1998 -NMCA- 76, State v. Jones

• Citation: 964 P.2d 117,125 N.M. 556,1998 NMCA 76
• Decision Date: 20 February 1998
• Docket Number: No. 18515,18515
• Parties: , 1998 -NMCA- 76 STATE of New Mexico, Plaintiff-Appellee, v. Charles Lee JONES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 117

964 P.2d 117

125 N.M. 556, 1998 -NMCA- 76

STATE of New Mexico, Plaintiff-Appellee, v. Charles Lee JONES, Defendant-Appellant.

No. 18515.

Court of Appeals of New Mexico.

Feb. 20, 1998.

Tom Udall, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

John W. Higgins, Higgins, Mescall & Lee, Albuquerque, for Defendant-Appellant.

OPINION

FLORES, Judge.

¶1 Defendant appeals the district court's affirmance of his metropolitan court conviction of driving while intoxicated (DWI). On appeal, Defendant argues that the district court erred by: (1) finding that there was probable cause for his arrest; (2) failing to suppress the State's evidence of breath alcohol; (3) finding that Defendant was properly and accurately notified of his right to an independent sobriety test by someone of his own choosing; and (4) determining that NMSA 1978, § 66-8-109 (1993) does not allow an individual arrested for DWI the right to have a person of his own choosing draw his blood. In addition, Defendant argues that the failure of the police to follow Section 66-8-109(B) violated his right to due process.

¶2 Although we hold that the district court erred in its interpretation of the statute, we nonetheless affirm Defendant's conviction because the warrantless arrest was valid and because he was not prejudiced by the violation of his statutory rights.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶3 On March 25, 1995, Defendant rear-ended another vehicle which had stopped to allow a third vehicle to make an illegal u-turn. Shortly after the accident, Albuquerque Police Department (APD) Officer Trujillo came upon the accident scene. The officer stopped and spoke with Defendant, who had a strong odor of alcohol on his breath, bloodshot and watery eyes, and slurred speech. Defendant swayed while talking with the officer, and told the officer that he had had two beers. Officer Trujillo had Defendant perform three field sobriety tests--the eye gaze nystagmus test, the one leg stand, and the heel to toe test. Defendant failed all three tests. Based on his observations of Defendant, and Defendant's failure of the field sobriety tests, Officer Trujillo arrested Defendant for aggravated DWI and "following too closely."

¶4 Officer Trujillo transported Defendant to the Bernalillo County Detention Center (BCDC), observed the twenty-minute waiting period, and took Defendant into the breath-testing room. Officer Trujillo then read to Defendant an Implied Consent Act advisory, which was posted on the wall. The language of the advisory did not precisely mirror the language of the statute. See § 66-8-109(B). The officer administered two breath tests in immediate succession. The intoxilyzer measured Defendant's breath alcohol level at .17 on each of the two tests administered, showing that Defendant was intoxicated.

¶5 Once the tests were completed, Defendant asked to speak to an attorney and asked for an independent blood test. Officer Trujillo requested a blood technician on contract with APD to perform the blood test at BCDC. Defendant also requested that he be allowed to call his own doctor because he wanted someone he knew to perform the blood test upon him. At no time did officer Trujillo allow Defendant to use the telephone. Officer Trujillo made no calls on Defendant's behalf.

¶6 When the APD blood technician arrived, Defendant refused to allow the blood technician to draw his blood. Officer Trujillo informed Defendant that it was APD policy to provide defendants with qualified doctors, nurses, or blood technicians to draw the blood and that defendants could take the blood sample to a person of their own choosing for the analysis.

¶7 Defendant was convicted of DWI, first offense, in metropolitan court. The metropolitan court dismissed the "aggravated" portion of the DWI charge, in part because the State failed to afford Defendant an opportunity to have a person of his choosing draw his blood. The metropolitan court also dismissed the "following too closely" charge. Defendant appealed to the district court. The district court affirmed and Defendant appealed.

II. DISCUSSION

A. There Was Probable Cause for the Arrest

¶8 A police officer may arrest without a warrant any person who is present at the scene of a motor vehicle accident if the arresting officer has "reasonable grounds, based on personal investigation which may include information from eyewitnesses, to believe the person arrested has committed a crime." NMSA 1978, §§ 66-8-125(A)(1) & 66-8-125(B); see State v. Galloway, 116 N.M. 8, 11, 859 P.2d 476, 479 (Ct.App.1993) ("An officer has probable cause when facts and circumstances within the officer's knowledge, or on which the officer has reasonably trustworthy information, are sufficient to warrant someone of reasonable caution to believe that an offense has been or is being committed."); State v. Goss, 111 N.M. 530, 534, 807 P.2d 228, 232 (Ct.App.1991) (probable cause is more than suspicion but less than certainty).

¶9 Whether probable cause exists is a mixed question of law and fact. See id.; State v. Anderson, 107 N.M. 165, 168-69, 754 P.2d 542, 545-46 (Ct.App.1988). We review legal conclusions de novo, but defer to the trial court's findings of fact. Our review of factual determinations is limited to determining whether there was substantial evidence to justify a warrantless arrest. Cf. State v. Wisdom, 110 N.M. 772, 774, 800 P.2d 206, 208 (Ct.App.1990) (factual determinations underlying the issuance of search warrants are reviewed for substantial evidence), overruled on other grounds by State v. Barker, 114 N.M. 589, 594, 844 P.2d 839, 844 (Ct.App.1992).

¶10 In light of the facts in this case and our case law on probable cause and DWI, we hold that Officer Trujillo had reasonable grounds to believe that Defendant had been driving while intoxicated. See State v. Ruiz, 120 N.M. 534, 540, 903 P.2d 845, 851 (Ct.App.1995) (probable cause exists where police observed car weaving, smelled strong odor of alcohol, saw glassy eyes, and where defendant was unable to perform field sobriety tests); State v. Trujillo, 85 N.M. 208, 211, 510 P.2d 1079, 1082 (Ct.App.1973) (probable cause existed where defendant had strong smell of liquor on breath immediately after auto accident occurred, and where there was a half-empty bottle of wine in defendant's car). Here, Officer Trujillo came upon an accident scene in which the vehicle that Defendant had been driving had hit the vehicle immediately in front of him. Officer Trujillo smelled a strong odor of alcohol on Defendant's breath, observed Defendant's watery and bloodshot eyes, and heard Defendant's slurred speech. Defendant swayed during his conversation with Officer Trujillo and told the officer that he had had two beers. In addition, Officer Trujillo administered three field sobriety tests, each of which Defendant was unable to complete successfully. These facts are substantial evidence that there was probable cause to believe that Defendant had been driving while intoxicated. Thus, we affirm the district court's holding that the arrest was legal.

B. Breath Alcohol Test Results

¶11 Defendant's remaining arguments all concern the district court's affirmance of the trial court's refusal to suppress the breath alcohol test results. Defendant argues that the results of the breath alcohol test should have been suppressed for three independent reasons: (1) because the test was administered incident to an unlawful arrest; (2) because the police officer failed to notify him of his right to an independent chemical test; and (3) because the police violated his statutory right to an independent test by a person of his choosing.

¶1 Trial Court's Failure to Suppress the Breath Alcohol Test Results Was Not Error Because the Arrest Was Lawful

¶12 Defendant relies on State v. Richerson, 87 N.M. 437, 441, 535 P.2d 644, 648 (Ct.App.1975) (trial court erred by admitting results of blood alcohol test when the blood was taken before a lawful arrest was made), to argue that the results of sobriety tests are inadmissible if not administered incident to a lawful arrest. We need not address this argument, however, because we hold that the police arrested Defendant lawfully. We also hold that the trial court did not err by admitting the State's evidence of breath alcohol content.

¶2 Police Substantially Complied with the Statute's Notice Reguirements

¶13 Defendant argues that the State's test results should have been suppressed because the police officer did not adequately notify him of his right to an independent chemical test. Before considering the merits of Defendant's argument, we first address the State's concern that this issue is moot because Defendant asserted the right protected by Section 66-8-109 when he asked that his own doctor be allowed to draw his blood.

a. Mootness

¶14 The State argues that the adequacy of the notice became irrelevant when Defendant did what the statute entitled him to do--request a doctor of his choosing to perform the blood test. We find this argument to be without merit. Further, we address the issue on its merits because this issue is likely to recur and because a substantial public interest will be served by deciding the issue. See Mowrer v. Rusk, 95 N.M. 48, 51-52, 618 P.2d 886, 889-90 (1980) ("A court should continue a cause ... if the court discerns a likelihood of recurrence of the same issue, generally in the framework of a 'recurring' controversy and 'public interest' in maintaining the appeal.").

¶15 In determining whether the requisite degree of public interest exists to prevent dismissal on mootness grounds, we consider among other factors, the public or private nature of the question before the court, the desirability of an authoritative determination for future guidance of public officers, and the likelihood that the question will recur in the future. See id. at 51, 618 P.2d at 889. Here, the question involves both...