Bierner v. State, Taxation and Revenue Dept., Motor Vehicle Div.
| Decision Date | 26 March 1992 |
| Docket Number | Nos. 12730,12814,s. 12730 |
| Citation | 113 N.M. 696,1992 NMCA 36,831 P.2d 995 |
| Parties | Betty BIERNER, Plaintiff-Appellant, v. STATE of New Mexico, TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Defendant-Appellee. Alrundus HART, Plaintiff-Appellee, v. STATE of New Mexico, TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
We have consolidated these two appeals on our own motion because they raise the same question: To revoke a driver's license under the Implied Consent Act, NMSA 1978, Secs. 66-8-105 to -112 (Repl.Pamp.1987), does the State have to establish that the licensee's blood alcohol content (BAC) was at least .1 percent by weight at the time the licensee was driving? We hold that it does not. The State needs to prove only that the licensee's BAC equaled or exceeded the statutory limit at the time the licensee took a blood alcohol test in accordance with the Implied Consent Act.
The Motor Vehicle Division of the Taxation and Revenue Department (MVD) revoked the licenses of both Alrundus Hart and Betty Bierner (Licensees) pursuant to Section 66-8-112 after each was arrested for driving under the influence of alcohol, in violation of NMSA 1978, Section 66-8- 102 (Cum.Supp.1991), and then given a breath alcohol test that indicated a BAC of at least .1 percent. Hart's two breath tests were administered approximately 47 minutes after he had last driven his vehicle; Bierner's test was administered approximately one hour and 18 minutes after she had last driven. Each appealed to the district court.
District Judge Albert S. Murdoch reversed the revocation of Hart's license. He found that Hart's "blood alcohol level could either rise or dec[r]ease between the time he was driving and the time the officer administered the breath alcohol tests," and held that the "blood alcohol content of the driver must relate back to the time he was actually driving and not to the time of testing in order to sustain a license revocation pursuant to NMSA Sec. 66-8-112." The State had offered no evidence relating Hart's BAC at the time of his breath tests to his BAC at the time he was driving. District Judge Gerard W. Thomson, on the other hand, sustained the revocation of Bierner's license. He held that the MVD was not required to prove Bierner's BAC at the time she was driving.
The Implied Consent Act directs law enforcement officers to administer a blood or breath test for BAC when they have reasonable grounds to believe that a person was driving while under the influence of intoxicating liquor or a drug. Sec. 66-8-107(B). The person may refuse to take the test, but such refusal is ground for revocation of the person's driver's license. See Sec. 66-8-111(A), (B). If the test is administered and indicates that the driver's BAC exceeds .1 percent by weight, the law enforcement officer who requested or directed the administration of the test must immediately serve upon the driver a written notice of revocation and of a right to a hearing. Sec. 66-8-111.1. The officer should then take the driver's license, issue a temporary license valid for 30 days, and send the MVD the seized license and a signed statement regarding the test result and reasonable grounds to arrest the driver. Id. The revocation is effective 30 days after notice of revocation. Sec. 66-8-112(A). Section 66-8-112 then provides in pertinent part as follows:
B. Within ten days after receipt of notice of revocation pursuant to Subsection A of this section, a person whose license or privilege to drive is revoked or denied or his agent may request a hearing. Failure to request a hearing within ten days shall result in forfeiture of the person's right to a hearing * * *. A date for the hearing shall be set by the director, if practical, within thirty days after receipt of notice of revocation. The hearing shall be held in the county in which the offense for which the person was arrested took place.
C. The director [of MVD] may postpone or continue any hearing on his own motion or upon application from the person and for good cause shown for a period not to exceed ninety days from the date of notice of revocation and provided that the director extends the validity of the temporary license for the period of the postponement or continuation.
D. At the hearing, the director or his agent may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers.
E. The hearing shall be limited to the issues:
(1) whether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within this state while under the influence of intoxicating liquor;
(2) whether the person was arrested;
(3) whether this hearing is held no later than ninety days after notice of revocation; and either
(4)(a) whether the person refused to submit to a test upon request of the law enforcement officer; and
(b) whether the law enforcement officer advised that the failure to submit to a test could result in revocation of his privilege to drive; or
(5)(a) whether the chemical tests were administered pursuant to the provisions of the Implied Consent Act; and (b) the test results indicated a blood alcohol content of one-tenth of one percent or more by weight if the person is eighteen years of age or older * * *.
F. The director or his designee shall enter an order either rescinding or sustaining the revocation or denial of the person's license or privilege to drive if he finds that the law enforcement officer had reasonable grounds to believe the driver was driving a motor vehicle while under the influence of intoxicating liquor or drug, that the person was arrested, that this hearing is held no later than ninety days after notice of revocation and that the person either refused to submit to the test upon request of the law enforcement officer after the law enforcement officer advised him that his failure to submit to the test could result in the revocation of his privilege to drive or that a chemical test was administered pursuant to the provisions of the Implied Consent Act and the test results indicated a blood alcohol content of one-tenth of one percent or more by weight if the person is eighteen years of age or older * * *. If one or more of the above are not found by the director, the person's license shall not be revoked.
G. A person adversely affected by an order of the director may seek review within thirty days in the district court in the county in which the offense for which the person was arrested took place. The district court, upon thirty days' written notice to the director, shall hear the case. On review, it is for the court to determine only whether reasonable grounds exist for revocation or denial of the person's license or privilege to drive based on the record of the administrative proceeding.
The statute requires that "the test results indicated a blood alcohol content of one-tenth of one percent or more by weight." Sec. 66-8-112(F). The statutory language makes no reference to BAC at the time the licensee was driving.
Licensees argue, however, that Section 66-8-112(F) should be read in light of Section 66-8-102(C), which states:
It is unlawful for any person who has one-tenth of one percent or more by weight of alcohol in his blood to drive any vehicle within this state.
Section 66-8-102(C) is one of a class of statutes enacted throughout the country which are called "per se statutes" because the criminal violation is established by the BAC without any evidence of impairment. We accept Licensees' contention that our per se statute requires a finding of the BAC at the time the defendant was driving. The uniform jury instruction promulgated by our supreme court for Section 66-8-102(C) states as essential elements of the crime:
1. The defendant drove a motor vehicle;
2. At that time, he had one-tenth of one percent or more by weight of alcohol in his blood[.] [Emphasis added.]
SCRA 1986, 14-4503 (Cum.Supp.1991). Licensees suggest that the purpose of Section 66-8-112 is to revoke the licenses of those drivers who violate Section 66-8-102(C). That being the case, in their view, a driver's license cannot be revoked unless the State proves that the BAC at the time of driving equaled or exceeded .1 percent. The BAC at the time the test is administered would thus be relevant only insofar as that BAC can be related to the licensee's BAC at the time he or she was driving. In short, Licensees ask us to read into Section 66-8-112 a requirement that is not expressed in that section but that appears in Section 66-8-102(C).
We reject Licensees' argument. Although we will read the requirements of one portion of a statute into the requirements of another portion in order to avoid an irrational construction of the statute, see Barela v. Midcon of N.M., Inc., 109 N.M. 360, 785 P.2d 271 (Ct.App.1989), we will not engage in such statutory construction when there is a plausible reason for a difference in the requirements under the two statutory provisions. See Simmons v. McDaniel, 101 N.M. 260, 680 P.2d 977 (1984). In this case, there is a reason for the difference between the criminal provisions of Section 66-8-102(C) and the license-revocation-revocation provisions of Section 66-8-112 that is more than plausible--it is compelling.
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