State v. Vargas

• Decision Date: 25 October 2016
• Docket Number: NO. 33,718,33,718
• Citation: 389 P.3d 1080
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Laressa VARGAS, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

389 P.3d 1080

STATE of New Mexico, Plaintiff–Appellee,

v.Laressa VARGAS, Defendant–Appellant.

NO. 33,718

Court of Appeals of New Mexico.

Filing Date: October 25, 2016

Certiorari Granted, February 14, 2017, No. S-1-SC-36197

Hector H. Balderas, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Santa Fe, NM, Vicki W. Zelle, Assistant Appellate Defender, Albuquerque, NM, for Appellant.

OPINION

ZAMORA, Judge.

{1}DefendantLaressa Vargas appealed her conviction in the metropolitan court(trial court) for aggravated driving while intoxicated (DWI), contrary to NMSA 1978, Section 66–8–102(D)(3)(2016), to the district court.The district court affirmed the trial court's sentencing order and filed a memorandum opinion.Defendant now appeals to this Court.Defendant challenges the sufficiency of the evidence to support her conviction.Defendant also challenges the constitutionality of the arresting officer's request for a blood test and argues that evidence of her refusal to submit to a blood test should have been excluded.

{2}We conclude that sufficient evidence supported the trial court's finding that Defendant was driving under the influence of intoxicating liquor and was impaired to the slightest degree.However, in light of the United States Supreme Court's recent holding in Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560(2016), we conclude that Defendant may not be held criminally liable for refusing to submit to a warrantless blood test based on implied consent.Id. at 2185–86.We affirm in part, reverse in part, and remand.

I.BACKGROUND

{3} On April 23, 2011, the Bernalillo County Sheriff's Office conducted a sobriety checkpoint.Deputy Patrick Rael of the Bernalillo County Sheriff's Office was working the checkpoint and observed Defendant's vehicle, which was stopped approximately 15 to 20 yards in advance of the checkpoint.Deputy Rael signaled to Defendant to pull forward.Defendant rolled down her window and said, "Good afternoon," which Deputy Rael found odd since it was approximately 1:00 a.m. Deputy Rael noticed the odor of alcohol coming from the vehicle and from Defendant.Deputy Rael also noticed that Defendant appeared nervous and confused, and that her eyes were bloodshot and watery.During their initial contact, Defendant denied consuming alcohol.

{4} Deputy Rael requested that Defendant perform field sobriety tests (FSTs) and Defendant agreed.With Defendant outside of the vehicle, Deputy Rael continued to smell alcohol coming from Defendant's person.Defendant performed poorly on each of the FSTs.Deputy Rael believed that Defendant could not safely operate a vehicle and Defendant was placed under arrest.Deputy Rael testified that he read the Implied Consent Act to Defendant, and requested that she submit to a breath test.Defendant then admitted to having consumed alcohol, and the breath test indicated that her blood alcohol concentration (BAC) was .04/.05.

{5} Based on Defendant's poor performance on the FSTs, Deputy Rael did not believe the BAC results were consistent with her level of impairment.Deputy Rael requested that Defendant also submit to a blood test.Defendant initially agreed to the blood test, but later refused.Defendant was charged with aggravated DWI.

{6} After a bench trial, Defendant was convicted of aggravated DWI.Defendant appealed to the district court.The district court affirmed Defendant's conviction.This appeal followed.

II.DISCUSSION

A.Sufficiency of the Evidence

{7}"[T]he test to determine the sufficiency of evidence in New Mexico ... is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction."State v. Sutphin , 1988–NMSC–031, ¶ 21, 107 N.M. 126, 753 P.2d 1314."In reviewing the sufficiency of the evidence, [the appellate courts] must view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict."State v. Cunningham,2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.

{8} In the present case, Defendant argues that because the State presented no direct evidence of impaired driving, it lacked sufficient evidence to support a verdict of aggravated DWI beyond a reasonable doubt.Section 66–8–102(D)(3) states:

Aggravated driving under the influence of intoxicating liquor ... consists of:

....

(3) refusing to submit to chemical testing, as provided for in the Implied Consent Act[, NMSA 1978, §§ 66–8–105 to –112 (1978, as amended through 2015) ], and in the judgment of the court, based upon evidence of intoxication presented to the court, the driver was under the influence of intoxicating liquor[.]

There is no dispute that Defendant refused to submit to the blood test.Accordingly, the sole question is whether substantial evidence supports the trial court's conclusion that Defendant was driving under the influence of intoxicating liquor.

{9} In order to convict Defendant of driving under the influence of intoxicating liquor, the trial court must find that as a result of drinking liquor Defendant was "less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle [a vehicle] with safety to himself and the public."State v. Sisneros , 1938–NMSC–049, ¶ 18, 42 N.M. 500, 82 P.2d 274(internal quotation marks and citation omitted);State v. Gurule , 2011–NMCA–042, ¶ 7, 149 N.M. 599, 252 P.3d 823(same)."This standard is known as the impaired to the slightest degree standard."Gurule , 2011–NMCA–042, ¶ 7, 149 N.M. 599, 252 P.3d 823(internal quotation marks and citation omitted).

{10} At trial, the State presented evidence that Defendant was driving the vehicle when it approached the checkpoint after having consumed alcohol.Deputy Rael testified that Defendant was in fact driving the vehicle after having consuming alcohol when she approached the checkpoint.Defendant eventually admitted to consuming alcohol and submitted to a breath test, which measured her BAC .04/.05.

{11} Deputy Rael testified that Defendant was confused, had bloodshot, watery eyes, and smelled of alcohol.According to Deputy Rael, Defendant was unable to maintain her balance and was unable to follow his instructions during the FST sequences.Deputy Rael administered four FST sequences and Defendant was not able to complete any of them successfully.

{12}We hold that this evidence supports her conviction for driving while impaired to the slightest degree.SeeState v. Sparks , 1985–NMCA–004, ¶ 6, 102 N.M. 317, 694 P.2d 1382(defining substantial evidence as that evidence which a reasonable person would consider adequate to support a defendant's conviction);see alsoState v. Neal , 2008–NMCA–008, ¶ 29, 143 N.M. 341, 176 P.3d 330(observing that the defendant's unsatisfactory performance on the FSTs, including his failure to follow instructions and his lack of balance, constituted signs of intoxication, which supported his conviction for driving under the influence of intoxicating liquor);State v. Soto , 2007–NMCA–077, ¶¶ 32, 34, 142 N.M. 32, 162 P.3d 187(holding that there was sufficient evidence of driving under the influence pursuant to the impaired-to-the-slightest-degree standard, even though, among other factors, the officers observed no irregular driving when the defendant"had red, bloodshot, and watery eyes, as well as slurred speech and a very strong odor of alcohol on his breath[,]"the defendant admitted drinking, the officers observed several empty cans of beer where the defendant had been, and the officers testified that the defendant was definitely intoxicated), abrogated on other grounds byState v. Tollardo , 2012–NMSC–008, 275 P.3d 110.

B.Implied Consent to Submit to Blood Testing

{13}Defendant also argues that evidence of her refusal to take a blood test should have been suppressed because, under the circumstances of this case, a compelled blood test was constitutionally unreasonable under both the Fourth Amendment of the United States ConstitutionandArticle II, Section 10 of the New Mexico Constitution.Defendant also challenges the constitutionality of using her refusal to submit to the blood test to aggravate her DWI charge.

1.Preservation

{14}The State asserts that Defendant failed to preserve the suppression argument she now makes on appeal.Under the New Mexico Rules of Appellate Procedure, "[t]o preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked[.]"Rule 12–216(A) NMRA.Defendant suggests that by arguing for suppression of the expanded search, she preserved the constitutional aspect of the unreasonableness of the search.Defendant further declares that the district court's denial of her request for suppression was a ruling fairly invoked from the lower court.Defendant did not directly or indirectly assert this constitutional principle in her appeal to the district court nor did she provide the necessary factual basis that would allow for the district court to rule on the issue.SeeState v. Gomez , 1997–NMSC–006, ¶ 22, 122 N.M. 777, 932 P.2d 1.The district court did not address the issue.As a result, Defendant has failed to preserve her argument for appeal.

{15} However, where a decision by the district court was not fairly invoked on a particular issue, an appellate court may still consider "jurisdictional questions, issues of general public interest, or matters involving fundamental error or fundamental rights of a party."State v. Harrison , 2010–NMSC–038, ¶ 10, 148 N.M. 500, 238 P.3d 869(internal quotation marks and citation omitted);seeRule 12–216.Because of the unusual nature of this case where criminal liability has been imposed for refusing to submit to an unconstitutional request and the ...