Partida v. MVD

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date.

8 Petitioner-Appellant,

9 v. NO. 31,460

14 Respondent-Appellee.

16 John A. Dean, District Judge

17 Victor A. Titus 18 Farmington, NM

19 for Appellant

20 N.M. Taxation and Revenue Department 21 Julia A. Belles 22 Santa Fe, NM

23 for Appellee

25 FRY, Judge. 1 In this license revocation case, Petitioner raised four issues, asking the district

2 court to exercise its original jurisdiction with regard to the constitutional validity of

3 the traffic stop that led to Petitioner’s arrest for DWI (Issue 1), and to exercise its

4 appellate jurisdiction to review the validity of the MVD’s decision to revoke

5 Petitioner’s license under the Implied Consent Act, NMSA 1978, Sections 66-8-105

6 to -112 (1978, as amended through 2010) (the Act) (Issues 2, 3, and 4). We issued a

7 calendar notice on Issue 1, proposing summary affirmance. [CN1] Concurrently, we

8 filed an order denying Petitioner’s petition for writ of certiorari on Issues 2, 3, and 4.

9 Petitioner has filed a memorandum in opposition to this Court’s calendar notice that

10 we have duly considered. Unpersuaded, however, we affirm.

12 Petitioner contends that the district court erred by failing to hold a de novo

13 hearing on the constitutionality of the stop, including whether the MVD properly

14 found that the officer lawfully stopped Petitioner, because the stop was not based on

15 reasonable suspicion and/or it was pretextual. [DS 8-25] The calendar notice

16 proposed summary affirmance on the basis that Glynn v. N.M. Taxation & Revenue

17 Dept., 2011-NMCA-031, 149 N.M. 518, 252 P.3d 742, cert. denied, 2011-NMCERT-

18 003, __ N.M. __, __ P.3d __, controls the disposition of this issue. Glynn holds that

19 “a traffic stop that complies with Fourth Amendment requirements is not a necessary

2 1 element of a license revocation under the Act.” Id. ¶ 14. Therefore, the validity of the

2 traffic stop that resulted in a DWI arrest is not an issue for the MVD hearing officer

3 to decide under Section 66-8-112(F) of the Act. Glynn, 2011-NMCA-031, ¶ 19. In

4 addition, because the exclusionary rule does not apply in license revocation

5 proceedings, a person who was improperly arrested but not charged could still face

6 license revocation proceedings. See id. ¶¶ 26-30. Moreover, “[b]ecause the Act does

7 not require the MVD to address the validity of the underlying traffic stop and because

8 the exclusionary rule does not apply in revocation proceedings, the constitutionality

9 of the stop need not be decided by any tribunal for purposes of license revocation

10 under the Act.” Id. ¶ 33.

11 The calendar notice proposed to hold, therefore, that under Glynn, the district

12 court was correct to review the validity of the MVD’s decision to revoke Petitioner’s

13 driver’s license without deciding whether the underlying traffic stop was

14 constitutionally valid or not. Petitioner’s memorandum in opposition [MIO] asks this

15 Court to withhold disposition of this case until the New Mexico Supreme Court

16 decides Schuster v. MVD, slip op. (N.M. Ct. App. 30,023), cert. granted

17 2011-NMCERT-005, __ N.M. __, __ P.3d __. [MIO 2] We decline to do so. See

18 Rule 12-405(C) NMRA (effective for cases pending or filed on or after September 12,

19 2011) (stating that “[a] petition for a writ of certiorari filed pursuant to Rule 12-502

3 1 NMRA or a Supreme Court order granting the petition does not affect the precedential

2 value of an opinion of the Court of Appeals, unless otherwise ordered by the Supreme

3 Court”).

5 We affirm the district court’s decision not to hold a de novo hearing on the

6 constitutional validity of the stop, and we affirm the revocation of Petitioner’s driver’s

7 license.

9 10 CYNTHIA A. FRY, Judge

11 WE CONCUR:

12 13 LINDA M. VANZI, Judge

14 15 J. MILES HANISEE, Judge