1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _______________
3 Filing Date: January 14, 2015
4 NO. 32,872
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 STEFAN CHAKERIAN,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Stan Whitaker, District Judge
12 Hector Balderas, Attorney General 13 Pranava Upadrashta, Assistant Attorney General 14 Santa Fe, NM
15 for Appellee
16 D. Eric Hannum 17 Albuquerque, NM
18 for Appellant 1 OPINION
2 VIGIL, Judge.
3 {1} The question presented in this case is whether a defendant who was provided
4 with a telephone book and access to a telephone for a period of twenty to thirty
5 minutes in the early hours of the morning, was given a reasonable opportunity to
6 arrange for an independent chemical test pursuant to the Implied Consent Act (the
7 Act), NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2007). We
8 conclude that Defendant was not afforded his statutory right under the Act. We
9 therefore reverse the judgment of the district court and remand to the metropolitan
10 court for further proceedings.
11 BACKGROUND
12 {2} At the bench trial in the metropolitan court before Judge Benavidez (trial
13 court), the following facts were established. Albuquerque Police Officer Mark
14 Aragon initiated a traffic stop of Defendant’s vehicle after his dash-mounted radar
15 indicated Defendant was traveling forty-seven miles per hour in a thirty-five
16 mile-per-hour zone. Upon coming into contact with Defendant, Officer Aragon
17 observed that Defendant had bloodshot, watery eyes and emitted an odor of alcohol.
18 He asked Defendant if he had been drinking, and Defendant responded “not much.” 1 After administering field sobriety tests, Officer Aragon concluded that Defendant was
2 driving while under the influence of alcohol (DWI) and arrested him.
3 {3} Officer Aragon transported Defendant to a police substation to administer a
4 breath alcohol (BAC) test. Before beginning the test, Officer Aragon advised
5 Defendant of his rights and obligations under the Act. This included Defendant’s
6 right to be given an opportunity to arrange for a qualified person of his own choosing
7 to perform a chemical test of his blood for alcohol content. See § 66-8-109(B)
8 (directing that the law enforcement officer shall advise the person of his right to be
9 given an opportunity to arrange for a qualified person “of his own choosing” to
10 perform a chemical test of his blood). Because the machine at the substation
11 delivered an error message when Officer Aragon attempted to obtain a breath sample
12 from Defendant, he transported Defendant to the Prisoner Transport Center to
13 administer a breath test. The BAC test measured two samples of Defendant’s breath
14 alcohol content at .12 and .11 at 3:37 and 3:40 a.m., respectively.
15 {4} At the Prisoner Transport Center, Officer Aragon again advised Defendant of
16 his right to arrange for an independent test of his blood, and Defendant requested that
17 he be afforded that right. Officer Aragon thereupon took Defendant to a table with
18 a telephone and Yellow Pages phonebook. Defendant testified, “I don’t actually
19 know what to look up to get a blood test taken. There was nothing under
2 1 phlebotomists . . . I had the phone and a phonebook and I couldn’t find any numbers
2 that could actually—I mean, I didn’t know what to look up.” Defendant wrote phone
3 numbers down but he did not use any of them because, although he wanted a blood
4 test, he felt too much time had already passed. Officer Aragon believed they were at
5 the table for twenty to thirty minutes before the medical screening officer arrived, and
6 Defendant was then booked into custody.
7 {5} Defendant objected to the admission of the BAC test results, arguing that he
8 was not given a reasonable opportunity to arrange for an independent chemical test
9 of his blood for alcohol as required by the Act. The objection was overruled, and the
10 BAC test results were admitted into evidence. However, the trial court expressed its
11 reservation in having admitted the test results. Before announcing the verdict, the
12 trial court said:
13 One of the most troubling things with respect to this case is whether or 14 not Defendant had an opportunity to take another breath, another blood 15 test at his request. From what’s been presented to me today, I mean, I 16 just don’t see, the way things happened, that he was really afforded an 17 opportunity to have a blood test given to him.
18 Based on the test results admitted into evidence, the trial court found Defendant
19 guilty of per se DWI and speeding. See § 66-8-102(C)(1) (providing that it is per se
20 unlawful to drive a vehicle if the person has an alcohol concentration of .08 or more
3 1 in the person’s blood or breath within three hours of driving the vehicle). The verdict
2 notwithstanding, the trial court added:
3 I have really, some really big issues with the fact that I don’t know that 4 he was actually allowed to take another test that was going to be 5 meaningful or not. I mean, I’m just not seeing it, given what was 6 presented to me. That may be an issue that defense might want to 7 pursue, you know, on appeal. He testified that he was just given a book 8 and a phone. I don’t know if that is meaningful or not. His actions, and 9 he testified also, you know, ‘I didn’t object strenuously,’ like I had 10 stated earlier. I think he really did want to get the test done. I don’t 11 know that he had a real opportunity to get it done.
12 {6} Defendant appealed the DWI and speeding convictions to the district court.
13 The district court affirmed the DWI conviction on a basis not raised in the trial court
14 or argued by either party in the appeal. In its memorandum opinion, the district court
15 asserted that even if Defendant had obtained an independent BAC test of his blood,
16 the test results “would have had to register nearly a third lower” than the breath test
17 results of .12 and .11 obtained by Officer Aragon. Further, said the district court,
18 because Defendant presented no evidence that an independent test “would have
19 demonstrated an error of such magnitude[,]” it concluded that Defendant “failed to
20 establish prejudice and, regardless of whether the officer afforded [Defendant] a
21 reasonable opportunity to obtain an independent test, suppression was not required.”
22 Defendant appeals from the decision of the district court, and for the reasons stated
23 below, we reverse.
4 1 DISCUSSION
2 {7} Defendant raises two issues on appeal. First, Defendant contends he was not
3 given a reasonable opportunity to arrange for an independent test of his blood as
4 required by Section 66-8-109(B) of the Act. Second, Defendant asserts that the
5 district court erred in basing its decision on an issue that was not considered by the
6 trial court or raised on appeal. In response, the State argues that no error was
7 committed in the trial court or on appeal. In addition, the State contends that
8 Defendant’s appeal to us from the district court—his second appeal—is not an appeal
9 as a matter of right over which we must exercise jurisdiction. Since briefing
10 concluded in this case, we issued our opinion in State v. Carroll, 2013-NMCA-__,
11 __ P.3d __ (No. 32,909, Oct. 21, 2013), rejecting the State’s jurisdictional challenge.
12 We therefore do not address this matter further and proceed to address Defendant’s
13 arguments.
14 The Right to Arrange for an Independent Chemical Test
15 {8} The first issue we address is the right of a motorist arrested for DWI to arrange
16 for an independent chemical test of his blood for alcohol under Section 66-8-109(B),
17 and whether, under the circumstances, Defendant was afforded that right.
5 1 Standard of Review
2 {9} Prior to analyzing whether Defendant was afforded his statutory right under
3 Section 66-8-109(B), we clarify our standard of review. Defendant asserts that the
4 trial court’s statement quoted above before admitting the breath test results into
5 evidence (“I just don’t see, the way this happened, that he was really afforded an
6 opportunity to have a blood test given to him.”) constitutes a finding of fact.
7 Therefore, Defendant argues that our review is limited to whether this “finding” is
8 supported by substantial evidence. On the other hand, the State contends that because
9 the breath test results were admitted into evidence, we are limited to reviewing
10 whether the trial court abused its discretion in admitting the test results. We reject
11 both assertions.
12 {10} Historical facts, as found by the fact finder, are reviewed under the substantial
13 evidence standard, whereas interpreting or applying the law to the facts is reviewed
14 de novo. See State v. King, 2012-NMCA-119, ¶ 13, 291 P.3d 160 (stating that
15 statutory review of the Act is under a de novo standard); State v. Vaughn, 2005-
16 NMCA-076, ¶ 33, 137 N.M. 674, 114 P.3d 354 (interpreting provisions of the Act).
17 Here, the historical facts set forth above are not disputed, and we construe the
18 comments of the trial court as questioning whether, under the facts, the statute was
6 1 complied with by Officer Aragon. We therefore proceed to determine de novo
2 whether, under those facts, Defendant was deprived of his statutory right.
3 Analysis
4 {11} State v. Jones, 1998-NMCA-076, ¶ 24, 125 N.M. 556, 964 P.2d 117, is the only
5 case examining the meaning of Section 66-8-109(B). Therein, we held that the statute
6 “entitles arrestees to a reasonable opportunity to contact a qualified person of their
7 choosing who may be able to perform the test.” Jones, 1998-NMCA-076, ¶ 24. We
8 further concluded that the statute entitles “those arrested on charges of DWI to choose
9 who will perform the independent chemical test upon them by drawing the blood, as
10 well as to choose who analyzes the blood sample.” Id. ¶ 23.
11 {12} In Jones, the arresting officer read the defendant the Act advisory and
12 administered two breath tests. Id. ¶ 4. Once the tests were completed, the defendant
13 requested an independent blood test, and specified that he wanted his own doctor, not
14 a blood technician on contract with the police department, to draw his blood. Id. ¶ 5.
15 However, the officer did not allow the defendant to use a telephone, nor did the
16 officer make any calls on the defendant’s behalf. Id. Under these circumstances, we
17 concluded it was clear that the defendant was denied a reasonable opportunity to
18 contact his doctor. Id. ¶ 25. Because the statutory violation was so clear in Jones, it
19 was not necessary for us to decide whether anything more than access to a telephone
7 1 was required to afford a DWI arrestee “a reasonable opportunity to contact someone
2 of his choosing to perform the blood test upon him.” Id.
3 {13} Unlike Jones, this case requires us to address whether providing access to a
4 telephone and Yellow Pages phonebook provided Defendant “a reasonable
5 opportunity to contact someone of his own choosing to perform the blood test upon
6 him.” To guide our resolution of this question, we first examine the structure of the
7 Act and the rights and duties imposed by the Legislature in the Act.
8 {14} The purpose of the Act is to deter DWI and to aid in discovering and removing
9 an intoxicated driver from the highway. See McKay v. Davis, 1982-NMSC-122, ¶ 4,
10 99 N.M. 29, 653 P.2d 860. To this end, the Act declares that any person who operates
11 a motor vehicle “shall be deemed to have given consent” to a chemical test of his
12 breath or blood “for the purpose of determining the drug or alcohol content of his
13 blood” if the person is arrested for DWI. Section 66-8-107(A). The test “shall be
14 administered at the direction of a law enforcement officer” who has reasonable
15 grounds to believe the person is DWI. Section 66-8-107(B). While the driver may
16 refuse to submit to a test, his driver’s license may be revoked and he subjects himself
17 to an enhanced charge of aggravated DWI for refusing to submit to the test. Sections
18 66-8-111 (A), (B); 66-8-112; and 66-8-102(D)(3). When the test shows that the
19 breath or blood of the driver contains an alcohol concentration of eight one
8 1 hundredths or more (or four one hundredths or more if the person is driving a
2 commercial motor vehicle), “[t]he arresting officer shall charge the person tested”
3 with DWI. Section 66-8-110(C). The test results are admissible in evidence in any
4 civil or criminal action arising out of the acts alleged to have been committed by the
5 person while driving a motor vehicle under the influence of intoxicating liquor or
6 drugs. Section 66-8-110(A). Finally, on the basis of the test results, the Act creates
7 presumptions about whether the driver is DWI. Section 66-8-110(B).
8 {15} The alcohol content of the driver’s blood is the critical evidence in DWI
9 prosecutions such as the one before us here. A driver has a right to challenge the
10 reliability and results of a test for alcohol at trial. King, 2012-NMCA-119, ¶ 16; State
11 v. Chavez, 2009-NMCA-089, ¶ 9, 146 N.M. 729, 214 P.3d 794; State v. Martinez,
12 2007-NMSC-025, ¶ 24, 141 N.M. 713, 160 P.3d 894. However, if the driver’s blood
13 is not preserved for testing, critical evidence to make such a challenge is irretrievably
14 lost, and a question arises as to whether due process was violated. See Montoya v.
15 Metro. Court, 1982-NMSC-092, ¶¶ 2-7, 98 N.M. 616, 651 P.2d 1260 (addressing
16 whether the State is constitutionally required to preserve what remains of a breath
17 alcohol sample for independent testing by persons charged with DWI), abrogated on
18 other grounds by State v. Alberico, 1993-NMSC-047, ¶ 40, 116 N.M. 156, 861 P.2d
19 192. In addition, this critical evidence is subject to constant changes over time. As
9 1 the expert in State v. Christmas, 2002-NMCA-020, ¶ 26, 131 N.M. 591, 40 P.3d 1035
2 explained:
3 [W]hen alcohol is ingested, it travels first to the stomach, and is 4 eventually absorbed into the bloodstream. During this first stage, or 5 ‘absorption stage,’ an individual’s BAC continues to rise. However, 6 absorption rates can vary tremendously, based on any number of 7 anatomical, physiological, and situational factors. At some point, the 8 alcohol level in a person’s blood or breath reaches a second stage, or 9 ‘peak level.’ After the BAC reaches a peak, an individual enters the 10 so-called ‘elimination phase,’ as alcohol is metabolized by the body and 11 the BAC level begins to decline. . . . [T]hese three phases can overlap, 12 because the body begins the process of elimination even as it may still 13 be absorbing alcohol . . . . [T]his phenomena [can be described] as an 14 ‘alcohol time response curve,’ that can vary greatly with the individual 15 and the situation. . . . [I]t is not always possible to tell whether an 16 individual’s BAC was on the rise, at its peak, or on the decline at some 17 earlier point in time, like the time of driving[.]
18 {16} In response to these concerns, at least one state has concluded that the
19 constitutional due process right to obtain exculpatory evidence includes a right to
20 obtain an alcohol test independent of the test administered by the arresting officer and
21 that this includes being informed of that constitutional right at the time of the arrest.
22 State v. Minkoff, 2002 MT 29, ¶¶ 9-10, 308 Mont. 248, 42 P.3d 223; State v. Strand,
23 951 P.2d 552, 554-55 (Mont. 1997), overruled on other grounds by Minkoff, 2002
24 MT 29, ¶ 23; State v. Swanson, 722 P.2d 1155, 1157-58 (Mont. 1986).
25 {17} It is within this factual and legal context that the Legislature adopted Section
26 66-8-109(B). The statute directs:
10 1 The person tested shall be advised by the law enforcement officer 2 of the person’s right to be given an opportunity to arrange for a 3 physician, licensed professional or practical nurse or laboratory 4 technician or technologist who is employed by a hospital or physician 5 of his own choosing to perform a chemical test in addition to any test 6 performed at the direction of a law enforcement officer.
7 {18} Thus, by enacting Section 66-8-109(B), our Legislature has crafted a careful
8 balance. On the one hand, the Legislature has provided the State with strong tools for
9 deterring and prosecuting DWI offenses, and on the other hand, the Legislature has
10 protected the rights of citizens by requiring the State to provide an arrestee with a
11 meaningful opportunity to reasonably preserve and test the critical and potentially
12 exonerating evidence. As explained in Fugere v. Taxation & Revenue Dep’t, 1995-
13 NMCA-040, ¶ 21, 120 N.M. 29, 897 P.2d 216, a person accused of DWI who takes
14 the test ordered by the arresting officer then has a right to “take an additional test of
15 his own choosing, and to thereafter challenge any disparate results.” Id. Section 66-
16 8-109(B) affords fundamental fairness and at the same time, constitutional due
17 process. In fact the Legislature has determined that the right is so fundamental and
18 important, that when it is exercised, “the cost of that test shall be paid by the law
19 enforcement agency[.]” Section 66-8-109(E). We now proceed to determine whether
20 Defendant was afforded his statutory right.
11 1 {19} The statute grants arrestees a protected right in the form of an “opportunity”
2 to arrange for an independent blood test in order to challenge the critical BAC
3 evidence. The word “opportunity” means in part “a combination of circumstances,
4 time, and place suitable or favorable for a particular activity or action.” Webster’s
5 Third New Int’l Dictionary 1583 (unabridged ed. 2002). Thus, an opportunity
6 “indicates a combination of circumstances facilitating a certain action or inviting a
7 certain decision.” Webster’s Third New Int’l Dictionary, supra, at 1583. In Jones,
8 we added that the statute requires “that the arrestee will be given a reasonable
9 opportunity to arrange for an additional test.” 1998-NMCA-076, ¶ 24 (emphasis
10 added). We therefore conclude that the plain meaning of the statue imposes a duty
11 upon the State, a duty that requires law enforcement to meaningfully cooperate with
12 an arrestee’s express desire to arrange for an independent blood test. The level of
13 meaningful cooperation required by law enforcement will depend upon the facts and
14 circumstances in each particular case.
15 {20} Doing nothing more than providing access to a Yellow Pages telephone book
16 and telephone in the early morning hours fails to rise to the level of meaningful
17 cooperation required by Section 66-8-109(B). A telephone book is simply a list of
18 names and telephone numbers of telephone subscribers who allow their number to be
19 published. In this regard, a telephone book is over-inclusive in that most—if not
12 1 all—of the numbers listed do not relate to a person who conducts chemical tests of
2 blood for alcohol. Further, while a Yellow Pages telephone book has categories of
3 goods and services under which names and telephone numbers are listed, one will
4 search in vain for the categories of a “physician, licensed professional or practical
5 nurse or laboratory technician or technologist who is employed by a hospital or
6 physician” who is authorized to draw blood or test blood for alcoholic content. In
7 this sense, a telephone book is under-inclusive.
8 {21} The State failed to present any evidence or argument demonstrating that
9 providing Defendant with the Yellow Pages telephone book and telephone was
10 reasonably likely to result in Defendant being able to arrange for an independent
11 chemical test. The only evidence we have is Defendant’s testimony that he tried to
12 find someone listed in the phone book who could take a sample of his blood, but he
13 was not able to do so—“I didn’t know what to look up.” The fact that some
14 percentage of citizens arrested for DWI might be able to successfully arrange for an
15 independent blood test in the early morning hours by using the Yellow Pages and a
16 telephone is not determinative. The critical issue is whether an ordinary person under
17 arrest for being impaired can reasonably arrange for an independent blood test in the
18 early morning hours by simply using the Yellow Pages and a telephone. The
19 “reasonable person standard” is employed in many other contexts, and we see no
13 1 reason why it should not apply in this case as well. See Cochrell v. Mitchell, 2003-
2 NMCA-094, ¶ 21, 134 N.M. 180, 75 P.3d 396 (interpreting statutory notice
3 requirement under a reasonable person standard); Bogan v. Sandoval Cnty. Planning
4 & Zoning Comm’n, 1994-NMCA-157, ¶ 24, 119 N.M. 334, 890 P.2d 395 (concluding
5 that compliance with an ordinance requiring notice is measured by what the average
6 citizen reading the notice would understand).
7 {22} Under the circumstances, Officer Aragon only provided Defendant with a mere
8 possibility of being able to arrange for an independent test, and more than that is
9 required by the plain language of the statute—the opportunity provided must be
10 meaningful. The State’s duty to participate and cooperate with an arrestee’s
11 opportunity to obtain an independent blood test cannot be so minimal that it reduces
12 an ordinary citizen’s protected right to the level of being illusory. See City of Deming
13 v. Deming Firefighters Local 4521, 2007-NMCA-069, ¶ 23, 141 N.M. 686, 160 P.3d
14 595 (“We . . . do not give effect to legislative intent by reading a statute in a way that
15 would render it meaningless.”); Gray v. Sanchez, 1974-NMSC-011, 86 N.M. 146, 520
16 P.2d 1091 (Montoya, J., specially concurring) (observing that the manner in which
17 a statute is executed cannot result in rendering the statutory right illusory).
18 Objectively, Officer Aragon’s actions in this case were not sufficient to provide an
19 ordinary person with the means to reasonably obtain an independent test of his or her
14 1 blood to determine its alcohol content as required by Section 66-8-109(B). State v.
2 Herrera, 1974-NMSC-037, ¶ 6, 86 N.M. 224, 522 P.2d 76 (“We will not construe
3 statues to achieve an absurd result or to defeat the intended object of the
4 legislature.”).
5 {23} We therefore hold that Defendant was not afforded his statutory right of a
6 reasonable opportunity to arrange for an independent chemical blood test of his own
7 choosing. We acknowledge that other states have come to a different conclusion in
8 interpreting their own statute. See Schulz v. Comm’r of Pub. Safety, 760 N.W.2d 331,
9 334 (Minn. Ct. App. 2009) (“Other than providing a telephone, an officer has no
10 obligation to assist a driver to obtain an additional test.”); State v. Dake, 529 N.W.2d
11 46, 49 (Neb. 1995) (finding that while “the police cannot hamper a motorist’s efforts
12 to obtain independent testing, they are under no duty to assist in obtaining such
13 testing beyond allowing telephone calls to secure the test”). However, we are not
14 persuaded by their reasoning in light of how our Legislature has chosen to balance
15 the interests at stake while maintaining fundamental fairness and affording due
16 process.
17 Prejudice From the Statutory Violation and Sanctions
18 {24} We now address Defendant’s second argument, that the district court erred in
19 affirming the DWI conviction on grounds that Defendant failed to demonstrate
15 1 prejudice, a basis not raised in the trial court or argued by either party on appeal to
2 the district court. In an on-the-record appeal from the metropolitan court the district
3 court is the equivalent of an appellate court. See State v. Trujillo, 1999-NMCA-003,
4 ¶ 4, 126 N.M. 603, 973 P.2d 855 (“For on-record appeals the district court acts as a
5 typical appellate court, with the district judge simply reviewing the record of the
6 metropolitan court trial for legal error.”). Thus, Defendant asserts, the district court
7 improperly decided Defendant was not prejudiced, because it was not an issue raised
8 by either party in the trial court or on appeal to the district court. We agree with
9 Defendant. See State v. Jade G., 2007-NMSC-010, ¶ 24, 141 N.M. 284, 154 P.3d 659
10 (acknowledging that as a general rule, propositions of law not raised in the trial court
11 cannot be considered sua sponte by an appellate court).
12 {25} This case illustrates one of the reasons why, as a general rule, issues not raised
13 at trial should not be considered sua sponte on appeal. The trial court found
14 Defendant guilty of per se DWI under Section 66-8-102(C)(1) (providing that it is per
15 se unlawful to drive a vehicle if the person has an alcohol concentration of .08 or
16 more in the person’s blood or breath within three hours of driving the vehicle). In
17 affirming the conviction on appeal, the district court noted that Defendant’s BAC test
18 results were .12 and .11. Therefore, reasoned the district court, to avoid a per se
19 conviction, Defendant’s independent tests “would have had to register nearly a third
16 1 lower[,]” and Defendant “presented no evidence an independent test would have
2 demonstrated an error of such magnitude.” The district court therefore concluded that
3 Defendant failed to establish prejudice and regardless of whether Defendant was
4 afforded his right to an independent test, suppression was not required. However,
5 there was no basis in the record to support the premise on which these conclusions
6 were reached. In effect, the district court made findings of fact and conclusions of
7 law without any evidentiary support while sitting in its capacity as an appellate court.
8 This was improper and itself a basis for reversal. See Cadena v. Bernalillo Cnty. Bd.
9 of Comm’rs, 2006-NMCA-036, ¶¶ 3, 18, 139 N.M. 300, 131 P.3d 687 (concluding
10 that the district court improperly acted outside its capacity as an appellate court by
11 engaging in fact finding).
12 {26} Moreover, the district court erred in the analysis that it did employ. In coming
13 to its conclusions, the district court relied on Jones, 1998-NMCA-076. However, that
14 reliance was misplaced. In Jones, the defendant was arrested for DWI and submitted
15 to a BAC test of his breath for alcohol. Id. ¶ 4. After being informed of his right to
16 arrange for an independent test of his blood, he stated he wanted to call his doctor to
17 perform the test. Id. ¶¶ 4-5. The arresting officer told the defendant that the police
18 department had a blood technician on contract to perform blood tests at the jail, and
19 did not allow the defendant to use a telephone, nor did he make any calls on the
17 1 defendant’s behalf. Id. ¶¶ 5-6. Based on the BAC breath test results of .17 and. 17,
2 the defendant was charged with aggravated DWI. Id. ¶¶ 4, 7. See § 66-8-102(D)(1)
3 (providing that aggravated DWI consists of driving a motor vehicle with an alcohol
4 concentration of sixteen one hundredths or more in the driver’s breath or blood). At
5 the defendant’s trial for DWI in the metropolitan court, the court dismissed the
6 aggravated portion of the DWI charge as a sanction because the State failed to afford
7 the defendant an opportunity to have a person of his choosing draw his blood, Jones,
8 1998-NMCA-076, ¶ 7, but refused to suppress the breath alcohol test results. Id.
9 ¶ 11. The defendant was found guilty of DWI, first offense, which was affirmed in
10 his on the record appeal to the district court. Id. ¶ 7.
11 {27} The defendant in Jones then appealed to this court, arguing in part that he was
12 entitled to suppression of the BAC test results because he was not afforded his
13 statutory right to arrange for an independent test under Section 66-8-109(B). Jones,
14 1998-NMCA-076, ¶ 11. We stated it was “unlikely” that a blood alcohol test of the
15 defendant’s own choosing would have shown he was not driving while intoxicated,
16 id. ¶ 30, and that the defendant’s own test “would have had to have shown an error
17 of 100% in the State’s test.” Id. ¶ 31. While Jones does not inform us on what basis
18 these statements were made, it is well settled that such questions are matters of
19 scientific expertise, and constitute adjudicative facts not subject to judicial notice.
18 1 See State v. Day, 2008-NMSC-007, ¶ 31, 143 N.M. 359, 176 P.3d 1091 (discussing
2 the necessity of use of scientific retrograde extrapolation evidence to determine BAC
3 at an earlier time); State v. Baldwin, 2001-NMCA-063, ¶ 17, 130 N.M. 705, 30 P.3d
4 394 (“But a BAC reading from a laboratory test is just a sterile number; by itself it
5 tells us nothing about a driver’s condition hours earlier. Extrapolating backward in
6 time can be a difficult task even for experts.”). With the foregoing statements as a
7 backdrop, Jones held that any possible prejudice suffered by the defendant was cured
8 by the dismissal of the aggravated portion of the DWI charge, and he was not entitled
9 to any further relief. 1998-NMCA-076, ¶¶ 31-32.
10 {28} In this case, on the other hand, there is no evidence in the record on which the
11 district court could make the findings it did to conclude that Defendant was not
12 prejudiced. First of all, the issue was raised by the district court on its own motion
13 for the first time on appeal, and Defendant never had an opportunity to argue to the
14 district court why or how he was prejudiced. Secondly, no blood sample was taken
15 or preserved to enable Defendant to prove prejudice, and the district court opinion
16 fails to explain how Defendant could possibly prove what the results of a test would
17 be on a blood sample which does not exist. Finally, unlike Jones, in which the trial
18 court imposed sanctions for the statutory violation, no sanction was imposed in this
19 case. For the foregoing reasons, we conclude that the district court improperly relied
19 1 on Jones in concluding that Defendant was not prejudiced when the State failed to
2 afford Defendant his right under Section 66-8-109(B).
3 {29} Since we have concluded that Defendant’s right to an independent test under
4 Section 66-8-109(B) was violated, we now address the matter of sanctions. While the
5 statute is silent on this question, we are confident that the Legislature intended for
6 consequences to result when the State does not afford a driver the protections of
7 Section 66-8-109(B). A right with no remedy for its violation is an empty right.
8 Because our Legislature has established a procedure, consistent with due process, for
9 preserving material evidence for independent testing in Section 66-8-109(B), we look
10 to cases construing the right to access evidence material to guilt, innocence, or
11 punishment for guidance on the question of sanctions.
12 {30} We begin with State v. Lovato, 1980-NMCA-126, 94 N.M. 780, 617 P.2d 169,
13 where the defendant was convicted of homicide by vehicle while DWI on the basis
14 of a test performed on a sample of his blood by a chemist of the police department.
15 Id. ¶ 2. The test showed a blood alcohol content of .10 percent, the minimum at that
16 time for presuming intoxication. Id. Because the State made no effort to preserve the
17 blood taken from the defendant, and the blood kit was immediately destroyed after
18 the blood analysis was completed, we concluded the defendant’s right to due process
19 was violated and we reversed and remanded for a new trial without the blood test
20 1 results. Id. ¶¶ 1, 3, 5, 6, 10. We said, “In effect, our holding is that if the State is
2 going to use as evidence the results of a blood alcohol test, it must make provisions
3 for its preservation so that if a timely request is made for retesting by the defendant,
4 the sample taken is available.” Id. ¶ 10.
5 {31} In Lovato, we concluded that because the defendant’s right to due process was
6 violated, he was entitled to suppression of the blood test results. Suppression of the
7 blood test results may be the most appropriate remedy in most cases when Section 66-
8 8-109(B) is violated. However, we do not hold that suppression is automatic. Cf.
9 State v. Chouinard, 1981-NMSC-096, ¶¶ 23-26, 96 N.M. 658, 634 P.2d 680 (stating
10 that the remedy for a due process violation—suppression or admission of the
11 evidence with full disclosure of the loss and its relevance and import—lies in the
12 discretion of the trial court). Our Supreme Court specifically stated that the trial court
13 has discretion to craft a remedy when material evidence is lost in Scoggins v. State,
14 1990-NMSC-103, ¶¶ 10-11, 111 N.M. 122, 802 P.2d 631. This was a drug case
15 where the only credible evidence against a defendant (latent fingerprints of the
16 defendant) was negligently destroyed by the police, and our Supreme Court held that
17 the trial court did not abuse its discretion in dismissing the criminal charges. Id.
18 ¶¶ 10-11. Pertinent to the issue before us here, our Supreme Court said, “We defer
19 to the trial court’s discretion in deciding that testimony on the missing fingerprints
21 1 should be suppressed because it may have been impeached by lost evidence.” Id.
2 ¶ 10.
3 {32} We adopt the reasoning of Lovato, Chouinard, and Scoggins and hold that the
4 remedy for a violation of a driver’s right under Section 66-8-109(B) lies in the
5 discretion of the trial court, subject to review on appeal for an abuse of discretion.
6 In deciding what is an appropriate remedy, trial courts may consider all the facts of
7 the case, including whether trial is before a jury or the bench, the materiality of the
8 blood test results, and prejudice. In their consideration of prejudice, we caution trial
9 courts to be mindful of the fact that a defendant cannot prove what the test result of
10 a blood sample that does not exist would be. Because a sample was not preserved in
11 violation of the defendant’s statutory right, this should not weigh against the
12 defendant. In Scoggins our Supreme Court did not require the defendant to prove
13 what the results of a test of the destroyed latent fingerprints would have been, and the
14 case before us is not materially different. Finally, in determining whether a statutory
15 violation has occurred, and what sanctions are appropriate, we encourage trial courts
16 to enter findings of fact and conclusions of law to facilitate appellate review.
22 1 CONCLUSION
2 {33} The judgment of the district court affirming the judgment of the metropolitan
3 court is reversed, and the case is remanded to the trial court for further proceedings
4 consistent with this opinion.
5 {34} IT IS SO ORDERED.
6 ______________________________ 7 MICHAEL E. VIGIL, Judge
8 I CONCUR:
9 ___________________________________ 10 TIMOTHY L. GARCIA, Judge
11 M. MONICA ZAMORA, Judge (dissenting).
23 1 ZAMORA, J., dissenting. 2 {35} I agree that Section 66-8-109(B), as written, does not provide a defendant with
3 a meaningful opportunity to arrange for and effectuate the timely performance of an
4 independent chemical test. However, it is a function of our Legislature to make it so
5 and revise the statute accordingly. For these reasons, I respectfully dissent.
6 {36} The issue before this Court is whether providing Defendant with the Yellow
7 Pages phone book and access to a telephone for a period of twenty to thirty minutes
8 in the early hours of the morning meant that Defendant was given a reasonable, as
9 opposed to meaningful, opportunity to arrange for an independent chemical test.
10 Jones did not provide any guidance about how to undertake the analysis of whether
11 an opportunity was reasonable. 1998-NMCA-076. We also noted that “the purpose
12 of this subsection of the statute is to inform the person arrested of his or her right to
13 arrange to have an independent chemical test performed by a person of his or her own
14 choosing.” Id. ¶ 19.
15 {37} The Majority places an affirmative responsibility on law enforcement by
16 concluding that not only must they advise an arrestee that the arrestee has the right
17 to be given an opportunity to arrange for an independent test in addition to any test
18 performed at the direction of a law enforcement officer, but that they also have a duty
19 to assist an arrestee in arranging and effectuating an independent test. Perhaps the
24 1 uncertainty expressed by the metropolitan court as to whether Defendant’s
2 opportunity to arrange for independent testing was “meaningful,” was the means to
3 this end.
4 {38} To discern the Legislature’s intent, we rely on the classic canons of statutory
5 interpretation and “look first to the plain language of the statute, giving the words
6 their ordinary meaning, unless the Legislature indicates a different one was intended.”
7 Marbob Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146
8 N.M. 24, 206 P.3d 135 (internal quotation marks and citation omitted). When we
9 interpret a statute, we must “read the statute in its entirety and construe each part in
10 connection with every other part to produce a harmonious whole.” Key v. Chrysler
11 Motors Corp., 1996-NMSC-038, ¶ 14, 121 N.M. 764, 918 P.2d 350; see also Miller
12 v. New Mexico Dep’t of Transp., 1987-NMSC-081, ¶ 8, 106 N.M. 253, 741 P.2d 1374
13 (“Statutes are to be read in a way that facilitates their operation and the achievement
14 of their goals.”). We must also take care not to “read into a statute . . . language which
15 is not there, particularly if it makes sense as written.” High Ridge Hinkle Joint
16 Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599
17 (internal quotation marks and citation omitted).
18 {39} The plain language of the statute mandates that an arrestee be provided an
19 opportunity to make arrangements for an additional test. Section 66-8-109(B) does
25 1 not mandate that a law enforcement officer assist a person accused of DWI in
2 arranging such a test, beyond providing the means with which to arrange for an
3 independent chemical test. We have also concluded in Jones that “reading the entire
4 statute . . . does not guarantee the arrestee an additional test will be performed, but
5 only that the arrestee will be given a reasonable opportunity to arrange for an
6 additional test.” 1998-NMCA-076, ¶ 24 (emphasis added). This also acomplishes the
7 purpose of the subsection. Id. ¶ 19.
8 {40} The Majority’s interpretation of “reasonable opportunity” to import the word
9 “meaningful” into the statute is a substantive change to the law that is best left to the
10 legislative branch. Article III, Section 1 of the New Mexico Constitution divides the
11 state government into “three distinct departments, the legislative, executive and
12 judicial[.] . . . The Legislature makes, the executive executes, and the judiciary
13 construes the laws.” State v. Fifth Jud. Dist. Ct., 1932-NMSC-023, ¶¶ 8-9, 36 N.M.
14 151, 9 P.2d 691. Our Supreme Court has said that “the legislative branch is
15 constitutionally established to create substantive law.” State ex rel. Taylor v. Johnson,
16 1998-NMSC-015, ¶ 21, 125 N.M. 343, 961 P.2d 768. “A determination of what is
17 reasonably necessary for the preservation of the public health, safety and welfare of
18 the general public is [also] a legislative function and should not be interfered with,
19 save in a clear case of abuse.” State v. Collins, 1956-NMSC-046, ¶ 8, 61 N.M. 184,
26 1 297 P.2d 325. It is not within our authority to expand Section 66-8-109(B) and doing
2 so may create unintended consequences.
3 {41} The application of the plain language of Section 66-8-109(B) is consistent with
4 the approach taken in other jurisdictions. See Grizzle v. State, 265 S.E.2d 324, 325
5 (Ga. Ct. App. 1980) (“[I]t is the duty of a police officer not to prevent a defendant
6 from exercising his right to an independent test, but not his duty to insure the
7 performance of such test[.]”); Commw. v. O’Brien, 750 N.E.2d 1000, 1003-04 (Mass.
8 2001) (“Once the police inform a defendant of his right to an independent medical
9 examination . . . the police have no obligation to help him in exercising that right.”
10 (internal quotation marks and citation omitted)); Commw. v. Alano, 448 N.E.2d 1122,
11 1128 (Mass. 1983) (stating that police had a statutory duty to inform accused of the
12 right to a test, but no statutory duty to tell accused how to obtain a test once one was
13 requested); Cosky v. Comm’r of Pub. Safety, 602 N.W.2d 892, 894 (Minn. Ct. App.
14 1999) (“An officer is not required to assist a driver by furnishing supplies or
15 transportation to facilitate an additional test. An officer is not required to instruct a
16 driver on how to obtain an additional test.”); Provo City v. Werner, 810 P.2d 469, 474
17 (Utah Ct. App. 1991) (stating that police have a “duty . . . to not frustrate or thwart
18 reasonable attempts to obtain an independent test”); Cf. Luebke v. N. Dakota Dep’t
19 of Transp., 1998 ND 110, ¶ 13, 579 N.W.2d 189 (holding that officers may be
27 1 required to do more than allow telephone access, where a driver shows that he has
2 “made arrangements [for a test] with a qualified person of his own choosing, that the
3 test would be made if he came to the hospital, that he so informed the personnel at the
4 jail where he was under arrest” (alteration in original) (internal quotation marks and
5 citation omitted)).
6 {42} There are several jurisdictions where providing DWI arrestees with telephone
7 access has been deemed statutorily sufficient. See State v. Hedges, 154 P.3d 1074,
8 1078 (Idaho Ct. App. 2007) (“[P]olice . . . have a duty not to interfere with or
9 affirmatively deny a defendant access to a telephone once a request has been made
10 to make telephonic arrangements for an independent BAC test.”); Cosky, 602 N.W.2d
11 at 895 (“[The defendant’s] right to obtain an additional chemical test . . . was
12 vindicated when he was allowed to use a telephone to make the calls he wished to
13 make[.]”); Dake, 529 N.W.2d at 49 (“[W]hile . . . the police cannot hamper a
14 motorist’s efforts to obtain independent testing, they are under no duty to assist in
15 obtaining such testing beyond allowing telephone calls to secure the test.”); Luebke,
16 1998 ND 110, ¶ 11 (“Generally, law officers . . . need only allow an accused access
17 to a telephone.” (internal quotation marks and citation omitted)). Defendant was
18 given access to a telephone and a telephone book, and his ability to arrange
28 1 independent testing was not hindered by police, therefore he was afforded a
2 reasonable opportunity to arrange for an independent chemical test.
3 {43} Furthermore, under Jones, a defendant is only entitled to the remedy of
4 suppression of his BAT test results in violation of the statute when he proves that: (1)
5 he was deprived of a reasonable opportunity to arrange for independent testing in
6 violation of Section 66-8-109(B), and (2) the statutory violation resulted in prejudice.
7 Jones, 1998-NMCA-076, ¶ 29. A failure to prove either element is dispositive. Id.
8 ¶ 31. Accordingly, the district court properly based its decision on whether
9 Defendant demonstrated prejudice. Defendant’s BAT results were .12 and .11.
10 Defendant did not present any evidence to show an independent chemical test would
11 have demonstrated error in his BAT results such that it would bring him below the
12 per se limit of .08. Additionally, a review of the record reveals that Defendant did
13 have an opportunity to argue the issue of harmless error.
14 {44} The constitutional due process right to obtain possibly exculpatory evidence
15 includes a right to obtain an alcohol test independent of the test administered by the
16 arresting officer. The Defendant has the right to be free of police interference when
17 obtaining this test. The way our statutory provision is currently written means being
18 informed of this statutory right, being given a reasonable opportunity to arrange for
19 the independent testing, and nothing more.
29 1 {45} I respectfully dissent from the Opinion of the Court and would hold that
2 Defendant was given a reasonable opportunity to arrange for an independent chemical
3 test as requred by the Implied Consent Act, and affirm the district court.
4 _______________________________ 5 M. MONICA ZAMORA, Judge