DeMichele v. State Taxation & Revenue Dep't Motor Vehicle Div.

• Decision Date: 03 June 2015
• Docket Number: 33,778.
• Citation: 356 P.3d 523
• Parties: Monte DeMICHELE, Petitioner–Appellant, v. STATE of New Mexico TAXATION AND REVENUE DEPARTMENT MOTOR VEHICLE DIVISION, Respondent–Appellee.
• Court: Court of Appeals of New Mexico

356 P.3d 523

Monte DeMICHELE, Petitioner–Appellant

v.STATE of New Mexico TAXATION AND REVENUE DEPARTMENT MOTOR VEHICLE DIVISION, Respondent–Appellee.

33,778.

Court of Appeals of New Mexico.

June 3, 2015.

Joan M. Waters, Albuquerque, NM, for Appellant.

Hector H. Balderas, Attorney General, Lewis J. Terr, Special Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

FRY, Judge.

{1} Petitioner Monte DeMichele appeals from the district court's order denying his petition for restoration of his driver's license. This Court, having reviewed the information presented at two evidentiary hearings held by the district court on this issue, concludes that the district court abused its discretion in determining that Petitioner failed to meet the “good cause” standard required for restoration pursuant to NMSA 1978, Section 66–5–5(D) (2011). Accordingly, we reverse the district court and remand for restoration of Petitioner's license.

BACKGROUND

{2} Between 1990 and 2007, Petitioner was convicted six times of driving while intoxicated (DWI). The last of these arrests occurred on August 17, 2005. On December 9, 2005, an interlock device was placed in Petitioner's vehicle. On August 8, 2013, Petitioner requested restoration of his driver's license in accordance with Section 66–5–5(D). Two evidentiary hearings were held in this matter, on September 25, 2013, and March 19, 2014, the details of which are discussed below. At the conclusion of the first hearing, the district court postponed making a decision until Petitioner could provide six more months of interlock records. At the conclusion of the second hearing, the district court denied the petition for restoration, notwithstanding the Motor Vehicle Division's support in favor of restoration.

{3} At the first hearing on the petition for restoration, Petitioner testified as to his sobriety, his participation in Alcoholics Anonymous (AA) for the last eight years, and the fact that he has had no violations on his interlock device. Petitioner also testified that he worked with a personal counselor, completed all programs following his arrest, and changed his associations and his way of life to avoid his “triggers.” In support of his request for restoration, Petitioner submitted letters of support from a number of people, including his employer, and interlock records from December 9, 2010, until February 22, 2013.

{4} The State in its answer, and the district court at the hearing, expressed some concern over the number of refusals to retest indicated in Petitioner's interlock records. Petitioner submitted a letter from the interlock monitoring company explaining that the most common explanations for a refusal to retest are: (1) “that the driver was warming up the car in the morning, went back into their house and didn't get to retest in time”; or (2) “that they leave their vehicle running while running in somewhere to conduct an errand or other business and not having the knowledge that the interlock was requesting a test.” Petitioner testified that “sometimes [he would] leave the ignition on, depending on the customer that [he was] speaking with, because some of them walk [him] out to [his] vehicle[.]” The letter from the interlock company explained that it does “not consider a retest refusal to be suspicious, unless it is for a prolonged period of time usually exceeding [eight to ten] minutes OR that all retests from the initial test to ignition off have been ignored.” The State conceded that it did not know precisely how the refusals worked and indicated that it was satisfied with Petitioner's explanation.

{5} At the conclusion of the hearing, the district court asked Petitioner if he thought “that having the interlock is a useful tool for [him] to really avoid drinking and driving[.]” Petitioner acknowledged that the interlock device had been a useful tool, “especially for the first few years” when he was “trying to build tools and things like that to keep [him] away from [his] bad decisions that [he] had made in [his] past[.]” However, he testified that he now had “different avenues and [he] trust[s] [him]self.”

The district court then went on to conclude the hearing by stating:

Well, you know, you've done a lot of good, there's no question you've made—you've worked hard[; ]you have a lot of recommendations here from people who will attest to your new character and your hard work and your family life. What I'm balancing is, you've had about eight good years, I suppose, but you had about 30 pretty bad years—

....

—you know. And I think I'd prefer to see a little more time go by to make sure the good years stay good years because I think the interlock does you some good, as you have attested to.

So what I want to do is, I'm going to continue this and reschedule it again for sometime in January. Come back and we'll look at it and see where things are. If everything is the same, then I think you're going to have a good chance to get your license restored.

{6} The hearing reconvened about six months after the first hearing. At this hearing, Petitioner submitted interlock records for the period from September 9, 2013, through February 7, 2014. The district court asked the State for any relevant information from the newly submitted interlock records, and the State indicated that there were “three indications of pass greater than zero.” However, the State explained that these occur when “the machine detects alcohol from some source, and it can be ambient in the air.” The State went on to explain:

So it could be anything from—I don't know what the word would be—scant background alcohol sensation or sensing alcohol from some source up to .024, because anything greater than .025, regulations require that they list that as a violation.

....

In other words, I don't know that this particular company can do a printout, but I've seen details of those things where sometimes the levels are at an extremely insignificant level, like .000 something.

When asked by the district court to explain the low level readings, Petitioner stated that, based on his conversation with a person at the interlock monitoring company, it could be the result of his being an insulin-dependent diabetic and that the low level readings were .00024 and .00026. The State also pointed out to the district court that the substance abuse evaluation that had been prepared at the Court's request confirmed that Petitioner is an insulin-dependent diabetic. In addition, the State pointed out that the substance abuse evaluation¹ indicated that Petitioner was truthful and not dependent on alcohol. The district court again questioned Petitioner about the number of refusals in his interlock records.

{7} In addition, the district court again made remarks about the interlock device being a significant tool:

I just think that in your case, like in a lot of other cases, the one significant tool that has been brought into your situation that you didn't have during those [fifteen] to [seventeen] years when you were drinking and driving was the ignition interlock device. That seems, to me, to be the one thing that has helped more than anything else. Since you did that, you haven't had any arrests for drinking and driving.

....

So it's hard for me to understand why I would want to take away the one tool that seems to have resulted in the most success.

The district court then denied Petitioner's petition for restoration, stating:

I'm glad you're doing well, but I'm afraid I'm going to deny your petition. There is very little room for error. You continue to have some readings of alcohol. The reason for that is all speculation. I don't know why it's in there. I recognize that they are low readings, but they're there, and with somebody with six DWI convictions, I mean, that's a lot of DWI convictions, and you're asking me to take away the one tool that I think has really helped you not get any more DWI convictions, and I just don't see, based on the record before me, that you have established good cause that would allow me to do that. So your petition is denied.

Petitioner appeals.

DISCUSSION

{8} On appeal, Petitioner contends that the district court abused its discretion in its determination that Petitioner failed to demonstrate “good cause” for restoration of his license. The State offers no opposition, agreeing that the district court abused its discretion in denying Petitioner's request. However, this Court is not bound by the State's concession. See State v. Caldwell, 2008–NMCA–049, ¶ 8, 143 N.M. 792, 182 P.3d 775 (“This Court ... is not bound by the [s]tate's concession and we conduct our own analysis[.]”). We note that

[a]lthough a confession of error by the Attorney General is entitled to great weight, it does not relieve this [C]ourt of the obligation to perform our judicial function. The public interest in criminal appeals does not permit their disposition by party stipulation. We must therefore independently review the proceedings below to insure that the error confessed is supported by the record.

State v. Maes, 1983–NMCA–073, ¶ 7, 100 N.M. 78, 665 P.2d 1169 (internal quotation marks and citation omitted), abrogated on other grounds by State v. Armijo, 2005–NMCA–010, ¶ 27, 136 N.M. 723, 104 P.3d 1114. While we acknowledge that this is not a criminal appeal, there is a significant public interest in alleviating drunk driving such that, where this Court is being asked to reverse the district court's denial of restoration of a driver's license to a person with six DWI convictions, it would be imprudent for this Court to rely solely on the State's stipulation and to decline to conduct our own independent review of the record prior to reversing the district court.

I. Standard of Review

{9} Given that “good cause” for restoration has never been addressed by a formal opinion of this Court or the New Mexico Supreme Court, we must first determine what standard of review this Court applies in reviewing the decision of the district court. To do so, we begin by looking...