Suazo, Matter of

• Decision Date: 23 June 1994
• Docket Number: No. 21165,21165
• Citation: 877 P.2d 1088,1994 NMSC 70,117 N.M. 785
• Parties: In the Matter of the Administrative Revocation Hearing of Abel G. SUAZO. STATE of New Mexico, Plaintiff-Petitioner, v. Abel G. SUAZO, Defendant-Respondent.
• Court: New Mexico Supreme Court

Page 1088

877 P.2d 1088

117 N.M. 785

In the Matter of the Administrative Revocation Hearing of

Abel G. SUAZO.

STATE of New Mexico, Plaintiff-Petitioner, v. Abel G. SUAZO, Defendant-Respondent.

No. 21165.

Supreme Court of New Mexico.

June 23, 1994.

[117 N.M. 786] Tom Udall, Atty. Gen. and Bruce J. Fort, Sp. Asst. Atty. Gen., Taxation and Revenue Dept., Santa Fe, for petitioner.

Carlos F. Vigil, Santa Fe, for respondent.

OPINION

FROST, Justice.

The New Mexico Implied Consent Act, NMSA 1978, Sections 66-8-105 through 66-8-112 (Repl.Pamp.1987 & Cum.Supp.1993), provides that a motorist, upon refusing to take a blood-alcohol test after being arrested for driving under the influence of alcohol, shall have his or her driver's license suspended for one year. Section 66-8-111(A) & (B) (Repl.Pamp.1987). We granted certiorari to decide whether a subsequent change of mind can nullify the motorist's initial refusal to take the blood-alcohol test.

We resolve the issue against the motorist and reverse in part the opinion of the court of appeals. We also take this opportunity to establish criteria that, under limited circumstances, would permit a motorist to "cure" an initial refusal to take a sobriety test.

I. FACTS

On January 11, 1990, about 9:30 p.m. Defendant-Appellee Abel G. Suazo was involved in a two-vehicle accident near Espanola, New Mexico. Officer James Henderson, of the New Mexico State Police, was dispatched to the scene. Though he detected alcohol on Suazo's breath, he permitted Suazo to go to Espanola Hospital to be with his daughter who was injured in the accident.

At the hospital the officer gave Suazo a field sobriety test in which he was unsteady and unable to follow instructions when told to walk and turn, walk heel to toe, and stand on one foot. Based on the field sobriety test, Suazo was arrested and asked to take a breathalyzer test to determine his blood alcohol content (BAC) according to Section 66-8-107 (Repl.Pamp.1987). Officer Henderson advised Suazo that, as specified in Section 66-8-111 parts (A) and (B) of the Implied Consent Act, refusal to take the test would result in revocation of his license for one year. Suazo agreed to take the test and between 10:56 and 10:57 p.m. he made three attempts. On each attempt he did not breathe hard enough or long enough to obtain an adequate breath sample. Though he said nothing at the time, and although Henderson saw no physical reason for Suazo's inability to take the test, Suazo later claimed he could not generate enough air pressure because of injuries surrounding his mouth.

Officer Henderson determined that Suazo's failures were willful and amounted to a refusal to take the test. He noted this observation on the "Notice of Revocation and Right to Hearing" form and informed Suazo his license was revoked for one year based on his refusal to submit to a chemical test. Henderson drove Suazo to the Santa Fe County Detention Center. En route, Suazo requested to be taken to St. Vincent's hospital for medical treatment. At the hospital Suazo called his attorney, who came to St. Vincent's from Espanola to discuss the incident with Henderson. On his lawyer's advice, Suazo agreed to take a blood test. About 1:15 a.m., January 12, 1990, the test was administered, three hours and forty-five minutes after the accident, and two hours and fifteen minutes after the initial refusal to take the test. The test showed a BAC of .04% by weight.

At the hearing on Suazo's license revocation at the Motor Vehicle Division of the Taxation and Revenue Department (MVD), the hearing officer determined that Suazo's failure to complete the breathalyzer test in Espanola constituted a refusal to take the test and upheld revocation of his license for one year. On appeal, the district court reversed the hearing officer's decision, finding that the failure to register a result on the breathalyzer was not a refusal to be tested, and that the subsequent blood test cured any initial refusal. The Court of Appeals disagreed, stating that Suazo's conduct was a refusal. That Court then established criteria which would permit a motorist to rescind a prior refusal, and remanded the case with instructions for the MVD to evaluate Suazo's conduct under those criteria. We only review the Court of Appeals' determination regarding the motorist's right to rescind an initial refusal.

II. RELEVANT STATUTE

The incident took place on January 11, 1990, and we apply the law in effect on that date. However, we note that our findings would not differ under the most recent amendments to this Implied Consent Act. The essence of the Act is that any person who operates a motor vehicle in New Mexico, after being arrested for driving while intoxicated, "shall be deemed to have given consent" to a chemical test to determine the drug or alcoholic content of the motorist's blood. Section 66-8-107(A). A police officer must have reasonable grounds to believe that a motorist, arrested for any violation of the Motor Vehicle Code, NMSA 1978, Secs. 66-1-1 to 66-8-140 (Repl.Pamp.1989, Repl.Pamp.1987 & Cum.Supp.1993), may be driving while under the influence of intoxicating liquor. Based on these reasonable grounds, the officer may request that the motorist submit to a chemical test. If the motorist refuses, "none shall be administered." Section 66-8-111(A). Thereafter, the director of MVD will revoke the motorist's New Mexico driver's license for one year upon receiving a signed statement from the arresting officer that there were reasonable grounds to believe the motorist was driving while intoxicated, that the officer had requested the motorist to take the chemical test, that the motorist was informed of the consequences of refusing, and that the motorist thereafter refused to take the test. Section 66-8-111(B).

III. IS THE REFUSAL TO TAKE A BLOOD ALCOHOL TEST CURED BY A SUBSEQUENT CHANGE OF MIND?

All fifty states have adopted implied consent laws. See Lively v. State, 804 P.2d 66, 69 (Alaska Ct.App.1991). While many states have questioned whether the initial refusal of a blood alcohol test can be cured by a subsequent recantation, no single answer to this question predominates. There are two main lines of thought: those that prescribe an absolute rule allowing no change of mind under any circumstance, and those that offer a flexible rule, permitting a change of mind within specified limits.

A. The Absolute Rule

Those advocating an absolute rule frequently echo the words of State v. Corrado, 184 N.J.Super. 561, 446 A.2d 1229, 1233 (1982):

[A]nything substantially short of an unqualified, unequivocal assent to an officer's request that the arrested motorist take the test constitutes a refusal to do so. [ (Citation omitted.) ] The occasion is not one for debate, maneuver or negotiation, but rather for a simple "yes" or "no" to the officer's request.

[ (Citation omitted.) ]

The State argues that Suazo's refusal cannot be cured by subsequent consent to another test.

A number of policy arguments are raised in support of this position. The chief purpose behind the Implied Consent Act is to get drunk drivers off the road. McKay v. Davis, 99 N.M. 29, 30, 653 P.2d 860, 861 (1982). The arrestee should not undermine the Act by being permitted to equivocate. To introduce leniency into a perfectly explicit statute does not serve either the legal community or the public at large. By requiring a driver to take a blood alcohol test, those who are too impaired to drive can be quickly and accurately identified. Their case can be efficiently and fairly processed by the MVD and those who drive while intoxicated will suffer the consequences of their conduct and be deterred from making the same mistake again. Cf. State v. Wiberg, 107 N.M. 152, 156, 754 P.2d 529, 533 (Ct.App.) (stating the purpose of the Act is "to deter drunk driving and to aid in discovering and removing intoxicated drivers from the highways"), cert. denied, 107 N.M. 106, 753 P.2d 352 (1988); State v. Bernhardt, 245 N.J.Super. 210, 584 A.2d 854, 858 (1991) (stating that a bright-line rule removes obstacles to the effective and efficient prosecution of drunk drivers), cert. denied, 126 N.J. 323, 598 A.2d 883 (1991). Motorists who refuse the chemical test undermine this system. The State does not want to give them a second chance.

The State also suggests that a subsequent cure rule will encourage drivers to delay the test as long as possible. In Bierner v. State, the New Mexico Court of Appeals established that the fact finder should base decisions on the BAC at the time of the test, not at the time of driving. 113 N.M. 696, 698-701, 831 P.2d 995, 997-1000 (Ct.App.1992). This standard eases the administrative burden by confining the fact finder's focus to an empirical measurement, not an inferential estimate. This standard should not be exploited by arrestees who hope to register a lower BAC by stalling the taking of the test. The State does not want to invite speculation into how much Suazo's BAC would have dropped in the two hours and fifteen minutes since his refusal. When he was arrested, he failed the field sobriety test, and was possibly responsible for the accident in which his own daughter was injured. It is simply inappropriate to permit this kind of driver to defeat the purpose of the Implied Consent Act by being uncooperative with the police. See Schroeder v. State, 105 Nev. 179, 772 P.2d 1278, 1280 (1989) (citing Noli v. Department of Motor Vehicles, 125 Cal.App.3d 446, 178 Cal.Rptr. 5, 7 (1981)).

Specific to the New Mexico Implied Consent Act are certain provisions designed to promote efficiency. The Act explicitly limits the administrative hearing to five issues:

The hearing shall be limited to the issues:

(1) whether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within this state while under the influence of intoxicating liquor;

(2) whether the person was arrested;

(3) whether...