Fugere v. State, Taxation and Revenue Dept., Motor Vehicle Div.

• Decision Date: 06 April 1995
• Docket Number: No. 15649,15649
• Parties: Albert R. FUGERE, Petitioner-Appellant, v. STATE of New Mexico, TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 216

897 P.2d 216

120 N.M. 29

Albert R. FUGERE, Petitioner-Appellant, v. STATE of New Mexico, TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Respondent-Appellee.

No. 15649.

Court of Appeals of New Mexico.

April 6, 1995.

Certiorari Denied May 31, 1995.

[120 N.M. 31] Dan Cron, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, Santa Fe, for petitioner-appellant.

Tom Udall, Atty. Gen., Judith Mellow, Sp. Asst. Atty. Gen., DWI Legal Section, Santa Fe, for respondent-appellee.

OPINION

FLORES, Judge.

The opinion filed February 28, 1995 is withdrawn and the following substituted therefor.

Albert R. Fugere appeals from an order of the district court affirming the decision of the Motor Vehicle Division of the Taxation and revenue department (mvd) revoking his driver's license for one year for refusing to submit to a breath test under the New Mexico Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (Repl.Pamp. 1987 & Cum.Supp.1993) (the Act). We consolidate Fugere's issues on appeal and address them as follows: (1) whether Fugere's actions constituted a refusal to take a breath test and, if so, whether Fugere cured that refusal with a subsequent consent; (2) whether Fugere's due process rights were violated; and (3) whether the hearing officer acted arbitrarily and capriciously in revoking Fugere's driver's license. We affirm.

Before turning to the facts of the appeal, we first address Fugere's motion to strike certain exhibits, and any reference to them, which he contends were introduced as evidence for the first time on appeal. Fugere filed a motion to strike in response to the MVD's alleged improper attempt to supplement the record. The motion was held in abeyance pending submission of the case to a panel. Specifically, Fugere contends that a document from the Scientific Laboratory Division and a portion of the Driving While Intoxicated Prosecutor's Manual referred to by the MVD in its answer brief should be stricken because they were not introduced into evidence during any prior proceedings. See Baca v. Swift & Co., 74 N.M. 211, 215, 392 P.2d 407, 411 (1964). After reviewing the record of the administrative hearing, we grant Fugere's motion and strike the exhibits. We note that neither of the exhibits referred to were relied upon by this Court in deciding this case on appeal. See State ex rel. Alleman v. Shoats, 101 N.M. 512, 517, 684 P.2d 1177, 1182 (Ct.App.1984) (matters not of record will not be considered on appeal).

FACTS

The following facts were established at the administrative hearing. On November 28, 1993, Fugere was stopped by Officer Roger Romero of the Santa Fe Police Department. Officer Romero stopped Fugere for failing to maintain his lane, accelerating rapidly, clipping a median, weaving, and nearly causing an accident by failing to yield to an oncoming vehicle. Fugere admitted to drinking three beers. After noticing a strong odor of alcohol on Fugere's breath, his blood-shot watery eyes, and his slurred speech, Officer Romero administered a field sobriety test. Based on the results of the field sobriety test, Officer Romero placed Fugere under arrest for driving while intoxicated. Fugere was then asked to take a breath test to determine his blood-alcohol content. Officer Romero advised Fugere that under the Act, he was required to submit to a breath test and that if he refused to take the test, he could lose his license for a period of one year.

At that point, Fugere refused to take the test on the RBT III Alco-Sensor (RBT) located in Officer Romero's vehicle, but stated that he would agree to take the breath test on the stationary breathalyzer machine located at the police station. Officer Romero advised Fugere that Fugere could not select what test was to be administered, but that if he took the RBT test, he could take any additional tests thereafter, if he chose to do so. Fugere was offered the breath test on the RBT several times but he continually responded that he wanted to take the test on the machine at the police station because he did not trust the RBT. Shortly thereafter, Officer Romero transported Fugere to the Adult Detention Center and, once again, offered Fugere the test on the RBT. Fugere again refused, stating that he wanted to take the test on the machine at the police station. Determining that Fugere's responses constituted a refusal, Officer Romero proceeded to cite, jail, and process Fugere. Fugere never took a chemical breath test to determine his blood-alcohol content.

Testimony established that the distance from the point where Fugere was stopped to the Adult Detention Center, where Fugere was incarcerated, was about two and a half miles, or approximately five minutes away. Also, Officer Romero testified that the Adult Detention Center and the police station were very close, approximately one minute apart. Officer Romero confirmed that Fugere was under his observation from the time Fugere was stopped to the time he was incarcerated. There was also testimony that there was a stationary breathalyzer machine at the police station and the Adult Detention Center. Officer Romero testified that he had never used the model at the detention center and was not certified to use it.

At the license revocation hearing, Fugere was qualified as an expert witness in chemical testing for alcohol and physiology for alcohol in the human body. Fugere testified concerning the factual basis for his opinion that the RBT was unreliable for evidentiary purposes. The hearing officer found that: (1) Officer Romero had reasonable grounds to believe that Fugere was driving a motor vehicle under the influence of intoxicating liquor or drugs; (2) Officer Romero arrested Fugere; (3) the hearing was held not later than ninety days after the notice of revocation; and (4) Fugere refused to submit to a chemical test after being advised that failure to do so could result in the revocation of his license for one year. The hearing officer determined that Fugere's experience on the reliability, or lack thereof, of breath test devices was irrelevant because Fugere never took the breath test requested of him.

Fugere's driver's license was revoked for a period of one year. Fugere appealed to the First Judicial District Court which affirmed the license revocation in an Order of Judgment. Fugere appeals that order.

DISCUSSION

I. Applicable Statutes

Fugere was stopped by Officer Romero on November 28, 1993, and we apply the law in effect at that time. The Act was amended in 1993, but the amendments did not become effective until January 1, 1994. We do not decide whether the outcome would be the same under the most recent amendments to the Act. The former and applicable Act provided that "[a]ny person who operates a motor vehicle within this state shall be deemed to have given consent ... to chemical tests of his breath or blood, as determined by a law enforcement officer...." Section 66-8-107(A) (Repl.Pamp.1987) (emphasis added). "A test of blood or breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle within this state while under the influence of intoxicating liquor or drug." Section 66-8-107(B) (emphasis added). If the motorist refuses to take the test designated by the officer, then the director of the MVD can revoke the motorist's driver's license for one year. Section 66-8-111(B). The Act further provides that in addition to any test performed at the direction of a law enforcement officer, a person being tested must also be given an opportunity to arrange for a chemical test by any qualified person of his choosing. Section 66-8-109(B).

II. Standard of Review

In reviewing the hearing officer's decision to revoke a person's driver's license, the district court determines "only whether reasonable grounds exist for revocation ... of the person's license ... based on the record of the administrative proceeding." Section 66-8-112(G). Reasonable grounds include:

(1) the law enforcement officer must have had reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor; (2) the person must have been under arrest; (3) the person must have refused to submit to a chemical test upon request of the law enforcement officer[;] and (4) the law enforcement officer must have advised that the failure to submit to a test could result in revocation of his privilege to drive.

State, Dep't. of Transp., Motor Vehicle Div. v. Romero, 106 N.M. 657, 658-59, 748 P.2d 30, 31-32 (Ct.App.1987) (quoting State, Dep't. of Motor Vehicles v. Gober, 85 N.M. 457, 459, 513 P.2d 391, 393 (1973)). The findings made by the hearing officer at the revocation hearing establish that reasonable grounds existed for the revocation of Fugere's driver's license.

The standard of review for an appeal from an administrative agency is whether there is substantial evidence in the record as a whole to support the agency's decision. Romero, 106 N.M. at 659, 748 P.2d at 32. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Rutter & Wilbanks Corp. v. Oil Conservation Comm'n, 87 N.M. 286, 290, 532 P.2d 582, 586 (1975). The determination of whether Fugere refused "to submit to a breath test is a question of fact, not of law." Romero, 106 N.M. at 659, 748 P.2d at 32. Since this is a factual question, the hearing officer's determination that Fugere's acts constituted a refusal may only be overturned if not supported by the record as a whole. Id. at 660, 748 P.2d at 33.

III. Refusal to Take Test

Fugere contends that his actions did not constitute a refusal to take a breath test. He argues that by repeatedly requesting a breath test on the machine at the police station, he was not refusing to take a chemical breath test. This argument is without merit....