State v. Garnenez

2015 NMCA 022, 7 N.M. 352
CourtNew Mexico Court of Appeals
DecidedJanuary 23, 2015
DocketNo. 35,038; Docket No. 32,995
StatusPublished
Cited by25 cases

This text of 2015 NMCA 022 (State v. Garnenez) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Garnenez, 2015 NMCA 022, 7 N.M. 352 (N.M. Ct. App. 2015).

Opinion

OPINION

ZAMORA, Judge.

Arlene Garnenez (Defendant) appeals from her convictions for two counts of vehicular homicide, contrary to NMSA 1978, § 66-8-101 (2004). This case presents the issue of whether a blood draw can proceed solely pursuant to a valid search warrant, outside of the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2007). We hold that it can. We also address Defendant’s other contentions that (1) her blood alcohol content (BAC) results should have been suppressed as a result of false statements in the search warrant authorizing the blood draw; (2) comments made by the prosecutor during jury selection and an emotional reaction from a member of the courtroom audience prejudiced the jury and warranted a mistrial; and (3) the district court improperly admitted the BAC results and expert testimony regarding retrograde extrapolation without adequate foundation and in violation of her rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution. For the following reasons, we affirm Defendant’s convictions.

BACKGROUND

On July 23, 2011, between 8:00 a.m. and 8:30 a.m., Defendant was driving a pickup truck on 1-40 in Gallup, New Mexico. The truck veered, off the road, struck a light pole, and rolled over multiple times, resulting in the deaths of two passengers. Defendant was bleeding heavily from a head wound and her right arm was fractured. She was taken to the hospital for treatment. Officer Andy Yearley, ofthe Gallup Police Department, responded to the scene and first spoke with Defendant at the hospital. Even after Defendant had been transported to the hospital, Officer Yearley still detected a slight odor of alcohol and noted that Defendant had a flushed complexion and confused speech. Officer Yearley did not arrest Defendant or read her the Implied Consent Act. Although Defendant was able to speak with him, Officer Yearley questioned her ability to give consent because she appeared to be in pain from her injuries and he was not sure if the medications in her system affected her judgment. See generally §§ 66-8-105 to -112. Under these circumstances, Officer Yearley decided not to arrest Defendant or presume that she was incapable of withdrawing consent pursuant to Section 66-8-108. He instead sought and obtained a search warrant to draw Defendant’s blood. Defendant was not formally arrested until after the blood draw and after she was discharged from the hospital.

Following a jury trial, Defendant was convicted of two counts of vehicular homicide and one count of driving while under the influence of intoxicating liquor or drugs (DWI), impaired to the slightest degree. Defendant’s DWI conviction was vacated on double jeopardy grounds. We discuss pertinent facts in more detail below as they relate to the issues.

DISCUSSION

I. Blood May Be Properly Drawn Pursuant to a Search Warrant, Without an Arrest Under the Implied Consent Act

Defendant contends that the district court should not have allowed the B AC results into evidence because she was not arrested at the time of the blood draw. Defendant argues that even though a search warrant was obtained, the statutory framework of the Implied Consent Act, by requiring an arrest prior to a blood draw, mandates the exclusion of all BAC results taken when a person was not under arrest. We disagree, and for the reasons discussed below, we hold that a constitutionally permissible search of a person’s blood may arise either from an arrest pursuant to the Implied Consent Act or a valid search warrant supported by probable cause.

Fourth Amendment jurisprudence has expressed a preference for searches conducted pursuant to a warrant in the context of blood draws. See generally Schmerber v. California, 384 U.S. 757, 767, 770 (1966) (stating that the “compulsory administration of a blood test . . . plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment[,]” and also explaining that because “[sjearch warrants are ordinarily required for searches of dwellings,. . . absent an emergency, no less could be required where intrusions into the human body are concerned”). Consent and arrest are exceptions to the warrant requirement. State v. Weidner, 2007-NMCA-063, ¶ 6, 141 N.M. 582, 158 P.3d 1025 (listing the recognized exceptions to the warrant requirement as “exigent circumstances, searches incident to arrest, ' inventory searches, consent, hot pursuit, open field, and plain view”). The Implied Consent Act operates as one form of statutory consent, created by the Legislature, by allowing law enforcement officers to presume that all drivers, upon arrest for DWI, have agreed to take a chemical test. In re Suazo, 1994-NMSC-070, ¶ 7, 117 N.M. 785, 877 P.2d 1088 (“The essence ofthe [Implied Consent] Act is that any person who operates a motor vehicle in New Mexico, after being arrested for driving while intoxicated, ‘shall be deemed to have given consent’ to a chemical test to determine the drug or alcoholic content of the motorist’s blood.” (quoting § 66-8-107(A)).

We acknowledge that our prior case law emphasized the importance of an arrest prior to the application of the Implied Consent Act and gave little effect to a search warrant. In State v. Steele, we held that where a driver refused to provide a blood sample under the Implied Consent Act, a law enforcement officer could not obtain the sample using a search warrant because the Implied Consent Act afforded the defendant greater protection than the Fourth Amendment. 1979-NMCA-113, ¶¶ 7-9, 93 N.M. 470, 601 P.2d 440; see also State v. Chavez, 1981-NMCA-060, ¶ 4, 96 N.M. 313, 629 P.2d 1242 (explaining that in Steele, “[t]his Court held that the Legislature gave the defendant ' more protection than was afforded by the Constitution and that, after his refusal, the result of the blood alcohol test taken by means of a valid search warrant was properly excluded”). However, the Legislature subsequently amended the Implied Consent Act to allow law enforcement officers to obtain a blood sample using a search warrant upon a defendant’s refusal. Chavez, 1981-NMCA-060, ¶ 4.

Our subsequent case law indicates that we have construed the Legislature’s amendment broadly. In State v. House, we held that an affidavit for a search warrant authorizing a blood draw did not need to state that a defendant was arrested and only needed to show probable cause:

[ W] e are unaware of any requirement that the affidavit for a search warrant authorizing a chemical test of a driver’s blood include a statement that the driver was arrested for DWI. NMSA 1978, Section 66-8-111 (A) (Repl. Pamp. 1994) (search warrant authorizing chemical tests) only requires a finding, based on the affidavit for search warrant, that there is probable cause to believe that: the person has driven a motor vehicle while under the influence of alcohol, thereby causing the death or great bodily injury of another person; or the person has committed a felony while under the influence of alcohol and that chemical tests will produce material evidence in a felony prosecution.

House, 1996-NMCA-052, ¶ 32, 121 N.M. 784, 918 P.2d 370.

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Cite This Page — Counsel Stack

Bluebook (online)
2015 NMCA 022, 7 N.M. 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-garnenez-nmctapp-2015.