State v. Chakerian

• Decision Date: 14 January 2015
• Docket Number: 32,872.
• Citation: 348 P.3d 1027
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Stefan CHAKERIAN, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

348 P.3d 1027

STATE of New Mexico, Plaintiff–Appellee

v.Stefan CHAKERIAN, Defendant–Appellant.

32,872.

Court of Appeals of New Mexico.

Jan. 14, 2015.

Certiorari Granted, May 11, 2015, No. 35,121.

Hector Balderas, Attorney General, Pranava Upadrashta, Assistant Attorney General, Santa Fe, NM, for Appellee.

D. Eric Hannum, Albuquerque, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} The question presented in this case is whether a defendant who was provided with a telephone book and access to a telephone for a period of twenty to thirty minutes in the early hours of the morning, was given a reasonable opportunity to arrange for an independent chemical test pursuant to the Implied Consent Act (the Act), NMSA 1978, §§ 66–8–105 to –112 (1978, as amended through 2007). We conclude that Defendant was not afforded his statutory right under the Act. We therefore reverse the judgment of the district court and remand to the metropolitan court for further proceedings.

BACKGROUND

{2} At the bench trial in the metropolitan court before Judge Benavidez (trial court), the following facts were established. Albuquerque Police Officer Mark Aragon initiated a traffic stop of Defendant's vehicle after his dash-mounted radar indicated Defendant was traveling forty-seven miles per hour in a thirty-five mile-per-hour zone. Upon coming into contact with Defendant, Officer Aragon observed that Defendant had bloodshot, watery eyes and emitted an odor of alcohol. He asked Defendant if he had been drinking, and Defendant responded “not much.” After administering field sobriety tests, Officer Aragon concluded that Defendant was driving while under the influence of alcohol (DWI) and arrested him.

{3} Officer Aragon transported Defendant to a police substation to administer a breath alcohol (BAC) test. Before beginning the test, Officer Aragon advised Defendant of his rights and obligations under the Act. This included Defendant's right to be given an opportunity to arrange for a qualified person of his own choosing to perform a chemical test of his blood for alcohol content. See § 66–8–109(B) (directing that the law enforcement officer shall advise the person of his right to be given an opportunity to arrange for a qualified person “of his own choosing” to perform a chemical test of his blood). Because the machine at the substation delivered an error message when Officer Aragon attempted to obtain a breath sample from Defendant, he transported Defendant to the Prisoner Transport Center to administer a breath test. The BAC test measured two samples of Defendant's breath alcohol content at .12 and .11 at 3:37 and 3:40 a.m., respectively.

{4} At the Prisoner Transport Center, Officer Aragon again advised Defendant of his right to arrange for an independent test of his blood, and Defendant requested that he be afforded that right. Officer Aragon thereupon took Defendant to a table with a telephone and Yellow Pages phonebook. Defendant testified, “I don't actually know what to look up to get a blood test taken. There was nothing under phlebotomists ... I had the phone and a phonebook and I couldn't find any numbers that could actually—I mean, I didn't know what to look up.” Defendant wrote phone numbers down but he did not use any of them because, although he wanted a blood test, he felt too much time had already passed. Officer Aragon believed they were at the table for twenty to thirty minutes before the medical screening officer arrived, and Defendant was then booked into custody.

{5} Defendant objected to the admission of the BAC test results, arguing that he was not given a reasonable opportunity to arrange for an independent chemical test of his blood for alcohol as required by the Act. The objection was overruled, and the BAC test results were admitted into evidence. However, the trial court expressed its reservation in having admitted the test results. Before announcing the verdict, the trial court said:

One of the most troubling things with respect to this case is whether or not Defendant had an opportunity to take another breath, another blood test at his request. From what's been presented to me today, I mean, I just don't see, the way things happened, that he was really afforded an opportunity to have a blood test given to him.

Based on the test results admitted into evidence, the trial court found Defendant guilty of per se DWI and speeding. See § 66–8–102(C)(1) (providing that it is per se unlawful to drive a vehicle if the person has an alcohol concentration of .08 or more in the person's blood or breath within three hours of driving the vehicle). The verdict 2 notwithstanding, the trial court added:

I have really, some really big issues with the fact that I don't know that he was actually allowed to take another test that was going to be meaningful or not. I mean, I'm just not seeing it, given what was presented to me. That may be an issue that defense might want to pursue, you know, on appeal. He testified that he was just given a book and a phone. I don't know if that is meaningful or not. His actions, and he testified also, you know, ‘I didn't object strenuously,’ like I had stated earlier. I think he really did want to get the test done. I don't know that he had a real opportunity to get it done.

{6} Defendant appealed the DWI and speeding convictions to the district court. The district court affirmed the DWI conviction on a basis not raised in the trial court or argued by either party in the appeal. In its memorandum opinion, the district court asserted that even if Defendant had obtained an independent BAC test of his blood, the test results “would have had to register nearly a third lower” than the breath test results of .12 and .11 obtained by Officer Aragon. Further, said the district court, because Defendant presented no evidence that an independent test “would have demonstrated an error of such magnitude[,]” it concluded that Defendant “failed to establish prejudice and, regardless of whether the officer afforded [Defendant] a reasonable opportunity to obtain an independent test, suppression was not required.” Defendant appeals from the decision of the district court, and for the reasons stated below, we reverse.

DISCUSSION

{7} Defendant raises two issues on appeal. First, Defendant contends he was not given a reasonable opportunity to arrange for an independent test of his blood as required by Section 66–8–109(B) of the Act. Second, Defendant asserts that the district court erred in basing its decision on an issue that was not considered by the trial court or raised on appeal. In response, the State argues that no error was committed in the trial court or on appeal. In addition, the State contends that Defendant's appeal to us from the district court—his second appeal—is not an appeal as a matter of right over which we must exercise jurisdiction. Since briefing concluded in this case, we issued our opinion in State v. Carroll, 2015–NMCA–033, 346 P.3d 372, rejecting the State's jurisdictional challenge. We therefore do not address this matter further and proceed to address Defendant's arguments.

The Right to Arrange for an Independent Chemical Test

{8} The first issue we address is the right of a motorist arrested for DWI to arrange for an independent chemical test of his blood for alcohol under Section 66–8–109(B), and whether, under the circumstances, Defendant was afforded that right.

Standard of Review

{9} Prior to analyzing whether Defendant was afforded his statutory right under Section 66–8–109(B), we clarify our standard of review. Defendant asserts that the trial court's statement quoted above before admitting the breath test results into evidence (“I just don't see, the way this happened, that he was really afforded an opportunity to have a blood test given to him.”) constitutes a finding of fact. Therefore, Defendant argues that our review is limited to whether this “finding” is supported by substantial evidence.

On the other hand, the State contends that because the breath test results were admitted into evidence, we are limited to reviewing whether the trial court abused its discretion in admitting the test results. We reject both assertions.

{10} Historical facts, as found by the fact finder, are reviewed under the substantial evidence standard, whereas interpreting or applying the law to the facts is reviewed de novo. See State v. King, 2012–NMCA–119, ¶ 13, 291 P.3d 160 (stating that statutory review of the Act is under a de novo standard); State v. Vaughn, 2005–NMCA–076, ¶ 33, 137 N.M. 674, 114 P.3d 354 (interpreting provisions of the Act). Here, the historical facts set forth above are not disputed, and we construe the comments of the trial court as questioning whether, under the facts, the statute was complied with by Officer Aragon. We therefore proceed to determine de novo whether, under those facts, Defendant was deprived of his statutory right.

Analysis

{11} State v. Jones, 1998–NMCA–076, ¶ 24, 125 N.M. 556, 964 P.2d 117, is the only case examining the meaning of Section 66–8–109(B). Therein, we held that the statute “entitles arrestees to a reasonable opportunity to contact a qualified person of their choosing who may be able to perform the test.” Jones, 1998–NMCA–076, ¶ 24, 125 N.M. 556, 964 P.2d 117. We further concluded that the statute entitles “those arrested on charges of DWI to choose who will perform the independent chemical test upon them by drawing the blood, as well as to choose who analyzes the blood sample.” Id. ¶ 23.

{12} In Jones, the arresting officer read the defendant the Act advisory and administered two breath tests. Id. ¶ 4. Once the tests were completed, the defendant requested an independent blood test, and specified that he wanted his own doctor, not a blood technician on contract with the police department, to draw his blood. Id. ¶ 5. However, the officer did not allow the defendant to use a telephone, nor did the officer make any calls on the defendant's behalf. Id. Under these circumstances, we...