State v. Vargas, NO. S-1-SC-36197.

Docket NºNO. S-1-SC-36197.
Citation404 P.3d 416
Case DateOctober 05, 2017
CourtSupreme Court of New Mexico

404 P.3d 416

STATE of New Mexico, Plaintiff-Petitioner,
Laressa VARGAS, Defendant-Respondent.

NO. S-1-SC-36197.

Supreme Court of New Mexico.

Filing Date: October 5, 2017

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

Bennett J. Baur, Chief Public Defender Steven James Forsberg, Assistant Appellate Defender Albuquerque, NM, for Respondent.


CHÁVEZ, Justice

{1} The United States Supreme Court recently held that (1) a law enforcement officer

404 P.3d 418

may require a warrantless alcohol breath test from a person who is arrested for driving while intoxicated (DWI) from alcohol because a breath test is a reasonable search incident to arrest, but (2) an officer cannot require a warrantless blood test unless the officer has probable cause to require the blood test and demonstrates exigent circumstances. Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 2184-86, 195 L.Ed.2d 560 (2016). Thus, under Birchfield , a person who is arrested for DWI may be punished for refusing to submit to a breath test under an implied consent law, but may not be punished for refusing to consent to or submit to a blood test under an implied consent law unless the officer either (a) obtains a warrant, or (b) proves probable cause to require the blood test in addition to exigent circumstances.

{2} In this case, defendant Laressa Vargas consented to and submitted to two breath tests, but refused to consent to a blood test. The arresting officer did not obtain a warrant for a blood test, nor could he do so under New Mexico law, because he did not have probable cause to believe that Vargas had committed a felony or caused death or great bodily injury to another person while driving a motor vehicle under the influence of alcohol or a controlled substance as required by NMSA 1978, Section 66-8-111(A) (2005). Vargas was convicted of violating NMSA 1978, Section 66-8-102(D)(3) (2010, amended 2016) because she refused to submit to a blood test; she received a sentence of ninety days in jail, with credit for seventy-five days for time served.

{3} The Birchfield opinion had not been decided when the Bernalillo County Metropolitan Court entered its judgment convicting Vargas; however, Birchfield was published while Vargas's appeal was pending before the New Mexico Court of Appeals. The Court of Appeals applied Birchfield and reversed Vargas's conviction for aggravated DWI. See State v. Vargas , 2017-NMCA-023, ¶¶ 2, 26, 389 P.3d 1080. We granted the State's petition for writ of certiorari to consider whether the Court of Appeals erred in applying Birchfield . State v. Vargas , 2017-NMCERT-––––, 404 P.3d 416 (No. S-1-SC-36197, Feb. 14, 2017). We conclude that the Court of Appeals correctly applied Birchfield to the pending appeal because of a person's fundamental right under the Fourth Amendment of the United States Constitution not to be subjected to unreasonable searches, and because Birchfield prohibits punishment under implied consent laws based on an arrestee's refusal to consent to and submit to a warrantless blood test. See Birchfield , ––– U.S. ––––, 136 S.Ct. at 2160, 2186.


{4} On April 23, 2011 at approximately 1:00 a.m., Bernalillo County Deputy Sheriff Patrick Rael was part of a force conducting a DWI checkpoint on Coors Boulevard in Albuquerque when he encountered Vargas. As Vargas approached the checkpoint, she stopped fifteen to twenty yards before she reached where Deputy Rael was standing, and Deputy Rael waved his flashlight to get her attention to indicate that she should move forward. Vargas then rolled down her window and said "good afternoon," which Deputy Rael found odd, given the time of night.

{5} Deputy Rael immediately noticed the odor of alcohol emanating from both Vargas's person and her vehicle. He also observed that Vargas's eyes were bloodshot and watery. Deputy Rael asked Vargas if she had been drinking, to which she answered that she had not. She explained that she was the designated driver for her passenger, who had been drinking. Deputy Rael described Vargas as "confused" and "nervous."

{6} Deputy Rael requested that Vargas submit to field sobriety tests (FSTs), and Vargas agreed. Vargas performed poorly on the FSTs. At that point Deputy Rael believed that Vargas was intoxicated and could not safely operate a vehicle, so he placed her under arrest.

{7} Deputy Rael read the pertinent provisions of the New Mexico Implied Consent Act to Vargas, after which she agreed to a breath test. Vargas provided two breath test samples, which resulted in readings of 0.04 at 1:33 a.m. and 0.05 at 1:35 a.m. Because he believed that the breath test results were inconsistent with Vargas's signs of impairment,

404 P.3d 419

Deputy Rael determined that a blood test was the only other means to confirm Vargas's intoxication, particularly because he suspected that drugs were the cause of her impairment. Deputy Rael then reread the Implied Consent Act to Vargas and explained that he was entitled to ask her for both a breath test and a blood test. He subsequently asked Vargas to submit to a blood test, and she agreed to do so. Deputy Rael wanted to verify Vargas's answer, so he asked her again if she was willing to submit to a blood test. Deputy Rael explained that the possible consequences of refusing the blood test included an aggravated sentence and license revocation. Vargas refused to take the blood test the second time she was asked, and she was subsequently charged with aggravated DWI.

{8} At the conclusion of the bench trial, the metropolitan court determined that the State had proved beyond a reasonable doubt that Vargas drove while she was under the influence of alcohol to the slightest degree.1 It also concluded that officers have the discretion to request breath tests, blood tests, or both, and that Vargas's refusal aggravated the underlying DWI. The metropolitan court sentenced Vargas to a term of ninety days in jail for aggravated DWI under Section 66-8-102(D)(3) (2010), which provides that

[a]ggravated driving under the influence of intoxicating liquor or drugs consists of: refusing to submit to chemical testing, as provided for in the Implied Consent Act, 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 or drugs.

{9} Vargas subsequently appealed to the Second Judicial District Court and then to the Court of Appeals. After the United States Supreme Court decided Birchfield , Vargas raised for the first time on appeal to the Court of Appeals the defense that the warrantless request for the blood test was an unreasonable search under the Fourth Amendment, and that her refusal to submit to it could not be used to prove aggravated DWI.

{10} Although the Court of Appeals concluded that Vargas's constitutional argument was not preserved, it decided the issue on the merits. See Vargas , 2017-NMCA-023, ¶¶ 14-15, 389 P.3d 1080. The Court reversed Vargas's aggravated DWI conviction and remanded the case to the metropolitan court for resentencing on the DWI charge based on Vargas being impaired to the slightest degree pursuant to Section 66-8-102(A). Id. ¶¶ 2, 9, 19, 26. The State makes two arguments before us: (1) Birchfield does not apply retroactively, and (2) the Court of Appeals erred in applying Birchfield because the issue was not preserved.


A. Birchfield Applies Retroactively

{11} The State's argument that Birchfield should not be applied retroactively is not persuasive. In Teague v. Lane , the United States Supreme Court established the analysis that courts must follow to determine whether a new rule applies retroactively. See 489 U.S. 288, 299-310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). New Mexico courts have adopted this analysis. See Kersey v. Hatch , 2010-NMSC-020, ¶¶ 21, 25, 148 N.M. 381, 237 P.3d 683. "An...

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