State v. VaughnState v. Vaughn
{1} Dеfendant appeals his conviction for aggravated driving while under the influence of intoxicating liquor or drugs on three grounds: (1) the trial court acquitted him of aggravated DWI during the proceedings and therefore violated double jeopardy protections when it found him guilty later on in the same proceedings; (2) the trial court incorrectly interpreted the applicable statutory provisions on refusal to submit to testing by holding that Defendant refused to comply even though he had provided one breath sample; and (3) it is fundamentally unfair and a violation of substantive due process to admit a breath sample into evidence while also finding Defendant guilty of refusing to provide a breath sample. For the reasons that follow, we are not рersuaded by Defendant’s first two arguments. We do not reach Defendant’s due process argument because it is insufficiently developed. We therefore affirm Defendant’s conviction.
BACKGROUND
{2} Defendant was arrested after failing field sobriety tests and was taken to Bernalillo County Detention Center, where he was asked to provide breath samples approximately
{3} Defendant was charged with aggravated DWI based on both the breath alcohol content (BAC) score of 0.16, often referred to as a per se DWI violation, and based upon his refusal to provide sufficient breath samples. See
{4} During the course of thе trial, the trial court made oral and written statements that Defendant contends constituted an acquittal of the refusal basis for aggravated DWI. We discuss these statements more fully below in conjunction with the discussion of double jeopardy.
{5} Defendant appealed to the district court. The district court rejected his double jeopardy and due process claims, and affirmed his conviction on grounds that there was sufficient evidence to find that Defendant had refused to submit to testing and that he had driven while intoxicated in violation of
DISCUSSION
Double Jeopardy
{6} Defendant argues that the trial court acquitted him of the refusal basis for aggravated DWI when it issued oral and written rulings during the course of the trial. Defendant invokes both the United States and New Mexico double jeopardy clauses. U.S. Const.Amend. V;
{7} Under Gomez, we first consider whether the state constitution has been held to provide greater protection under similar circumstances than the federal constitution. State v. Lynch,
{8} Turning to the federal constitution, such claims are reviewed de novо and need not be raised in the trial court to be preserved. State v. Rowell,
{9} Under the doctrine of double jeopardy, a verdict of acquittal is given “absolute” protection to guarantee finality of that verdict because the defendant’s interest in such finality is “at its zenith[.]” Id. at 742,
{10} Defendant claims that comments made by the trial court during his trial and a written order the judge issued both constituted acquittals. We set out the comments and order in the context in which they were given.
{11} In his closing argument on June 2, 2003, Defendant contended that the breath score alone was insufficient to support a conviction as a matter of law. After the State noted that Defendant was charged in the alternative with refusal, Defendant argued that the per se provision and the refusal provision are mutually exclusive, contending that once a breath score is in evidence it is contrary to logic for the State to claim the Defendant refused to submit to testing.
{12} When the trial court issued its initial decision on June 3, 2003, it stаted “Mr. Vaughn, I’m going to find you guilty of the aggravated DWI on the basis of the breath score, not on the basis of the refusal, although I do think that alternatively that could have been argued as well.” (Emphasis added.) Defendant contends this oral statement operated as an acquittal on the refusal basis for aggravated DWI. The trial court then issued its sentence for that decision, saying, “I’m going to go ahead and sentence your client to the first offender program. There is a mandatory 48 hours associated with the aggravated.”
{13} Defendant moved for reconsideration of the decision on the ground that the State failed to adduce testimony relating the breath score back to the time of driving. Defense counsel also mentioned that he had not found any authority specifically on whether a defendant can be guilty of refusal after providing one sample. The trial court agreed to review the relation back issue urged by Defendant and scheduled a hearing on the motion for reconsideration on Friday, June 6, 2003. The trial court stated, “The aggravation I’m going to support urith a subsequent order, which will then at that time, if I do find that, I will order that he turn himself in.... And I’ll defer the aggravation, and consider it on the motion to reconsider on Friday.” (Emphasis added.) The trial court also issued a written form titled “Sentencing Order — DWI First Offender Program.” The trial court checked the box for Defendant “having been found guilty” of “[djriving while intoxicated, first offense,” although the form does not indicate which statutory provision was violated. The trial сourt noted on the form that the parties were to return in three days for the “Mo to reconsider Agg.” Defendant claims this form was both a judgment of acquittal and a deferred sentence that precluded later imposition of jail time.
{14} Following the hearing on the motion for reconsideration, the trial court rejected Defendant’s contention that the per se charge was not supported by sufficient evidence. During this final session, the trial court commented, “I think it’s to your client’s benefit that I find in this particular case that it was the point one six as opposed to the refusal because of the status of his license.” (Emphasis added.) Defendant claims this comment also operated as an acquittal of the refusal basis for aggravated DWI. The written judgment filed after this hearing stated, “Aggravation found — Defendant guilty at trial of Agg DWI[.]”
{15} In determining whether any of the trial court’s actions constituted an acquittal that terminated jeopardy, we look first to New Mexico law. The general rule in New Mexico is that an oral ruling by a trial court is not final and, with only limited exceptions, it is not binding. State v. Diaz,
The June 3, 2003 Order Did Not Constitute an Acquittal
{17} Defendant places great emphasis on the sentencing order issued by the trial court on June 3, 2003, three days before the final judgment and sentence. Defendant argues that this written order puts this case beyond the reach of Diaz because in that case oui’ Supreme Court focused on the lack of a filed written judgment. Diaz,
{18} We agree with the State and conclude that this order was interlocutory and not binding. Both the content of this order and the context in which it was given convince us that it was interlocutory and neither terminated jeopardy nor imposed a sentence upon Defendant. As the State notes, this order was not a final judgment and sentence because it expressly contemplated further proceedings on the issue of aggravation, and therefore did not “dispose} ] of’ all issues of law and fact “to the fullest extent possible” under traditional finality rules. State v. Candy L.,
{19} New Mexico cases address similar circumstances in the context of sentencing. Where a defendant is on notice that the trial court’s oral sentence was not final, he has no reasonable expectation of finality. State v. Rushing,
{20} Defendant also advances an argument that the June 3, 2003 order was final because, under Diaz, oral judgments are not final but written judgments are final. Defendant appears to view this as a strictly binary situation — that an order must either be oral and not final or written аnd final. We disagree because not all written orders are final. See Smith v. Love,
{21} Defendant further argues that this order was an acquittal on the refusal basis for aggravated DWI, apparently under the theory that it somehow finalized or solemnized the trial court’s oral comment “guilty of the aggravated DWI on the basis of the breath score, not on the basis of the refusal, although I do think that alternatively that could have been argued as well.” (Emphasis added.) This argument is speculative since the form simply indicates a determination of guilt for “[d]riving while intoxicated, first offense.” It is unclear from Defendant’s argument how this initial order operates as an acquittal on the refusal basis apart from simply being “a writing.” As noted above, not all writings by a judge are final orders. As Defendant has no persuasive or clear argument on how the June 3, 2003, writing could operate as a final verdict of acquittal, we reject it as being without merit or support in the record.
{22} We also reject Defendant’s contention that the June 3, 2003 order imposed a deferred sentence, which would bar any later sentence of confinement under State v. Lopez,
Oral Rulings of Acquittal Are Not Binding
{23} Defendant next contends that an oral ruling going to guilt or innocence should be binding because its constitutional gravity is greater than an oral ruling regarding sentencing. He directs us to out-of-state authority holding that oral rulings can terminate jeopardy. See Lowe v. State,
{24} First, Defendant has not meaningfully distinguished this case from the general rule in New Mexico that oral rulings are ineffective and are not final judgments. Smith,
{25} Defendant also makes no argument why finality for purposes of appeal should be different from finality for a criminal verdict in terms of terminating jeopardy. This court has held that “in criminal cases, the judgment is final for the purpose of an appeal when it terminates the litigation on the merits and leaves nothing to be done but [enforcement].” Durant,
{26} Second, permitting oral acquittals would require us to clarify what words used by a trial court would or would not constitute an acquittal — an exercise with serious practical and conceptual difficulties. After surveying cases from other jurisdictions in this area, it is clear that those courts that allow’ jeopardy to terminate upon an oral ruling have had to make subtle, fine-line distinctions, including: (1) which words are sufficiently final, (2) whether words have hung in the air for long enough to solidify into irrevocable orders, (3) whether parties did or did not reasonably rely on such rulings to their detriment, and (4) whether an interactive dialogue with the court truly communicated an acquittal on the merits. See generally State v. Collins,
{27} Discouraging courts from engaging in open dialogue with the parties or forcing judges to constantly issue disclaimers that all oral rulings are tentative and under advisement is not a practical way to guarantee the verdict finality that double jeopardy seeks to protect. We approve of an approach similar to that adopted by Utah and conclude that a bright-line rule rejecting oral acquittals is practical, clarifies the expectations of thе parties, and supports the double jeopardy doctrine’s protections of verdict finality. See State v. Gerrard,
{28} Third, acceptance of the concept of oral acquittals would dilute double jeopardy’s core focus on verdict finality with concerns about trial process. Those courts that find jeopardy terminated by oral rulings often slide into concerns about prejudice in the trial process, which is not the focus of double jeopardy doctrine. See Brooks v. State,
{29} In New Mexico, the result of a trial, traditionally, is the final written judgment and sentence, and not oral rulings during the triаl. Diaz,
{30} We conclude that neither the trial court’s oral comments nor its interlocutory order subjected Defendant to the harassment of a second prosecution after a verdict of acquittal. Therefore, the double jeopardy clause of the United States Constitution was not violated. Angel,
The Trial Court’s Oral Ruling Did Not Constitute Fundamental Error
{31} Defendant’s final argument regarding double jeopardy seems to be that he was prejudiced at trial by the oral ruling on June 3, 2003, because he understood the court’s oral ruling to be an acquittal of the refusal theory and therefore did not address refusal in his motion for reconsideration. This claim is weak because refusal had been part of the original charge, and Defendant addressed refusal in his case-in-chief when he testified that he had difficulty hearing the instructions given to him and did not refuse to blow into the device. As noted, the fact-finder did not find Defendant credible. Defendant also undertook research to find any relevant case law to support his argument on refusal, even after the oral statements by the trial court, and Defendant continued to argue against the refusal basis, both before arid after the purported oral acquittals.
{32} As described above, the doctrine of fundamental error is the more appropriate tool to guard against prejudice from oral rulings during trial. In such an analysis, Defendant would have to show that the oral statements by the trial court caused “fundamental unfairness” in his trial. Barber,
The Implied Consent Act, the DWI Statutes, and Applicable Regulations
{33} Defendant contends the trial court incorrectly interpreted the aggravated DWI statute,
{34} The question presented is whether the legislature intended that a driver
{35} The DWI statute,
{36} The DWI statute states, in pertinent part, that a person commits aggravated DWI if he “refuse[s.] to submit to chemical testing, as provided for in the Implied Consent Act ... and in the judgment of the court, based upon the evidence of intoxication presented to the court, was under the influence of intoxicating liquor or drugs.”
[A] “sample” [is] a quantity of a subject’s blood or exhaled breath to be analyzed for the presence of alcohol.... All samples should be of sufficient volume so that complete analysis ... may be performed. The breath test operator should make a good faith attempt to collect and analyze at least two (2) samples of breath.
7 NMAC 33.2.7(Q) (emphasis added).
“Test” ... [i]n the case of breath, “test” means the analysis of breath samples for alcohol or other chemical substances or both.
7 NMAC 33.2.7(R) (emphasis added).
{37} The definitions portion of the SLD regulations clearly anticipate two breath samples, either expressly or by use of the plural “samples.” Similarly, the breath sample collection regulation envisions either two or three samples, yet allows one sample to be analyzed, stating:
(1) Two breath samples shall be collected and analyzed by certified Operators____ The two breath samples shall be taken not more than 15 minutes apart. If the difference in the results of the two samples exceeds 0.02 grams per 210 liters (BrAC), a third sample of breath or blood shall be collected and analyzed. If the subject declines or is physically incapable of consent for the second or third samples, it shall be permissible to analyze fewer samples.
(2) Samples of the subject’s breath shall be collected and analyzed pursuant to the procedures prescribed by, and employing only devices approved and certified by, [SLD],
7 NMAC 33.2.12(B)(1), (2) (emphasis added).
{38} It is clear from the SLD definitions and procedures that a correctly administered brеath test will consist of two samples or, in some cases, three samples. The provision allows analysis of “fewer” samples (one sample) in the case of inability or refusal, but the directive to the operator is clear that two samples are to be collected. It is reasonable to conclude that the requirement for two samples is for greater accuracy, but if only one can be obtained, the process is deemed sufficiently accurate to analyze that one sample. This is in order to allow for effective prosecution of those drunk drivers who will provide only one sample; if the suspect is injured or unconscious the State may obtain a blood sample under the Implied Consent Act.
{39} Defendant contends that the words “[a driver consents] to chemical tests of his breath or blood or both ” in the Implied
{40} Finally, Defendant argues that because the SLD regulations allow the analysis of a single sample, providing just one sample results in compliance with the statutes and regulations. This runs counter to the language of the aggravated DWI provision that a person is guilty if he “refuse[s] to submit to chemical testing, as provided for in the Implied Consent Act.”
{41} Our conclusion is also supported by similar cases in which this Court has held that anything short of full and unequivocal consent is a refusal except in very limited circumstances. Fugere v. State, Taxation & Revenue Dep’t,
Due Process
{42} Defendant claims it violates the due process clauses of both the federal and state constitutions to convict him of refusing to provide a sample when a sample is used against him. Defendant makes this claim in one sentence without any citation to authority or analysis on how due process was violated by the facts of this case. This Court will not consider an argument that lacks citation to any legal authority in support of that argument. Santa Fe Exploration Co. v. Oil Conservation Comm’n,
CONCLUSION
{43} For the foregoing reasons, we affirm Defendant’s conviction.
{44} IT IS SO ORDERED.