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State v. Chakerian

Supreme Court of New Mexico

February 22, 2018

STATE OF NEW MEXICO, Plaintiff-Petitioner,
v.
STEFAN CHAKERIAN, Defendant-Respondent.

         ORIGINAL PROCEEDING ON CERTIORARI Stan Whitaker, District Judge

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

          Dane Eric Hannum Albuquerque, NM for Respondent

          OPINION

          PETRA JIMENEZ MAES, Justice

         {¶1} New Mexico law provides a motorist arrested for driving while under the influence of intoxicating liquor (DWI) the right to an independent chemical test in addition to the test administered by the police. See NMSA 1978, § 66-8-109(B) (1993). In this case we address (1) whether the arresting officer denied Defendant Stefan Chakerian this right when the officer provided Defendant with a telephone and telephone directory, but took no additional steps to help Defendant arrange for the test; and (2) what role law enforcement officers have after an arrestee expresses a desire for an additional test under Section 66-8-109(B). The Court of Appeals held that Section 66-8-109(B) requires law enforcement to "meaningfully cooperate" with an arrestee who desires to obtain an additional chemical test, and reversed Defendant's DWI conviction. State v. Chakerian, 2015-NMCA-052, ¶ 19, 348 P.3d 1027.

         {¶2} We hold that Section 66-8-109(B) requires law enforcement to advise an arrestee of the arrestee's right to be given an opportunity to arrange for a qualified person of the arrestee's own choosing to perform a chemical test in addition to any test performed at the direction of the arresting officer. This section does not, however, confer any additional obligation on law enforcement to facilitate the arrestee in actually arranging for the test. Accordingly, we reverse the Court of Appeals and affirm the metropolitan court convictions of DWI and speeding. Because the convictions are affirmed, we do not address the issue of what the sanction should be when the State denies a driver the statutory right to an independent test. We remand to the metropolitan court for further proceedings in accordance with this opinion.

         I. FACTS AND PROCEDURAL HISTORY

         {¶3} Albuquerque Police Officer Mark Aragon pulled over Defendant Stefan

         Chakerian around 2 a.m. for speeding on Central Avenue in Albuquerque. Officer Aragon approached Defendant and, after he smelled alcohol on Defendant's breath, began a DWI investigation. After the investigation, Officer Aragon arrested Defendant for DWI and took him to the Southeast Albuquerque Police Department (APD) substation in order to conduct a breath alcohol test. Before beginning the breath test, Officer Aragon read the implied consent rule to Defendant, which included Defendant's right to an independent test performed by a person of Defendant's own choosing. At the substation, the Intoxilyzer 8000 machine malfunctioned after the first breath test, and the test could not be completed. Officer Aragon then drove Defendant to the downtown Prisoner Transport Center (PTC) to attempt another breath test. At the PTC, Officer Aragon was able to obtain two breath samples from Defendant, which indicated breath alcohol concentrations of .12 and .11, respectively. These breath alcohol concentrations were recorded onto a breath card.

         {¶4} After completing the test, Officer Aragon drove Defendant to the Metropolitan Detention Center (MDC). At the MDC, [1] Defendant told Officer Aragon that he wanted an additional chemical test. Officer Aragon allowed Defendant access to a telephone, a phone directory, and a pen while they waited for a routine medical screening of Defendant. Officer Aragon testified that Defendant had access to a telephone and telephone directory for twenty to thirty minutes; Defendant testified that he had this access for approximately ten to fifteen minutes. When the time came for the medical screening, Defendant told Officer Aragon he was finished with the telephone and telephone directory.

         {¶5} Defendant moved to suppress the admission of the breath card at trial in the metropolitan court on the grounds that he was not afforded his right to an independent test pursuant to Section 66-8-109(B). The trial judge denied the motion but stated, "I just don't see, the way things happened, that he was really afforded an opportunity to have a blood test given to him." The judge admitted the breath card and found Defendant guilty of DWI and speeding.

         {¶6} Defendant appealed to the district court. He argued that the trial judge found he was not afforded his right to a reasonable opportunity for an independent test and, therefore, the trial judge erred in admitting the breath card. The State argued that the trial judge made no finding that Defendant was not given a reasonable opportunity for an independent test and that the trial judge correctly denied Defendant's motion to suppress the breath card.

         {¶7} The district court affirmed the DWI conviction on the grounds that Defendant failed to establish any prejudice regardless of whether he was given a reasonable opportunity to obtain an independent test or not, citing State v. Gardner, 1998-NMCA-160, ¶ 13, 126 N.M. 125, 967 P.2d 465 (explaining the burden is on a defendant to "show prejudice from the statutory violation[] before suppression of the test results or setting aside the conviction[] [is] required"). Defendant appealed to the Court of Appeals. In a divided decision, the majority concluded that the plain meaning of Section 66-8-109(B) "imposes a duty upon the State, a duty that requires law enforcement to meaningfully cooperate with an arrestee's express desire to arrange for an independent blood test. The level of meaningful cooperation required by law enforcement will depend upon the facts and circumstances in each particular case." Chakerian, 2015-NMCA-052, ¶ 19. The Court determined that Defendant was not afforded his right of a reasonable opportunity to arrange for an independent chemical test and reversed the district court's affirmation of the metropolitan court judgment. Id. ¶¶ 23, 33. The Court remanded the case to the trial court to determine the sanctions for the statutory violation. Id. ¶¶ 32-33.

         {¶8} Dissenting from the majority, Judge Zamora argued that Section 66-8-109(B) does not require police to assist an arrestee in arranging and effectuating an independent test. "The way our statutory provision is currently written means being informed of this statutory right, being given a reasonable opportunity to arrange for the independent ...


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