State v. Richerson

Decision Date12 March 1975
Docket NumberNo. 1599,1599
Citation87 N.M. 437,1975 NMCA 27,535 P.2d 644
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Jeffrey Howard RICHERSON, Defendant-appellant.
CourtCourt of Appeals of New Mexico
OPINION

SUTIN, Judge.

Defendant was convicted of homicide by vehicle while driving in a reckless manner contrary to §§ 64--22--1 and 64--22--3, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2). He appeals. We reverse.

A. The blood test admitted in evidence was reversible error.

Defendant was acquitted of homicide by vehicle while driving under the influence of intoxicating liquor. Nevertheless, evidence of intoxication bears upon the question of whether defendant was guilty of reckless driving and is a circumstance to be considered by the jury in deciding the issue. State v. Sisneros, 42 N.M. 500, 82 P.2d 274 (1938).

On the night of July 1, 1972, the fatal accident occurred on Diamond Drive west of 38th Street in Los Alamos, New Mexico. Shortly after the accident, defendant was taken in an ambulance to the Los Alamos Medical Center. At about 11:15 p.m. that night, a pathologist was requested by a police officer and a surgeon at the Medical Center to do a blood alcohol test. After the request from the police officer, the pathologist proceeded to draw the blood from defendant. The police officer had not consulted with or talked to defendant before the test was made, nor was he called to testify in this case.

Defendant had a severely broken leg, miscellaneous bruises and cuts, and an unresolved question of fracture or dislocation of the left elbow and a question of whether he received head injuries. The pathologist testified that he talked to defendant, but no inquiry was made of the conversation. He was asked if defendant was conscious. He answered:

He was responsive, I can't really say that he really understood what I was saying.

The pathologist did not request permission to take a blood sample, nor did he indicate that defendant knew the test was being taken.

It is undisputed that defendant was not under arrest; that neither defendant nor any member of his family consented to the doctor's blood test or the release thereof to the district attorney's office. There is no evidence that defendant did or did not object to the blood test nor any evidence that defendant was under the influence of intoxicating liquor, nor any evidence that probable cause existed to make a search.

Defendant moved to suppress the results of the blood test on two grounds: (1) that consent was not obtained after arrest pursuant to the 'Implied Consent Act', and (2) lacking consent was a violation of defendant's constitutional rights.

We agree on both grounds.

(1) Implied Consent Act

Section 64--22--2.6(A), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2) of the 'Implied Consent Act' provides that a

. . . person who operates a motor vehicle within this state shall be deemed to have given consent . . . to a chemical test or tests of his . . . blood for the purpose of determining the alcoholic content of his blood, if arrested for any offense . . . committed while the person was driving . . . while under the influence of an intoxicating liquor. (Emphasis added)

The consent provided in § 64--22--2.6 is one which implies consent if the person is arrested.

Section 64--22--2.8 of the same Act provides:

Any person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by section 64--22--2.6 NMSA 1953, and the test or tests designated by the law enforcement officer may be administered. (Emphasis added)

Section 64--22--2.11 provides:

A. If a person under arrest refuses upon request of a law enforcement officer to submit to chemical tests designated by the law enforcement agency as provided in section 64--22--2.6 NMSA 1953, none shall be administered.

B. The commissioner, upon receipt of a sworn report of a law enforcement officer that he had reasonable grounds to believe the arrested person had been driving . . . while under the influence of intoxicating liquor and that, upon his . . . being advised that failure to submit could result in revocation of his privilege to drive, shall revoke the person's New Mexico driver's license . . . for a period of one (1) year. . . . (Emphasis added)

Paraphrasing, these provisions in essence declare that the driver of a motor vehicle in this state: (1) impliedly consents to a blood alcohol test, (2) when arrested for any offense, (3) allegedly committed while under the influence of intoxicating liquor, (4) which implied consent cannot be withdrawn under certain circumstances, (5) and upon refusal, no test shall be administered, but the driver's license can be revoked.

Under a similar statute, the Supreme Court of Washington, in State v. Wetherell, 82 Wash.2d 865, 514 P.2d 1069, 1073 (1973), wrote:

Almost without exception, each court considering the matter held a lawful arrest to be the essential introductory step to implied consent provisions. Results adduced from sobriety tests not preceded by such an arrest or by actual consent were condemned and held to be inadmissible evidnece. (Citations omitted).

Our current implied consent statute compels a like conclusion.

We add to the citations of Wetherell, People v. Superior Court of Kern County, 6 Cal.3d 757, 100 Cal.Rptr. 281, 493 P.2d 1145 (1972); People v. Todd, 7 Ill.App.3d 617, 288 N.E.2d 512 (1972); Bailey v. City of Tulsa, Okla.Cr., 491 P.2d 316 (1971); State v. Brunner, 211 Kan. 596, 507 P.2d 233 (1973); Holland v. Parker, 354 F.Supp. 196 (D.C.S.D.1973). See, In Re McCain, 84 N.M. 657, 506 P.2d 1204 (1973); State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973).

The trial court erred in not suppressing the results of the defendant's blood alcoholic test under the 'Implied Consent Act'.

(2) Constitutional Rights

Two constitutional questions arise. (1) The privilege of any person not to 'be compelled in any criminal case to be a witness against himself' under the Fifth Amendment to the Constitution of the United States, and (2) 'The right of people to be secure in their persons . . . against unreasonable searches and seizures . . .' under the Fourth Amendment to the Constitution of the United States. Article II, Section 10 of the New Mexico Constitution provides that 'The people shall be secure in their persons . . . from unreasonable searches and seizures'.

At the outset, we want to make it clear that if the blood test was made at the sole request of the surgeon, a private individual, the doctrine of search and seizure would not be applicable. See State v. Fields, 74 N.M. 559, 395 P.2d 908 (1964). The trial court understood that the request came from a police officer because the trial court relied on Breithaupt v. Abram,58 N.M. 385, 271 P.2d 827 (1954), aff'd 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957) and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). These authorities do not support the trial court's decision.

In Breithaupt, defendant was lying unconscious in the emergency room of a hospital, the smell of liquor was detected on his breath, and a state patrolman requested that a sample of his blood be taken. The Supreme Court of the United States held that defendant was not deprived of due process of law in violation of the Fourteenth Amendment; that the Fourteenth Amendment does not forbid the use of evidence obtained by an unreasonable search and seizure violative of the Fourth Amendment, nor of compelled testimony violative of the Fifth Amendment, even if the evidence was so obtained. The court relied on Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) since overruled in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Breithaupt no longer stands as authority.

In Schmerber, the defendant had been arrested at the hospital while receiving treatment for injuries suffered in an accident involving the automobile that he had apparently been driving. At the direction of a police officer, a blood sample was then withdrawn from defendant's body by a physician at the hospital. The court held that the privilege against self-incrimination applies to disclosures that are communicative or testimonial, and the defendant was not compelled to testify against himself. We have adopted this rule. State v. Jamerson, 85 N.M. 799, 518 P.2d 779 (Ct.App.1974). There was no violation of the Fifth Amendment.

The court also held that a blood alcohol test falls within the Fourth Amendment because it constitutes a search of 'persons'; that the warrantless search of the defendant was justified because, (a) it was made incident to a lawful arrest, (b) plaintiff smelled of liquor, and (c) the police officer was confronted with an emergency due to the progressive diminution of the blood alcohol level during the time interval incident necessary to obtain a search warrant.

There is a conflict of authority of whether in Schmember an arrest prior to the blood test is an essential element of the concept of an unreasonable search and seizure. We adopt the view that it is. State v. Trujillo, supra; People v. Superior Court of Kern County, supra; State v. Wetherell, supra; People v. Todd, supra; Mitchell v. State, 227 So.2d 728 (Ct.App.Fla.1969); State v. Brunner, supra; Commonwealth v. Murray,441 Pa. 22, 271 A.2d 500 (1970); State v. Davis, 108 N.H. 45, 226 A.2d 873 (1967); See, United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

Dionisio, supra, states:

In Schmember, we found the initial seizure of the accused justified as a lawful arrest, and the subsequent seizure of the blood sample from his body reasonable in light of the exigent circumstances. (Emphasis added) (93 S.Ct....

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