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State v. Smith

Court of Appeals of New Mexico

February 18, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
JUHREE SMITH, Defendant-Appellant.

          Appeal From The District Court of Eddy County Lisa B. Riley, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM John J. Woykovsky, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellant


          EMIL J. KIEHNE, Judge Pro Tempore.

         {1} Defendant Juhree Smith appeals her conviction for aggravated driving under the influence of intoxicating liquor (DWI), in violation of NMSA 1978, Section 66-8- l O2(D)(l) (20 l 0, amended 20 l 6), arguing that the results of her breath alcohol test should have been excluded because she was not given a reasonable opportunity to obtain an independent test under the Implied Consent Act (the Act), NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2015). Defendant also argues that the district court committed fundamental, plain, or structural error by commenting on her decision to testify at trial and asking about her understanding of her right not to testify. Finding no error, we affirm Defendant's conviction.


         {2} On September 1, 2013, arresting officers pulled over Defendant's vehicle, administered field sobriety tests, and placed her under arrest for DWI. An officer, reading from a standardized card, explained to Defendant a motorist's rights and responsibilities under the Act, an explanation which, the parties agree, included advising her of her right to arrange for an independent chemical test performed by a medical professional of her choosing. After doing so, the officer asked Defendant to submit to a breath alcohol test, to which Defendant responded, "No, I just want to give blood." Defendant was transported to the police station where an officer explained to her the consequences of refusing to take the breath test; this encounter lasted anywhere from ten to thirty minutes. After discussing her rights under the Act with the officer, Defendant then decided that she would take the breath test. But once the breath test machine was set up, Defendant again refused to take the test. The testing officer continued to run the breathalyzer machine, explaining to Defendant that because she had refused to take the breath test, the machine would print a blank results page, which would be used against her in court. The officer told Defendant that she had one final chance to take the breath test, an opportunity which Defendant took by blowing into the machine. The test measured two samples of Defendant's breath alcohol content at 0.19 and 0.18, respectively. After the breath test was completed, Defendant did not renew her request for a blood test.

         {3} Defendant was convicted in the magistrate court of aggravated DWI, in violation of Section 66-8-102(D)(1), and failure to maintain a lane, contrary to NMSA 1978, Section 66-7-317 (1978). Defendant's case proceeded to the district court on a de novo appeal of the magistrate court's decision. In the district court and during the State's presentation of its case, Defendant moved to exclude the breath test results, arguing that her rights under the Act had been violated because the officers involved in her arrest did not give her the opportunity to take a blood test in addition to the state-administered breath test. The district court denied Defendant's motion, noting that Defendant first requested a blood test after an officer read her a card that explained the Act, then agreed to take a breath test after some discussion with the officers, and made no demand for an independent test following the breath test. Defendant appeals.


         {4} Defendant raises two issues: (1) the district court should have excluded her breath alcohol test results because arresting officers failed to give her an opportunity to arrange for an alternative test as guaranteed by Section 66-8- l 09(B) of the Act; and (2) the district court's statements to Defendant about her right to testily at trial constituted fundamental, plain, or structural error.

         I. The District Court Properly Denied Defendant's Motion to Exclude

         {5} "Rulings admitting or excluding evidence are generally reviewed for an abuse of discretion." State v. Campbell, 2007-NMCA-051, ¶ 9, 141 N.M. 543, 157 P.3d 722. In this case, however, the historical facts are not disputed, and we construe the district court's statements as a ruling that the officers complied with the Act. We therefore apply de novo review in resolving Defendant's claim that the officers did not comply with the Act. See State v. Maxwell, 2016-NMCA-06l, ¶ 7, 376 P.3d 882 (applying de novo review to interpret the Act when the facts were undisputed); State v. Chakerian, 2015-NMCA-052, ¶ 10, 348 P.3d 1027 (same), rev'd on other grounds, 8-NMSC-019');">2018-NMSC-019, --P.3d--.

         {6} Defendant admits that after the officers advised her about the Act, she refused to take a breath test and asked instead to take a blood test, but argues that police should have construed her statement, not merely as a refusal to take their chosen test, but also as a request for an independent test. Defendant further contends, assuming we accept her initial premise, that once she submitted to the breath test, the Act obligated the officers to provide her with a reasonable opportunity to obtain an independent blood test. The officer's failure to do so, the argument goes, violated her rights under the Act, thus requiring the exclusion of the results of the state-administered breath test. At the very least, Defendant argues, the officers should have clarified whether she wanted an independent test.

         {7} Under the Act, a motorist driving a vehicle in New Mexico is deemed to have consented to a blood or breath test, or both, "as determined by a law enforcement officer," if the motorist is arrested on suspicion of driving while under the influence of alcohol or drugs. Section 66-8-107(A). A law enforcement officer may only direct the administration of such a test if he or she has reasonable grounds to believe that the motorist has been driving while under the influence of alcohol or drugs. Section 66-8-107(B). When police officers determine that a test should be administered to a motorist, the Act obligates them to advise the motorist of his or her "right to be given an opportunity to arrange for" a medical professional of the motorist's choice "to perform a chemical test in addition to any test performed at the direction of a law enforcement officer." Section 66-8-109(B). In addition to the obligation to advise an arrested motorist of the right to arrange for an independent test, Section 66-8-l 09(B) requires law enforcement "to provide the arrestee the means to arrange for a qualified person to conduct a chemical test[, ]" and not to "unnecessarily hinder or interfere with an arrestee's attempt to exercise the right to an additional test." Chakerian,8-NMSC-019');">2018-NMSC-019, ΒΆ24. Our Supreme Court has rejected attempts ...

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