Ryan v. State
| Decision Date | 19 June 2012 |
| Docket Number | NO. 30,450,30,450 |
| Parties | STEPHEN RYAN, Appellant-Respondent, v. STATE OF NEW MEXICO TAXATION and REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Appellee-Petitioner. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Gary K. King, Attorney General
Julia Belles, Special Assistant Attorney General
for Appellee
Sanchez, Mowrer & Desiderio, P.C.
Frederick M. Mowrer
Albuquerque, NM
Patrick J. Griebel, P.C.
James Burns
Albuquerque, NM
for Appellant
The State of New Mexico Taxation and Revenue Department, Motor Vehicle Division (MVD) filed a writ of certiorari asking this Court to review the district court's order reversing the administrative revocation of the driver's license of Respondent Stephen Ryan (Driver). We granted the petition, and we now reverse the district court's order.
The facts are not in dispute. On the evening of June 28, 2009, Sergeant Kent was patrolling an area of Rio Rancho when he spotted Driver's car as it crossed the right edge line of the road into a bike path and then swerved back to the left, crossing the dotted line on the left side of the lane marker. Kent initiated a traffic stop. After he pulled over, Driver inadvertently backed his car toward the officer's, requiring Kent to put his vehicle in reverse to avoid being hit. Kent then approached Driver's vehicle and noted that Driver's eyes were watery and bloodshot, and he detected an odor of alcohol coming from the vehicle. Kent also testified that Driver seemed "out of sorts" and that his speech was slurred.
During field sobriety tests (FSTs), Driver stated at times that he could not hear or understand the instructions being given. Driver said he also experienced anxiety and panic at that point, manifesting itself in a constricted field of vision, difficulty hearing, and a shortness of breath. Driver also had a problem with balance during the FSTs. Kent placed Driver under arrest at 2:10 a.m. Police records show that four minutes earlier, at 2:06 a.m., a call was made for a tow truck, but Kent testified that he did not make that call and that he placed Driver under arrest based on Driver's performance on the FSTs. Driver was taken to the police station and was asked at 2:25 a.m. if he would submit to a blood-alcohol breath test. He refused, and Kent read Driver the implied consent warning informing him that his license could be revoked based on his failure to consent to the breath test. Driver then requested the opportunity to arrange a blood test in the alternative; Kent agreed and provided Driver with a space that contained a telephone and phone book. Around 3:45 a.m., Driver stated a desire to take the breath test, more than an hour after he had refused it. Kent turned down the request.
An MVD hearing officer issued an eight-page, single-spaced statement of findings. The hearing officer determined that the call for the tow truck did not constitute an unlawful arrest. The hearing officer further found that Driver failed to demonstrate that he cured his first refusal to take the breath test by either his requestfor an alternative blood test or by agreeing to the breath test more than an hour after refusing the first one. Driver appealed the decision to the district court. The district court reversed based on its determination that (1) Kent's request for the tow truck made the arrest unlawful and (2) Driver recanted his refusal to take the breath test by agreeing to be tested eighty minutes after being read the implied-consent warning by Kent. The district court determined that substantial evidence did not exist for the hearing officer's revocation order. This appeal by MVD followed.
We apply the standard of review used by the district court. See Romero v. Rio Arriba Cnty. Comm'rs, 2007-NMCA-004, ¶ 12, 140 N.M. 848, 149 P.3d 945 (). "On review, it is for the [district] 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." NMSA 1978, § 66-8-112(H) (2003). We are to determine whether "there was sufficient evidence to uphold the administrative agency's decision." Groendyke Transp., Inc. v. State Corp. Comm'n, 101 N.M. 470, 476, 684 P.2d 1135, 1141 (1984). "It is not the function of the [district] court to retrythe case" during its appellate review of an administrative hearing. Id. "The standard of review for appeals from administrative agencies is whether substantial evidence in the record as a whole supports the agency's decision." Dep't of Transp., Motor Vehicle Div. v. Romero, 106 N.M. 657, 659, 748 P.2d 30, 32 (Ct. App. 1987). "Substantial evidence is evidence that a reasonable mind would recognize as adequate to support the conclusions reached by a fact-finder." N.M. Mining Ass'n v. N.M. Water Quality Control Comm'n, 2007-NMCA-010, ¶ 30, 141 N.M. 41, 150 P.3d 991. In reviewing an administrative decision for substantial evidence, "[t]he question is not whether substantial evidence exists to support the opposite result, but rather whether such evidence supports the result reached." Las Cruces Prof'l Fire Fighters & Int'l Ass'n of Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. The district court was obligated to defer to the hearing officer's factual and credibility determinations. See State Bd. of Psychologist Exam'rs v. Land, 2003-NMCA-034, ¶ 5, 133 N.M. 362, 62 P.3d 1244. "Where a difference or conflict in the evidence exists, a court should not substitute its opinion for that of the administrative agency." Romero, 106 N.M. at 659, 748 P.2d at 32. We presume that an agency's determination is correct. See id.
MVD first argues that the hearing officer's finding of a lawful arrest issupported by substantial evidence and that the district court erred in finding that Driver was arrested once a request for a tow truck was made. Whether Driver was lawfully arrested is a key issue because one of the elements MVD must prove in order to revoke a driver's license for refusal to take a breath test is that the person was arrested. See § 66-8-112(F)(2). Driver contends that the arrest was not lawful because it was preceded by an unlawful detainer or seizure. He argues that once a tow truck was called, he was seized and under arrest before police officers had established probable cause to do so.
An arrest occurs whenever a police officer restrains an individual's freedom to leave the scene. See State v. Harbison, 2007-NMSC-016, ¶ 11, 141 N.M. 392, 156 P.3d 30. "Our courts have held that a restraint on a person's freedom . . . can result either from the application of physical force or by a showing of authority." Id. "When determining whether a person is seized[,] we consider all of the circumstances surrounding the incident in order to determine whether a reasonable person would have believed that he [or she] was not free to leave." State v. Jason L., 2000-NMSC-018, ¶ 15, 129 N.M. 119, 2 P.3d 856 () (internal quotation marks and citation omitted). In determining whether a reasonable person would feel free to leave, we look at the conduct of police, the "person of the individual citizen," and the physical surroundings at the scene. Id.
In the case before us, we must determine whether the district court was correct in determining that the calling of a tow truck resulted in the premature seizure of Driver, rendering his arrest unlawful. We begin with Driver's legal arguments for his position that the calling for a tow truck "is proof of a pre-investigation determination of arrest." Driver provides one legal citation for the proposition that the calling of a tow truck constitutes an arrest: Boone v. State, 105 N.M. 223, 227, 731 P.2d 366, 370 (1986) (), limited on other grounds by State v. Sims, 2010-NMSC-027, ¶ 12, 148 N.M. 330, 236 P.3d 642. However, Boone said nothing about the seizure implications of a police call for a tow truck; it merely held that it is unlawful for an intoxicated person to steer a vehicle being towed by a motor vehicle. See id. at 226, 731 P.2d at 369. Driver cites to no authority, and we have found none, for the idea that a call for a tow truck without the knowledge of the arresting officer or the eventual arrestee constitutes a seizure such that it rises to the level of an arrest requiring probable cause. Driver also cites to State v. Jones, 2002-NMCA-019, 131 N.M. 586, 40 P.3d 1030, to support his contention that "any tow request before completion of all the standard [FSTs] makes the arrest unlawful." Jones, which was abrogated by State v. Bomboy, 2008-NMSC-029, 144 N.M. 151, 184 P.3d 1045, stands for the general proposition that warrantless seizures arepresumed unreasonable, Jones, 2002-NMCA-019, ¶ 11, but our Supreme Court, in that case dealing with evidentiary issues, was silent on whether the calling of a tow truck constitutes a seizure. See Grygorwicz v. Trujillo, 2006-NMCA-089, ¶ 9, 140 N.M. 129, 140 P.3d 550 (). We conclude that there is little...
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