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Barraza v. State, Taxation and Revenue Department

Court of Appeals of New Mexico

February 13, 2017



          Ben A. Ortega Albuquerque, NM for Appellant

          Hector H. Balderas, Attorney General Taxation and Revenue Department, Legal Services Bureau Gabrielle Dorian, Special Assistant Attorney General Diana Martwick, Special Assistant Attorney General Santa Fe, NM for Appellee


          MICHAEL E. VIGIL, Judge

         {1} The New Mexico Taxation and Revenue Department, Motor Vehicle Division (MVD), revoked Driver Juan Antonio Ochoa Barraza's license under the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2015), and Driver appealed to the district court. Instead of hearing the case in its appellate capacity, the district court, on its own motion converted the case into a petition for writ of mandamus, arising under its original jurisdiction, and denied mandamus relief. We conclude that the district court erred in converting the appeal into a petition for writ of mandamus, and remand the case to the district court to decide the case as an appeal.


         {2} Bernalillo County Sheriff's Deputy Jason Foster stopped Driver for failing to maintain a traffic lane. Upon seeing that Driver had bloodshot, watery eyes, and smelling the odor of an alcoholic beverage coming from the vehicle, Deputy Foster told Driver to exit the vehicle, whereupon he noted an odor of alcohol coming from Driver's person. Driver told Deputy Foster that he spoke Spanish, and Deputy Foster called for a Spanish-speaking deputy before giving Driver field sobriety tests. Deputy Jareno responded and translated the instructions given by Deputy Foster to Driver. Driver failed the field sobriety tests, and Deputy Foster arrested Driver for driving while under the influence of intoxicating liquor or drugs (DWI). NMSA 1978, § 66-8-102 (2010, amended 2016).

         {3} Although Deputy Jareno was present, Deputy Foster read the implied consent advisory to Driver in English. Deputy Foster informed Driver that he was under arrest for DWI and that the Implied Consent Act required him to submit to a breath or blood test, or both, to determine the alcohol or drug content of his blood. Deputy Foster further informed Driver that if he took the test, he had a right to take an additional test of his choosing, together with the right to a reasonable opportunity to arrange for a physician, licensed nurse, laboratory technician or technologist employed by a hospital or physician to perform the additional test, the cost of which would be paid by the law enforcement agency. Deputy Foster then asked Driver if he agreed to a breath test, and Driver said, "No." Deputy Foster then advised Driver that if he refused, he would lose his driver's license for one year and that, if he was convicted, he could receive an enhanced sentence due to the refusal. Deputy Foster asked Driver, having that in mind, did he now agree to take the tests, and Driver again answered, "No."

         {4} Deputy Foster issued Driver a notice of revocation of his driver's license for one year, and of his right to an administrative hearing before MVD to contest the revocation. Sections 66-8-111(B) and 66-8-111.1. Driver's request for an administrative hearing was granted. The notice of the hearing specified that one of the issues to be decided was whether Driver "refused to submit to requested breath and/or blood testing, after having been advised that failure to submit could result in revocation of [Driver's] privilege to drive[.]"

         {5} A hearing was held before MVD hearing officer Jane Kircher pursuant to Section 66-8-112. After considering the testimony, Kircher set forth the evidence in detail to support her factual determination that Driver spoke English and understood the implied consent advisory given in English by Deputy Foster, including the consequences of refusing the requested tests. Kircher therefore rejected Driver's argument that the due process protected by Article II, Section 18 of the New Mexico Constitution and cases addressing the giving of Miranda warnings in Spanish to a Spanish-speaker required Deputy Foster to read or give the implied consent advisory to Driver in Spanish. Kircher found that Driver "refused to submit to a requested chemical test after he was properly advised that he would lose his privilege to drive if he refused the test[, ]" and entered an order sustaining the revocation of Driver's license for one year. Driver was advised of his right to appeal and seek review of the revocation in the district court.

         {6} Driver appealed MVD's revocation of his driver's license to the district court. See § 66-8-112(H); Rule 1-074(A) NMRA (setting forth the procedure for an appeal from an administrative agency to the district court "when there is a statutory right of review to the district court"). In his statement of issues on appeal, Driver argued that even if he spoke English at some level, there was no way to gauge his actual understanding of what Deputy Foster told him, and because Deputy Jareno was present and able to translate, the implied consent advisory should have been given to him in Spanish, his native language. Driver also argued that Deputy Foster's failure to give the implied consent advisory in Spanish violates the due process protected by Article II, Section 18 of the New Mexico Constitution. MVD responded that the evidence supported the hearing officer's finding that Driver understood English and the implied consent advisory.

         {7} The district court recognized that the case before it was an appeal from MVD's decision revoking Driver's license. However, because the district court ruled that MVD had no jurisdiction to rule on Driver's due process argument, the district court also concluded it had no jurisdiction to decide the appeal. In making this determination, the district court referred to our decision in Maso v. New Mexico Taxation & Revenue Dep't, 2004-NMCA-025, 135 N.M. 152, 85 P.3d 276, affirmed, 2004-NMSC-028, 136 N.M. 161, 96 P.3d 286. Without notice to the parties and on its own motion, the district court then construed the appeal as a petition for writ of mandamus, and, finding no basis to issue a writ of mandamus, denied relief. Driver appeals.


         {8} This case requires us to determine whether the relevant portion of Section 66-8-112 grants authority to MVD to decide Driver's due process claim in an administrative hearing under the Implied Consent Act. This is a question of law that we review de novo. See Schuster v. N.M. Dep't of Taxation & Revenue, 2012-NMSC-025, ¶ 9, 283 P.3d 288 (stating "[w]hether MVD must conclude that the arrest of a driver for DWI is constitutional before revoking a driver's license requires" that Section 66-8-112 be interpreted, and that 'statutory interpretation' presents a question of law that is reviewed de novo); Martinez v. N.M. State Eng'r Office, 2000-NMCA-074, ¶ 20, 129 N.M. 413, 9 P.3d 657 (stating that determining what issues may be decided by the state personnel board under the applicable statutory scheme presents a question of law). "When reviewing a statute, [appellate courts] must give effect to the Legislature's intent by first ...

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