State v. Storey

• Decision Date: 28 September 2017
• Docket Number: No. A-1-CA-35013,A-1-CA-35013
• Citation: 410 P.3d 256
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Julian STOREY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

410 P.3d 256

STATE of New Mexico, Plaintiff-Appellee,

v.Julian STOREY, Defendant-Appellant.

No. A-1-CA-35013

Court of Appeals of New Mexico.

Filing Date: September 28, 2017

Certiorari Denied, October 31, 2017, No S-1-SC-36695

Hector H. Balderas, Attorney General, Santa Fe, NM, John Kloss, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Santa Fe, NM, Steven J. Forsberg, Assistant Appellate Defender, Albuquerque, NM, for Appellant.

BOHNHOFF, Judge.

{1} Julian Storey (Defendant) was arrested in Albuquerque, New Mexico on suspicion of driving under the influence of marijuana. Following a jury trial in Bernalillo County metropolitan court, he was convicted of aggravated driving under the influence of a drug (DUI), possession of drug paraphernalia, and failing to maintain lane. The district court affirmed these convictions. On appeal to this Court, Defendant raises five challenges to the aggravated DUI conviction: (1) the trial court erred when it denied Defendant's motion to strike three potential jurors for cause, thus denying Defendant a fair trial; (2) there was insufficient evidence to support the jury's finding that Defendant was guilty of aggravated DUI; (3) the trial court erred by denying Defendant's motion for a mistrial due to the prosecutor's comments regarding the legal standard for DUI; (4) NMSA 1978, Section 66-8-102(D)(3) (2016) is unconstitutional because it criminally punishes defendants for refusing to submit to a warrantless blood draw; and (5) on the same constitutional grounds, fundamental error occurred when the prosecutor commented during closing argument on Defendant's refusal to submit to the blood draw. Pursuant to the United States Supreme Court's holding in Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), and following this Court's ruling in State v. Vargas , 2017-NMCA-023, ¶ 15, 389 P.3d 1080, cert. granted , 2017-NMCERT-––––, (No. A-1-CA-33718, Feb. 14, 2017), we conclude that Section 66-8-102(D)(3) is unconstitutional under the facts of this case. Pursuant to the Fourth and Fourteenth Amendments to the United States Constitution, a state cannot criminally punish an individual for refusing to submit to a warrantless blood draw. However, we also conclude that the constitutional proscription announced in Birchfield does not extend to the introduction of evidence of, or a prosecutor's comment on, such refusal to consent. Thus, the trial court did not err by allowing the prosecutor to comment during closing argument on Defendant's refusal to submit to a blood draw. We are not persuaded by Defendant's remaining arguments. We thus affirm in part and reverse in part, and remand for entry of judgment and sentence for violation of the underlying DUI offense.

BACKGROUND

I. New Mexico's Impaired Driving Laws

{2} Section 66-8-102(A) generally prohibits driving under the influence of alcohol: "It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state." "[U]nder the influence," as that phrase is used in Section 66-8-102(A), means that "as a result of drinking liquor, the driver [is] less able to the slightest degree , either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety." (DWI). State v. Neal , 2008-NMCA-008, ¶ 21, 143 N.M. 341, 176 P.3d 330 (alteration, emphasis added) (internal quotation marks and citation omitted). Section 66-8-102(B) generally prohibits driving under the influence of a drug: "It is unlawful for a person who is under the influence of any drug to a degree that renders the person incapable of safely driving a vehicle to drive a vehicle within this state." (Emphasis added.)

{3} The New Mexico Implied Consent Act (the Act), NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2015), aids in the enforcement of Section 66-8-102. The Act generally provides that any person who operates a motor vehicle within the state is deemed to have consented to a breath or blood test if he or she is arrested on suspicion of driving under the influence of intoxicating liquor or drugs. Section 66-8-107(A); State v. Watchman , 1991-NMCA-010, ¶ 31, 111 N.M. 727, 809 P.2d 641, overruled in part on other grounds by State v. Hosteen , 1996-NMCA-084, ¶ 21, 122 N.M. 228, 923 P.2d 595. The subject may refuse to consent to the test, Section 66-8-111(A), but the Act provides sanctions for refusing: revocation of the subject's driver's license for one year, Section 66-8-111(B), and a mandatory jail sentence if he or she is convicted of the underlying DUI offense, Section 66-8-102(E). That is, Section 66-8-102(D)(3) establishes the offense of aggravated driving while under the influence of intoxicating liquor or drugs (aggravated DUI): "refus [al] to submit to chemical testing, as provided for in [the Act, while,] in the judgment of the court, based upon evidence of intoxication presented to the court, the driver was under the influence of intoxicating liquor or drugs."¹ Id.

II. Defendant's Arrest

{4} Deputy Sarah Young of the Bernalillo County Sheriff's Department was on duty during the early morning hours of November 7, 2013. She was traveling westbound on Montano Boulevard in Albuquerque, New Mexico (Montano), in the same direction as a sport utility vehicle (SUV) that was ahead of her and was traveling in the far right lane. The deputy observed the SUV cross over the solid painted lane divider into the right shoulder lane three times. Deputy Young then observed the vehicle move the opposite direction into the far left lane and appear to graze the concrete lane divider. After the SUV turned southbound onto Coors Boulevard, Deputy Young initiated a traffic stop. When she made contact with Defendant, who was the driver of the SUV, the deputy smelled the odor of burnt marijuana coming from the vehicle. Deputy Young then asked Defendant whether there was anything in the vehicle she should be aware of, and Defendant produced a marijuana pipe from the center console. Based on the odor of burnt marijuana, the marijuana pipe, and how Defendant was driving, Deputy Young called dispatch to request a DUI officer. Deputy Johan Jareno responded to the call.

{5} When Deputy Jareno arrived, he was briefed by Deputy Young and then made contact with Defendant. Deputy Jareno also smelled the odor of burnt marijuana coming from the vehicle, and Defendant admitted to Deputy Jareno that he had smoked marijuana "a couple hours" earlier. Deputy Jareno asked Defendant if he would perform standardized field sobriety tests (FSTs) and Defendant agreed. Defendant followed Deputy Jareno's instructions for the horizontal gaze nystagmus test, but missed the heel-to-toe twice, turned incorrectly, and used his arms for balance during the walk-and-turn test. Defendant also failed to follow Deputy Jareno's instructions during the one-leg stand test, hopping once and failing to look at his foot or keep his hands by his sides.

{6} Deputy Jareno testified that standardized FSTs help a law enforcement officer assess a driver's ability to operate a motor vehicle safely, because "the tests are divided attention tests that require multitasking, as does driving." FSTs are designed to assess a person's intoxication regardless of the intoxicating substance. Deputy Jareno had training in Advanced Road Impairment Detection and Enforcement, where he learned how to identify drugs by look, smell, and consistency, and he also received specialized training as a Drug Recognition Examiner.

{7} Following completion of the initial FSTs, Deputy Jareno then decided to give Defendant two alternate tests. For the first test, Deputy Jareno asked Defendant to estimate thirty seconds of time. When Defendant performed this exercise, forty-one seconds actually passed. For the second test, Deputy Jareno asked Defendant to recite the alphabet from J to Y, but Defendant was able to recite the alphabet only between J and P. Based on the results from the standardized FSTs and the two alternate tests, Deputy Jareno concluded that Defendant was not able to safely operate a vehicle and arrested him for DUI.

{8} For Defendant's part, he testified that "he did not feel intoxicated and thought he was safe to drive." He testified that his truck was "beat up" and that he had "blown out" the suspension, causing the truck to sway between the lanes because the road was "very bumpy." Defendant also testified that he believed his driving was fine and that his vehicle did not strike the barrier. Defendant also denied that the marijuana pipe he turned over to Deputy Young belonged to him.

{9} After Defendant's arrest, but while still on the scene, Deputy Jareno read Defendant a scripted advisory statement for implied consent that states:

You are under arrest for driving under the influence of intoxicating liquor and/or drug[s]. The New Mexico Implied Consent Advisory [sic] requires you to submit to a breath test, a blood test, or both to determine the alcohol or drug content of your blood. After you take one or both of our tests, you will have the right to choose an additional independent test. ... Do you agree to take our test or tests—yes or no?

Defendant stated that he understood the advisory and he agreed to be tested. Deputy Jareno transported Defendant to a police station where Defendant was administered a breath test. The test showed negative for alcohol. Deputy Jareno then asked Defendant to submit to a blood test and Defendant refused. Deputy Jareno then stated:

I cannot force you to take our test but if you refuse you will lose your New Mexico driver's license or non-resident operating privilege for up to one year. If you are also found guilty in court of driving while under the influence you may receive a greater sentence because you refused to submit to be tested.

Defendant still refused to submit to a blood test.

III. District Court Appeal

{10} The metropolitan court (trial court)...