State v. Vaughn

• Decision Date: 13 April 2005
• Docket Number: No. 24,630.,24,630.
• Citation: 137 N.M. 674,114 P.3d 354
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Nathan VAUGHN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

114 P.3d 354

137 N.M. 674

STATE of New Mexico, Plaintiff-Appellee, v. Nathan VAUGHN, Defendant-Appellant.

No. 24,630.

Court of Appeals of New Mexico.

April 13, 2005.

Certiorari Denied June 6, 2005.

Patricia A. Madrid, Attorney General, Santa Fe, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, for Appellee.

D. Eric Hannum, Albuquerque, for Appellant.

Certiorari Denied, No. 29,209, June 6, 2005.

OPINION

FRY, J.

{1} Defendant appeals his conviction for aggravated driving while under the influence of intoxicating liquor or drugs on three grounds: (1) the trial court acquitted him of aggravated DWI during the proceedings and therefore violated double jeopardy protections when it found him guilty later on in the same proceedings; (2) the trial court incorrectly interpreted the applicable statutory provisions on refusal to submit to testing by holding that Defendant refused to comply even though he had provided one breath sample; and (3) it is fundamentally unfair and a violation of substantive due process to admit a breath sample into evidence while also finding Defendant guilty of refusing to provide a breath sample. For the reasons that follow, we are not persuaded by Defendant's first two arguments. We do not reach Defendant's due process argument because it is insufficiently developed. We therefore affirm Defendant's conviction.

BACKGROUND

{2} Defendant was arrested after failing field sobriety tests and was taken to Bernalillo County Detention Center, where he was asked to provide breath samples approximately sixty minutes after he had been driving. The arresting officer testified that after Defendant successfully blew the first test, he could see his score of 0.16 and was advised of what his score was. The officer testified that Defendant then took a deep breath and pretended to blow into the machine for a second and third test resulting in readings of "insufficient sample" and "no sample introduced" respectively. The officer testified that the Intoxilyzer breath-test device was working properly, that it had been certified and passed its own internal calibration and diagnostic tests and, finally, that there was no need to replace the disposable mouthpiece since it had worked on the first sample. There was conflicting testimony at trial regarding whether Defendant's actions were intentional. The officer testified that Defendant was argumentative during the testing, and the officer felt Defendant's failure to blow a second sample was intentional. Defendant testified that he neither refused to blow into the device nor refused to follow the officer's instructions, and that he could not hear the officer's instructions due to a hearing impairment.

{3} Defendant was charged with aggravated DWI based on both the breath alcohol content (BAC) score of 0.16, often referred to as a per se DWI violation, and based upon his refusal to provide sufficient breath samples. See NMSA 1978, § 66-8-102(D)(1) (2004) (defining aggravated DWI as driving with a BAC of 0.16 or higher); § 66-8-102(D)(3) (defining aggravated DWI as refusing to submit to chemical testing as provided for in the Implied Consent Act if the court determines the person operated a motor vehicle while under the influence of liquor or drugs). Defendant was tried and convicted in a bench trial in metropolitan court (the trial court) on the aggravated DWI charge. In so holding, the trial court noted that after consideration of the testimony, it generally did not find Defendant credible.

{4} During the course of the trial, the trial court made oral and written statements that Defendant contends constituted an acquittal of the refusal basis for aggravated DWI. We discuss these statements more fully below in conjunction with the discussion of double jeopardy.

{5} Defendant appealed to the district court. The district court rejected his double jeopardy and due process claims, and affirmed his conviction on grounds that there was sufficient evidence to find that Defendant had refused to submit to testing and that he had driven while intoxicated in violation of Section 66-8-102(D)(3). The district court concluded that there was insufficient evidence to support a conviction under the per se provision of Section 66-8-102(D)(1) because the State did not produce any corroborative evidence relating the sixty-minute-old 0.16 BAC score back to the time of driving, particularly where the officer testified that the Intoxilyzer device had a 0.02 margin of error. Since the State does not appeal this holding, we do not consider it further. Therefore, the refusal provision of Section 66-8-102(D)(3) is the only basis upon which Defendant's conviction of aggravated DWI can stand. We address the refusal basis after considering Defendant's double jeopardy argument.

DISCUSSION

Double Jeopardy

{6} Defendant argues that the trial court acquitted him of the refusal basis for aggravated DWI when it issued oral and written rulings during the course of the trial. Defendant invokes both the United States and New Mexico double jeopardy clauses. U.S. Const.Amend. V; N.M. Const. art. II, § 15; NMSA 1978, § 30-1-10 (1963) (stating that double jeopardy claims are not waived and can be raised at any time before or after entry of a judgment). We conclude that Defendant did not preserve his claims under the state constitution as our case law requires, pursuant to State v. Gomez, 1997-NMSC-006, ¶¶ 22, 23, 122 N.M. 777, 932 P.2d 1.

{7} Under Gomez, we first consider whether the state constitution has been held to provide greater protection under similar circumstances than the federal constitution. State v. Lynch, 2003-NMSC-020, ¶ 13, 134 N.M. 139, 74 P.3d 73. Although our Supreme Court has interpreted our double jeopardy clause more expansively than its federal counterpart in three situations, no case has applied an expansive interpretation to the acquittal aspect of double jeopardy, the circumstance presented by this case. Id. ¶ 15 (giving protection from greater charges for the same conduct after a conviction on lesser charges); see State v. Nunez, 2000-NMSC-013, ¶¶ 17-18, 27, 129 N.M. 63, 2 P.3d 264

(holding that, unlike under the federal constitution, a civil forfeiture is punishment under the New Mexico double jeopardy clause); State v. Breit, 1996-NMSC-067, ¶¶ 35-36, 122 N.M. 655, 930 P.2d 792 (providing more protection where mistrial is provoked by prosecutorial misconduct). Therefore, in order to preserve a claim under the state constitution, Defendant would have had to raise this claim in the trial court and provide a basis to interpret the state constitution differently. Lynch, 2003-NMSC-020, ¶ 13,

134 N.M. 139,

74 P.3d 73. Defendant first raised his claim under the state double jeopardy clause in his appeal to the district court, so that claim is not preserved.

{8} Turning to the federal constitution, such claims are reviewed de novo and need not be raised in the trial court to be preserved. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995); State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994); § 30-1-10. Generally, the federal double jeopardy clause has been held to offer three core protections: (1) protection against a second prosecution for the same offense after an acquittal, (2) protection against a second prosecution for the same offense after a conviction, and (3) protection against multiple punishments for the same offense. State v. Angel, 2002-NMSC-025, ¶ 7, 132 N.M. 501, 51 P.3d 1155. Defendant in this case is impliedly focusing on the first protection, which is intended to prevent the government from "harassing citizens by subjecting them to multiple suits until a conviction is reached, or from repeatedly subjecting citizens to the expense, embarrassment and ordeal of repeated trials." Id. ¶ 15 (internal quotation marks and citation omitted). Jeopardy begins or attaches when the trier of fact is empowered to decide guilt or innocence and jeopardy terminates upon an acquittal, a conviction, or with certain types of mistrial. County of Los Alamos v. Tapia, 109 N.M. 736, 737, 790 P.2d 1017, 1018 n. 1 (1990). Since the fact-finder in this case was empowered to find Defendant guilty, jeopardy had attached; our task is to determine when jeopardy terminated, at which point Defendant would be protected from any further prosecution for the same offense.

{9} Under the doctrine of double jeopardy, a verdict of acquittal is given "absolute" protection to guarantee finality of that verdict because the defendant's interest in such finality is "at its zenith[.]" Id. at 742, 790 P.2d at 1023. Also, "[o]nce an accused is actually, and in express terms, acquitted by a court, the finality of that judgment will not yield to any attempts to dilute it." Id. at 741, 790 P.2d at 1022. The United States Supreme Court has said that it is "the most fundamental rule" that a defendant cannot be re-tried after a verdict of acquittal, even if that verdict is egregiously erroneous, United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), and that acquittals have "special weight" under double jeopardy analysis. Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). This Court has recently held that such double jeopardy protection is triggered by a jury verdict of acquittal even if the verdict was issued erroneously and the jury issued a new verdict within a matter of minutes. State v. Rodriguez, 2004-NMCA-125, ¶ 14, 136 N.M. 494, 100 P.3d 200, cert. granted, 2004-NMCERT-10, 136 N.M. 542, 101 P.3d 808 (explaining that the jury had been discharged after issuance of the verdict and the jury could have been subject to outside influences before being reassembled). After an acquittal, any type of fact-finding proceeding going to elements of the charged offense violates the federal double jeopardy clause. Smalis v. Pa., 476 U.S. 140, 142, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986); see Sanabria v. United...