroactively or prospectively applied is invoked only when the rule at issue is in fact a new rule.” State v. Mascareñas, 2000-NMSC-017, ¶ 24, 129 N.M. 230, 4 P.3d 1221 (internal quotation marks omitted). The Teague Court determined
{12} The rule recently announced in Birchfield fits squarely within the first Teague exception to the general principle against retroactive application because the new rule “places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’ ” Teague, 489 U.S. at 307 (citation omitted). Birchfield bars criminal sanctions previously imposed upon a subject for refusing to submit to warrantless blood tests. See ___ U.S. at ___, 136 S. Ct. at 2185-86. Therefore, Birchfield is applicable here.
B. The Court of Appeals Had Broad Discretion to Review Sua Sponte the Unpreserved Fourth Amendment Issue on Appeal
{13} Generally, “[t]o preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked . . . .”
{14} However, questions involving “general public interest [or] fundamental error or fundamental rights of a party” are exceptions to the general rule requiring preservation.
{15} The State’s concern with the Court of Appeals’s review sua sponte of the merits of Vargas’s argument is that it was not provided an opportunity for additional briefing to address the scope and applicability of Birchfield, and was therefore inhibited from developing the record to address the circumstances that would support probable cause and exigent circumstances justifying a warrantless blood test. We agree that the Court of Appeals should have asked for additional briefing, particularly to address Birchfield, which was decided while the present case was on appeal. Nevertheless, we remind litigants that when an appellate court fails to request supplemental briefing, filing a motion for rehearing is a valid option when the motion is “based upon a point of law . . . not raised, briefed or argued by any party but relied upon by the court in its disposition of the matter . . . .”
C. Vargas Was Unconstitutionally Punished for Refusing to Submit to an Unreasonable Blood Test
{16} We review the merits of Vargas’s Fourth Amendment argument de novo. See State v. Ryon, 2005-NMSC-005, ¶ 11, 137 N.M. 174, 108 P.3d 1032 (“The legality of a search . . . turns on the question of reasonableness [and we] review the determination of reasonableness de novo.”).
{17} “The Fourth Amendment, incorporated against state actors [such as police officers] via the Fourteenth Amendment, requires that all searches and seizures be reasonable in their execution.” State v. Leyva, 2011-NMSC-009, ¶ 9, 149 N.M. 435, 250 P.3d 861 (citations omitted). To identify reasonableness, we balance “public interest and the [subject]’s right to personal security free from arbitrary interference by law officers.” Id. (internal quotation marks and citation omitted).
{18} Both breath tests and blood tests are searches, with each test implicating varying privacy concerns. Birchfield, ___ U.S. at ___, 136 S. Ct. at 2173-74, 2176. Breath tests elicit few privacy concerns; they only reveal a subject’s BAC, no sample is left in the possession of the officer which may be used to obtain additional information, there is no great embarrassment associated with this testing, and the tests collect only breath, which we expel at all times. Id. at ___, 136 S. Ct. at 2176-78. In contrast to breath, we do not regularly shed blood, and a blood test provides an officer with a sample from which more information than mere BAC can be extracted. Id. at ___, 136 S. Ct. at 2178.
{19} The Fourth Amendment permits warrantless breath tests incident to legal arrests because noninvasive breath tests only slightly impact a subject’s privacy and because the state has an interest in testing BAC to maintain highway safety and deter drunk driving. Id. at ___, 136 S. Ct. at 2184. The Birchfield Court held that blood tests bear too heavily on a subject’s privacy interests to permit the state to seize warrantless samples at all DWI stops. Id. at ___, 136 S. Ct. at 2178. Therefore, when a subject does not consent to such a search, officers must obtain a warrant or establish probable cause and exigent circumstances to justify a warrantless search. See id. at ___, 136 S. Ct. at 2185-86 (concluding that drivers do not consent to criminal penalties for refusing invasive blood tests by virtue of driving on public roads). Vargas consented to two breath tests. Deputy Rael subsequently asked Vargas to consent to a warrantless blood draw. Because she refused, Deputy Rael should have assumed that a warrant was necessary, unless probable cause to request the blood test and exigent circumstances obviated the need for a warrant.
{20}
If a person under arrest for violation of an offense enumerated in the Motor Vehicle
Code . . . refuses upon request of a law enforcement officer to submit to chemical tests designated by the law enforcement agency as provided in Section 66-8-107 NMSA 1978 [the implied consent provision], none shall be administered except when a municipal judge, magistrate or district judge issues a search warrant authorizing chemical tests as provided inSection 66-8-107 NMSA 1978 upon [the judge] finding in a law enforcement officer’s written affidavit that there is probable cause to believe that the person has driven a motor vehicle while under the influence of alcohol or a controlled substance, thereby causing the death or great bodily injury of another person, or there is probable cause to believe that the person has committed a felony while under the influence of alcohol or a controlled substance and that chemical tests as provided inSection 66-8-107 NMSA 1978 will produce material evidence in a felony prosecution.
{21} Deputy Rael had probable cause to believe that Vargas had driven a motor vehicle while under the influence of alcohol or a controlled substance, but he did not have probable cause to believe that Vargas had caused the death or great bodily injury of another person while driving under the influence. Nor did Deputy Rael have probable cause to believe that Vargas had committed a felony while under the influence of alcohol or a controlled substance and that the chemical test would produce material evidence in a felony prosecution. Vargas’s arrest occurred at a DWI checkpoint. The State does not contend that she was driving under the influence and caused either death or great bodily injury to another. The State also does not contend that Vargas committed a felony while she was under the influence of alcohol or another substance.
{22} Because Deputy Rael lacked the probable cause required by
III. CONCLUSION
{23} For the foregoing reasons, we affirm the Court of Appeals in reversing Vargas’s conviction for aggravated DWI and remanding for resentencing on DWI, impaired to the slightest degree.
{24} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
JUDITH K. NAKAMURA, Chief Justice
PETRA JIMENEZ MAES, Justice
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice