State v. Neal, 26,879.

CourtCourt of Appeals of New Mexico
Citation2008 NMCA 008,176 P.3d 330
Docket NumberNo. 26,879.,26,879.
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Richard NEAL, Defendant-Appellant.
Decision Date06 November 2007
176 P.3d 330
2008 NMCA 008
STATE of New Mexico, Plaintiff-Appellee,
Richard NEAL, Defendant-Appellant.
No. 26,879.
Court of Appeals of New Mexico.
November 6, 2007.
Certiorari Denied, No. 30,773, January 4, 2008.

[176 P.3d 332]

Gary K. King, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Appellee.

Wagner, Ford & Associates, Kenneth R. Wagner, L. Helen Bennett, Albuquerque, NM, for Appellant.


SUTIN, Chief Judge.

{1} Defendant Richard Neal argues that: (1) the State's nolle prosequi of his charges from magistrate court and subsequent refiling of the charges in district court were done for the improper purpose of avoiding the running of the six-month rule, and thus his charges should be dismissed; and (2) there was insufficient evidence to convict him of driving while intoxicated (DWI). We are not persuaded by either argument and affirm.


{2} Defendant was charged in magistrate court on November 4, 2005, with aggravated DWI, contrary to NMSA 1978, § 66-8-102 (2005) (amended 2007), failure to maintain a traffic lane, contrary to NMSA 1978, § 66-7-317 (1978), and impeding traffic, contrary to NMSA 1978, § 66-7-305 (2003). On November 16, Defendant filed a waiver of appearance in magistrate court, which commenced the running of the six-month rule in magistrate court, pursuant to Rule 6-506(B)(1) NMRA. During a subsequent pretrial conference, Defendant moved to suppress evidence. Before the magistrate court ruled on the motion, the State filed a nolle prosequi on January 7, 2006, and, filed the same charges in district court on January 19, 2006.

{3} When Defendant's bench trial occurred on May 26, 2006, in district court, he moved to dismiss the charges, arguing that the six-month rule began to run on November 16, 2005, in magistrate court and had expired on May 17, 2006. Defendant argued that allowing the State to file a nolle prosequi and refile charges in district court after Defendant filed a motion to suppress allows the State to punish Defendant for lawfully filing a motion to suppress. Defendant also argued that it is more expensive for him and for the courts to allow the procedure used by the State, which is contrary to the purpose of the Rules of Criminal Procedure. See Rule 5-101(B) NMRA (stating that it is the purpose of the Rules of Criminal Procedure to eliminate unjustified expense and delay). The district court denied the motion and noted that it had stated many times before that it would dismiss cases where the State

176 P.3d 333

had not filed the nolle prosequi within sixty days of when the rule began to run in magistrate court, which was not the circumstance in the case at hand.

{4} On the merits of the charges, Officer Andy Munoz testified that he observed Defendant's vehicle traveling about five miles an hour below the posted speed limit and he also saw the vehicle cross over the shoulder line three times. The traffic stop occurred at 1:01 a.m. When Officer Munoz pulled Defendant over, he noticed that Defendant smelled of alcohol and had bloodshot, watery eyes. Defendant told the officer that he had a couple of drinks. The officer had Defendant perform standardized field sobriety tests, including the walk-and-turn test and the oneleg stand test. According to the officer, Defendant failed to properly perform the walk-and-turn test: he took six steps instead of the eighteen total steps he was instructed to take, he "failed to maintain the stance" during the instruction phase, and he moved his arms away from his side even though he was instructed to keep his arms down at his side. During the one-leg stand test, according to the officer, Defendant exhibited two signs of intoxication; swaying noticeably and moving his hands away from his side.

{5} The officer arrested Defendant, took him to the police station, and read Defendant the Implied Consent Advisory. Defendant remained silent when asked if he agreed to provide a breath sample, and then requested to read the Implied Consent Advisory. After the officer ascertained from Defendant that he understood what the officer had read, the officer interpreted Defendant's request to read the advisory and his failure to respond to the officer with "yes" or "no" as a refusal to provide a breath sample and took Defendant to jail.

{6} Defendant also testified, stating that he was surprised when the officer told him that he was pulled over for "minimum speed," that he did not think he was driving impaired, that he had a bad back and he told the officer so, which is why he failed the one-leg stand test, and that he did not remember the walk-and-turn test. Defendant testified that he was calling his wife when he was pulled over, which was likely why he was weaving. Defendant testified that he had consumed maybe four beers the previous day, between 3:30 and 9:00 p.m. Defendant also testified that he did not refuse to take the breath test, but that he told the officer that he did not understand the Implied Consent Advisory and wanted to read it himself.

{7} The district court found Defendant guilty of DWI and failure to maintain a traffic lane. The impeding traffic charge was dismissed. Defendant appeals both the denial of his motion to dismiss on six-month rule grounds and his conviction of DWI on substantial evidence grounds. We address both arguments in this opinion.


The Prosecutor Presented a Valid Reason for Filing a Nolle Prosequi and Thus, the Six-Month Rule Was Not Violated

{8} Whether the State properly filed a nolle prosequi is a mixed question of law and fact, which we review de novo, because we are focusing on whether there was a valid, legal justification for the nolle prosequi. State v. Kerby, 2001-NMCA-019, ¶ 15, 130 N.M. 454, 25 P.3d 904.

{9} In misdemeanor DWI cases, both the magistrate court and the district court have concurrent jurisdiction. State v. Ahasteen, 1998-NMCA-158, ¶ 21, 126 N.M. 238, 968 P.2d 328. "Prosecuting attorneys ... have the discretion to choose in which court to bring a criminal action." Id. ¶ 22. Further, for "good and sufficient reasons, a criminal prosecution may be terminated and subsequently reinstituted," even if the prosecution is reinstituted in a different court with concurrent jurisdiction. State ex rel. Delgado v. Stanley, 83 N.M. 626, 627, 495 P.2d 1073, 1074 (1972); State v. Carreon, 2006-NMCA-145, ¶ 7, 140 N.M. 779, 149 P.3d 95. However, when a prosecutor follows such a course of procedure for the purpose of delay or to circumvent operation of the six-month rule, we "look past the form to the substance and hold that the operative date which commenced the running of the period laid down in the rule was the original [date in the first prosecution]." Delgado, 83 N.M. at 627-28, 495 P.2d at 1074-75. If a defendant claims that the State has filed a nolle prosequi

176 P.3d 334

and reinstituted charges in order to circumvent the six-month rule, then the burden is on the State "to demonstrate its good faith and show that it did not take its actions to circumvent the six-month rule or for other bad reasons." State v. Bolton, 1997-NMCA-007, ¶ 14, 122 N.M. 831, 932 P.2d 1075.

{10} In State v. Heinsen, 2005-NMSC-035, ¶ 23, 138 N.M. 441, 121 P.3d 1040, our Supreme Court suggested that prosecutors file a nolle prosequi after an adverse ruling on a motion to suppress in magistrate court. The Court held that the State has no statutory or constitutional ground to appeal a suppression order of a magistrate court, and the Court refused to apply the "practical finality exception to the final judgment rule" because "the State may obtain judicial review of such a suppression order by filing a nolle prosequi to dismiss some or all of the charges in the magistrate court after the suppression order is entered and refiling in the district court for a trial de novo." Id. ¶ 1.

{11} In Heinsen, the State had not actually filed a nolle prosequi, but rather had attempted to appeal from the grant of a motion to suppress in magistrate court. Id. ¶ 2-3. Stating that "[a]t any time prior to trial, the State may dismiss a case without prejudice by filing a nolle prosequi[,]" id. ¶ 23, the Court still recognized that this procedure might result in claims that the six-month rule is being circumvented.

The district court may inquire into the reasons for the dismissal to resolve the conflict between the policies underlying the six-month rule and the prosecutor's discretion to decide where to prosecute criminal charges and otherwise manage the prosecution. Ordinarily, however, filing a nolle prosequi ends the previous proceeding and allows a new six-month period to run provided there was a reasonable basis to file the nolle prosequi. When the State has such a basis, the trial court should grant the dismissal and permit a new six-month rule to run.

In light of the State's strong interest in enforcing its statutes and managing criminal prosecutions, we hold that a new six-month rule period should begin to run when the State files a nolle prosequi following a suppression order by a magistrate court and refiles, in district court. If the State can establish that it has acted in order to preserve its right to appeal an order suppressing evidence, which is substantial proof of a material fact in the proceeding, and that it is not doing so for the purpose of delay, the six-month rule should commence six months after the date of arraignment, or waiver of arraignment[] on the indictment or information[,] or under any other applicable provision of Rule 5-604.

Id. ¶¶ 26-27 (internal citations omitted).

{12} In the case at hand, the State argued below that the nolle prosequi was filed under the dictates of Heinsen, because Defendant filed a motion to suppress. Defendant argues that Heinsen does not apply because the magistrate court had not granted Defendant's motion to suppress at the time that the State filed its nolle prosequi. Defendant argues that instead,...

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