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New Mexico Supreme Court Holds SCOTUS Prohibition Against Warrantless Blood Tests in DWI Cases Applies Retroactively

by Matt Clarke

On October 5, 2017, the Supreme Court of New Mexico held that an impaired driver generally could not be subject to criminal penalties for refusing to submit to a blood test for the presence of alcohol or drugs.

On April 23, 2011, Laressa Vargas encountered a DWI checkpoint in Albuquerque, New Mexico at 1 a.m. When she said, “good afternoon,” she and her car had a faint odor of alcohol, and her eyes were bloodshot. A deputy immediately suspected that she was driving under the influence of alcohol. She denied drinking alcohol.

The deputy asked her for a breath sample. She consented and registered 0.04. He requested another sample. She once again consented and registered 0.05. Interpreting the tests as inconsistent with his perception of her level of impairment, the deputy asked Vargas for a blood sample. She refused.

The deputy did not have a warrant for a blood test, nor could he have obtained one because state law required that such a warrant affidavit state a belief that Vargas had committed a felony or caused death or great bodily injury while driving under the influence of alcohol. NMSA 1978, § 66-8-111(A) (2005). After she performed poorly on a field sobriety test, the deputy arrested her, believing she was too impaired to safely drive.

Vargas was convicted of aggravated DWI in metropolitan court. That court found that Vargas drove while under the influence of alcohol to the slightest degree and that she refused to take the requested blood test, aggravating the offense—aggravated DWI. She was sentenced to 90 days in jail for refusing to submit to chemical testing as provided for in the Implied Consent Act, NMSA § 66-8-107, in violation of § 66-8-102(D)(3).

Vargas unsuccessfully appealed to the Second Judicial District Court. She then appealed to the Court of Appeals. While that appeal was pending, the U.S. Supreme Court decided Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), in which it held that police may require a warrantless alcohol breath test from a driver arrested for DWI, but police may not require a warrantless blood test unless the police have probable cause and demonstrates exigent circumstances for not first obtaining a search warrant for the blood. Thus, under Birchfield, a person may be punished for refusing to submit to a breath test under an implied consent statute, but may not be punished for refusing to submit to a blood test under an implied consent statute.

Vargas raised the Birchfield issue for the first time while her appeal was pending. That is, she argued that the warrantless request for the blood test constituted an unreasonable search under the Fourth Amendment, and thus her refusal to submit to it cannot be used to prove aggravated DWI. The Court of Appeals agreed and reversed her conviction. The State appealed to the New Mexico Supreme Court.

On appeal, the State argued that Birchfield does not apply retroactively, and the Court of Appeals erred in applying Birchfield because Vargas did not preserve her Fourth Amendment claim in the lower court. The Court rejected both of the State’s arguments.

The Court began its analysis by instructing that the U.S. Supreme Court “established the analysis that courts must follow to determine whether a new rule applies retroactively” in Teague v. Lane, 489 U.S. 288 (1989), which has been adopted by New Mexico courts. Under Teague, a new rule applies retroactively “if the result was not dictated by precedent existing at the time the defendant’s conviction became final,” explained the U.S. Supreme Court.

Teague requires the retroactive application of a new rule that “places certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe.” Birchfield prohibits criminal penalties “previously imposed upon a subject for refusing to submit to warrantless blood tests.” Thus, the Court concluded that Birchfield applies retroactively and applies to Vargas.

Although Vargas did not properly preserve her Fourth Amendment argument in the metropolitan court, the Court of Appeals “properly exercised its discretion to address her unpreserved argument because of the fundamental right to be free from illegal searches and seizures,” wrote the New Mexico Supreme Court.  

The Court explained that Vargas “cannot be subjected to criminal penalties for refusing to submit to an unreasonable search.” Accordingly, the Court affirmed the Court of Appeals in reversing Vargas’ conviction and remanded the case for resentencing on DWI, impaired to the slightest degree. See: State v. Vargas, 404 P.3d 2017 (N.M. 2017). 

 

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