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Gallegos v. Vernier

Court of Appeals of New Mexico

November 19, 2018

DEBRA GALLEGOS, Plaintiff-Appellant,
v.
NEW MEXICO STATE POLICE OFFICER CHARLES J. VERNIER, Defendant-Appellee.

          APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY Emilio J. Chavez, District Judge

          Kennedy Kennedy & Ives Joseph P. Kennedy Adam C. Flores Albuquerque, NM for Appellant

          Jarmie & Associates Mark D. Jarmie Las Cruces, NM for Appellee

          OPINION

          J. MILES HANISEE, Judge

         {¶1} Plaintiff Debra Gallegos brought civil rights claims against Defendant State Police Officer Charles Vernier for violations of her right under the United States Constitution to be free from unreasonable seizure and unlawful arrest. The district court granted Defendant's motion for summary judgment after concluding that Defendant "should be entitled to qualified immunity because [D]efendant reasonably believed that he had probable cause to arrest [P]laintiff at the time of the arrest[, ]" and dismissed Plaintiffs case with prejudice. Concluding that the district court erred in dismissing all of Plaintiff s claims, we affirm in part, reverse in part, and remand for further proceedings.

         BACKGROUND

         {¶2} On May 4, 2013, at approximately two o'clock in the afternoon, Plaintiff was stopped at a DWI checkpoint while traveling on Interstate 25 in Northern New Mexico. Upon making contact with Plaintiff, Defendant "observed that Plaintiff was emitting a 'strong odor of alcoholic beverage' and had 'bloodshot[, ] watery eyes.'" Plaintiff denied drinking that day but acknowledged that she had been drinking the previous night. She informed Defendant that she "had bad allergies" and "had been diagnosed with dry eyes by [her] doctor[, ]" a condition for which she used eye drops. She agreed to submit to standardized field sobriety tests (SFSTs), on which Defendant contended Plaintiff "performed .. . poorly." Specifically, Defendant described Plaintiff as being "unable to remain in the starting position and ha[ving] to move her foot and raise her arms for balance" during the walk-and-turn test, failing to have "smooth pursuit in both eyes" during the horizontal gaze nystagmus test, and putting her foot down during the one-leg-stand test. Defendant arrested Plaintiff for a first-offense DWI, a misdemeanor, and transported her to the local detention center, where Plaintiff agreed to submit to a breathalyzer test.

         {¶3} Approximately thirty minutes after the initial stop, Plaintiff completed a first breathalyzer test, which recorded a result of .000 breath alcohol content (BrAC). Plaintiff submitted to a second breathalyzer test, which also recorded a result of .000 (BrAC). Defendant then transported Plaintiff to a nearby medical center where Defendant ordered hospital medical personnel to draw Plaintiffs blood to test it for drugs. According to Defendant, he did so "[b]ased on Plaintiffs poor performance on the [SFSTs]." When the blood test results were not immediately available, Defendant transported Plaintiff back to the detention center, where she was booked for DWI. The blood test later came back negative for both alcohol and drugs, and the DWI charge was later dismissed for failure to prosecute.

         Procedural History

         {¶4} Plaintiff filed a complaint under 42 U.S.C. §§ 1983 and 1988 (2012) to recover damages for alleged deprivations of her civil rights resulting from Defendant's actions on May 4, 2013. Plaintiff brought two claims in her action. The first was for "unreasonable seizure" based on Defendant's (1) "seizing her for the crime of DWI and transporting her to a hospital after she blew a .000 [on] two breath tests[, ]" (2) "causing her blood to be taken from her person without probable cause to believe that she was under the influence of drugs and without a judicially sanctioned warrant to search[, ]" and (3) "transporting her back to the jail and booking her on the crime of DWI without probable cause to believe that Plaintiff was under the influence of liquor or alcohol and without a judicially sanctioned wan-ant." Plaintiffs second claim was for "unlawful arrest" based on Defendant "arresting her for DWI after she blew a .000 on a breath test" because "Defendant did not have probable cause to believe that she had been driving while under the influence of alcohol or drugs."

         {¶5} Defendant moved for summary judgment, arguing that he is entitled to qualified immunity. Characterizing Plaintiffs case as "an arrest case," Defendant contended that "the proper constitutional provision to analyze Plaintiffs claim is the Fourth Amendment and its probable cause standard." Defendant argued that "[t]he existence of probable cause or arguable probable cause is ... a complete defense to a claim for unreasonable seizure and unlawful arrest brought pursuant to 42 []U.S.C. [§] 1983." Defendant thus concluded that "there was no violation of the Fourth Amendment because there was probable cause or arguable probable cause for Plaintiffs arrest" based on "Plaintiffs poor performance of the SFTSs and [Defendant's] observation[]." Defendant's motion for summary judgment did not address that aspect of Plaintiff s claim alleging unreasonable seizure based on the warrantless blood draw that Defendant ordered.

         {¶6} In her response, Plaintiff argued that the facts, taken in the light most favorable to her, established that Defendant had violated her clearly established Fourth Amendment rights in three ways. Plaintiff first argued that Defendant violated her rights "by arresting her and detaining her after two breath alcohol tests showed that [Plaintiff] was not under the influence of alcohol[.]" Plaintiff next argued that Defendant violated her rights by "failing to release her after two breath alcohol tests showed that [Plaintiff] was not under the influence of alcohol[.]" Plaintiff lastly argued that Defendant violated her rights by "subjecting her to a warrantless blood test unsupported by exigent circumstances[.]" Other than disputing that "there was an odor of alcohol emanating from her vehicle[, ]" Plaintiff did not dispute Defendant's statements of undisputed facts, including Defendant's characterization of her performance on the SFSTs. She did, however, offer certain clarifications and explanations, such as that "the wind was blowing strongly along the highway, which caused her skirt to lift up during the tests" and resulted in her being "distracted and embarrassed" during the SFSTs.

         {¶7} In response to Plaintiffs argument regarding the warrantless blood draw, Defendant argued for the first time in his reply that Plaintiff "consented to the blood draw[, ]" thereby rendering the blood draw constitutional. According to Defendant, Plaintiff "did not and could not contest this fact" and "it is undisputed that [Plaintiff] consented."

         {¶8} The district court granted Defendant's motion for summary judgment. In its order, the district court stated, "The determinative issue is whether Defendant Vernier had probable cause to arrest [P]laintiff for driving while under the influence." The district court concluded that "[u]nder the facts presented to the [c]ourt[, ] Defendant Vernier should be entitled to qualified immunity because [he] reasonably believed that he had probable cause to arrest [P]laintiff at the time of the arrest." The district court's order contained no findings or conclusions related to Plaintiffs unreasonable seizure claim based on the warrantless blood draw and whether Plaintiff consented to the blood draw. From the district court's subsequent order dismissing Plaintiffs case with prejudice, Plaintiff appealed.

         DISCUSSION

         Standard of Review

         {¶9} We review de novo a district court's grant of summary judgment. Benavidez v. Shittiva,2015-NMCA-065, ¶ 8, 350 P.3d 1234. Likewise, we review de novo the applicability of qualified immunity, which is a question of law. Starko, Inc. v. Gallegos,2006-NMCA-085, ¶11, 140 N.M. 136, 140 P.3d 1085. Ordinarily, summary judgment may only be granted in New Mexico when, viewing the evidence in the light most favorable to the nonmoving part, "there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Romero v. Philip Morris Inc.,2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation omitted). However, courts "review summary judgment decisions involving a qualified immunity defense somewhat differently than other summary judgment rulings." Nelson v. McMitllen,207 F.3d 1202, 1205-06 (10th Cir. 2000) (internal quotation marks and citation omitted). Because of "the unique nature of qualified immunity, . . . [w]hen a defendant raises the qualified immunity defense on summary judgment, the burden shifts to the plaintiff to meet a strict two-part test." Nelson, 207 F.3d at 1206; cf. Romero,2010-NMSC-035, ¶ 10 (explaining in the context of a motion for summary judgment not based on qualified immunity that "[i]n New Mexico, summary judgment may be proper when the moving party has met its initial burden of establishing a prima facie case for summary judgment"). "First, the plaintiff must demonstrate that the defendant's actions violated a constitutional or statutory right. Second, the plaintiff must show that the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue." Nelson, 207 F.3d at 1206 (internal quotation marks and citation omitted). A plaintiffs failure to meet either of these burdens entitles the defendant to qualified immunity and a grant of summary judgment. See Benavidez,2015-NMCA-065, ΒΆΒΆ 11-14 (affirming the district court's dismissal of the plaintiffs "unreasonable ...


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