State v. Willie

• Citation: 2009 NMSC 037,212 P.3d 369
• Decision Date: 24 June 2009
• Docket Number: No. 30,909.,No. 31,104.,30,909.,31,104.
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Travis WILLIE, Defendant-Respondent. State of New Mexico, Plaintiff-Petitioner, v. Frank Julian, Defendant-Respondent.
• Court: Supreme Court of New Mexico

212 P.3d 369

2009 NMSC 037

STATE of New Mexico, Plaintiff-Petitioner, v. Travis WILLIE, Defendant-Respondent.

State of New Mexico, Plaintiff-Petitioner, v. Frank Julian, Defendant-Respondent.

No. 30,909.

No. 31,104.

Supreme Court of New Mexico.

June 24, 2009.

Gary K. King, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Petitioner.

Hugh W. Dangler, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Chief Justice.

{1} Defendants Frank Julian and Travis Willie each waited for about an hour following their DWI arrests to submit to a breathalyzer test. They awaited the test in either the arresting officer's patrol car with their hands cuffed behind their backs, a holding cell at the police station in view of the arresting officer, or the breath testing room while in the officer's presence. After Defendants' arrests, the officers engaged them in conversation and, in due time, Defendants each provided their breath samples. At trial, the officers testified that based on these circumstances, as well as their observations, they were confident that Defendants did not put anything in their mouths or have anything to eat, drink, or smoke during this approximately one-hour period. Defendants' breath alcohol test (BrAT) results showed that they were both DWI.

{2} Defendants argue that despite the officers' observations of them under these conditions, the results of their BrATs were inadmissible because the arresting officers neither asked them if they had anything in their mouths nor inspected their mouths for any substances prior to taking their first breath samples.¹ They argue that the officers' failure to "ask or check" violated Regulation 7.33.2.12(B)(1) NMAC, which provides that "[b]reath shall be collected only after the Operator or Key Operator [in this case, the arresting officers] has ascertained that the subject has not had anything to eat, drink or smoke for at least 20 minutes [the deprivation period] prior to collection of the first breath sample." The State argues that this regulation does not require the officers to "ask or check," and instead leaves the manner and means in which an officer determines that a person has not had anything to "eat, drink or smoke" during the deprivation period up to the individual officer on a case-by-case basis. We hold that Regulation 7.33.2.12(B)(1) NMAC (the regulation) does not require BrAT machine operators to "ask or check" prior to beginning the deprivation period, and therefore we affirm Willie's conviction and remand Julian's case to the Court of Appeals.

I. BACKGROUND

{3} For our purposes on review, these cases present identical relevant factual backgrounds. On separate occasions, Defendants were pulled over for driving erratically and, after showing signs of impairment, were arrested for drunk driving. At some point after their arrests, they each consented to submit to a breath alcohol test.

{4} Defendant Willie was arrested at 1:39 a.m., at which time he was placed in a patrol car with his hands cuffed behind his back. He gave his first breath sample nearly one hour later at approximately 2:35 a.m. In the time between Willie's arrest and his first BrAT, Willie was either handcuffed in the back seat of the arresting officer's patrol car or was "face to face" with the officer in the breath testing room. Prior to administering the BrAT, the arresting officer conversed with Willie. Based on his observations of Willie under these conditions, the arresting officer testified that Willie did not eat, drink, or smoke during the time between Willie's arrest and his first BrAT. However, the arresting officer did not check Willie's mouth for any substances prior to initiating the deprivation period, and the record does not indicate whether Willie was asked at any time prior to giving his first breath sample if he had anything in his mouth. Willie's BrAT results were 0.12 at 2:35 a.m. and 0.13 at 2:38 a.m.

{5} Defendant Julian was arrested at approximately 3:30 a.m., and he was handcuffed and placed in the patrol car at that time. Julian gave his first breath sample at about 4:20 a.m., approximately fifty minutes later. In the time between Julian's arrest and his first BrAT, Julian was either handcuffed in the back seat of the arresting deputy's patrol car or in a holding cell at the police station, where he remained handcuffed. After placing Julian under arrest, the arresting deputy engaged Julian in conversation, although the extent of that conversation was not developed at trial. Based on his observations of Julian under these conditions, the deputy testified that Julian did not put anything in his mouth after his arrest and prior to giving his first breath sample. As with Willie, however, the deputy did not check Julian's mouth for substances, and the record does not indicate whether Julian was asked at any time before giving his first breath sample if he had anything in his mouth. Julian's BrAT results were 0.16 at 4:20 a.m. and 0.16 at 4:22 a.m.

{6} Defendants were both convicted of DWI at their de novo trials in the district court, and they appealed to the Court of Appeals, which reversed their convictions. The Court of Appeals concluded that by using the term "ascertain," "the language of the regulation appears to require an affirmative step by the arresting officer to determine whether a suspect has something in his or her mouth at the beginning of the deprivation period." State v. Willie, 2008-NMCA-030, ¶ 16, 143 N.M. 615, 179 P.3d 1223. It therefore held that the regulation:

[R]equires that the officer at the very least look in the subject's mouth or ask the subject if there is anything in his or her mouth [prior to beginning the deprivation period]. Following that, it would be reasonable for an officer to conclude that a subject who is handcuffed with hands behind him or her, who is confined to the backseat of a police vehicle and then to the detention center, and who is in the officer's presence during the entire time, has not put anything to eat, drink, or smoke in his or her mouth.

Id.; see also State v. Julian, No. 26,583, mem. op. at 2 (N.M.Ct.App. Apr. 14, 2008). We granted the State's petitions for writs of certiorari, which asked us to review this holding of the Court of Appeals, and consolidated these cases. State v. Willie, 2008-NMCERT-002, 143 N.M. 667, 180 P.3d 674; State v. Julian, 2008-NMCERT-006, 144 N.M. 381, 188 P.3d 105. We reverse the Court of Appeals in both cases, affirm Willie's convictions, and remand Julian's case to the Court of Appeals.

II. DISCUSSION

A. JULIAN'S ARGUMENT WAS NOT ABANDONED

{7} As a preliminary issue, the State argues that Julian abandoned his argument that a BrAT operator must "ask or check" because he did not adequately brief this argument in the Court of Appeals. See State v. Foster, 1999-NMSC-007, ¶ 41, 126 N.M. 646, 974 P.2d 140 ("issues not addressed in an appellant's brief will be deemed abandoned") (citation omitted). The Court of Appeals concluded that this argument had not been abandoned, Julian, No. 26,583, mem. op. at 3, and we agree. Julian argued in his brief to the Court of Appeals that the arresting deputy did not determine whether he had anything in his mouth during the deprivation period. He also alerted the Court of Appeals, albeit in a footnote, that "[t]his issue is currently before the Court of Appeals in ... Willie." While Julian would have been wiser to more thoroughly develop how the issue presented in Willie affected his DWI conviction, we are satisfied that Julian presented this issue to the Court of Appeals by arguing in his brief that the arresting officer "failed to comply with the mandate that the officer ensure nothing enters the suspect's mouth" during the deprivation period. Therefore, Julian did not abandon this argument in the Court of Appeals.

B. THE REGULATION DOES NOT REQUIRE THAT BrAT OPERATORS "ASK OR CHECK" WHETHER A SUBJECT HAS HAD ANYTHING TO EAT, DRINK, OR SMOKE PRIOR TO INITIATING THE DEPRIVATION PERIOD

{8} The parties do not dispute that under State v. Martinez and Rule 11-104(A) NMRA, the regulation must be complied with in order for BrAT results to be admissible. 2007-NMSC-025, ¶¶ 10-11, 21, 141 N.M. 713, 160 P.3d 894 (holding that "accuracy-ensuring" regulations governing the admission of breath alcohol tests are foundational requirements governed by Rule 11-104(A) and, therefore, the trial court must be satisfied by a preponderance of the evidence that those regulations have been followed prior to admitting the BrAT results). Rather, the parties dispute what BrAT operators must do to satisfy the regulation's requirements, and they agree that to resolve this issue, we must interpret the regulation's language.

{9} The interpretation of an administrative regulation is a question of law that we review de novo. Alliance Health of Santa Teresa, Inc. v. Nat'l Presto Indus., Inc., 2007-NMCA-157, ¶ 18, 143 N.M. 133, 173 P.3d 55. "In interpreting sections of the Administrative Code, we apply the same rules as used in statutory interpretation." Id.; accord State v. Collins, 2005-NMCA-044, ¶ 23, 137 N.M. 353, 110 P.3d 1090. "The principal command of statutory construction is that the court should determine and effectuate the intent of the legislature, using the plain language of the statute as the primary indicator of legislative intent[.]" State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) (citations omitted). If the plain meaning of the statute is "doubtful, ambiguous, or [if] an adherence to the literal use of the words would lead to injustice, absurdity or contradiction," we will construe the statute "according to its obvious spirit or reason." State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064.

{10} The regulation requires that:

Breath shall be collected only after...