Martinez v. N.M. Taxation & Revenue Dep't

534 P.3d 248

Angel MARTINEZ, Petitioner-Appellant,

v.NEW MEXICO TAXATION & REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Respondent-Appellee.

No. A-1-CA-39468

Court of Appeals of New Mexico.

Filing Date: April 24, 2023

Ben A. Ortega, Albuquerque, NM, for Appellant

Raúl Torrez, Attorney General, Regina Ryanczak, Special Assistant Attorney General, Santa Fe, NM, for Appellee

MEDINA, Judge.

{1} Petitioner Angel Martinez appeals the administrative hearing officer's (AHO) decision to sustain the revocation of her license under the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2019). Petitioner's appeal raises an issue of first impression—the conflict between our State's COVID-19 closure and Petitioner's statutory right to an in-person license revocation hearing. Petitioner argues: (1) the March 23, 2020 nonessential business closure did not apply to the Administrative Hearing Office (the Office); (2) even if the nonessential business closure applied, the Office could have conducted in-person hearings following the mass-gathering restrictions in the March 23, 2020 order, rather than closing, and the AHO here acted as an advocate by ordering a telephonic hearing over Petitioner's objection; (3) the AHO improperly relied on our Supreme Court's court closure order to justify a telephonic hearing because the Office is part of the executive branch, not the judicial branch; and (4) conducting a telephonic hearing was not authorized and prevented the AHO from making a proper credibility determination at the hearing. For the reasons explained below, we affirm.

BACKGROUND

{2} Following Petitioner's refusal to submit to a chemical test to determine her blood alcohol level, she was issued a driving while intoxicated (DWI) citation and a notice of license revocation on February 22, 2020. The notice of revocation informed Petitioner that her license would be revoked in twenty days and that she may contest the revocation by providing a written request for a hearing within ten days. Following Petitioner's request for a hearing, the Office informed Petitioner by letter that the AHO intended to conduct her hearing remotely through a telephonic conference call on April 23, 2020, at 10:00 a.m. The notice also stated that if Petitioner did not consent to a telephonic hearing, she must file an objection within ten days of receiving the notice. Petitioner timely objected to a telephonic hearing and demanded that the hearing be held in person.

{3} Before any hearing occurred, Governor Michelle Lujan Grisham (the Governor) issued an executive order on March 11, 2020, stating a public health emergency existed in New Mexico due to the spread of COVID-19. See Executive Order 2020-004 (N.M. Mar. 11, 2020). In her executive order, the Governor invoked her powers under the All Hazard Emergency Management Act, NMSA 1978, §§ 12-10-1 to -10 (1959, as amended through 2007), and declared a public health emergency under the Public Health Emergency Response Act (PHERA), NMSA 1978, §§ 12-10A-1 to -19 (2003, as amended through 2015). See Executive Order 2020-004 at 2.

Executive Order 2020-004 was in effect at the time of Petitioner's April 23, 2020 license revocation hearing, and was extended multiple times in order to combat the COVID-19 public health emergency. See Executive Order 2020-022 at 3 (N.M. Apr. 6, 2020) (extending the public health emergency until April 30, 2020); Grisham v. Reeb , 2021-NMSC-006, ¶ 2, 480 P.3d 852 (discussing multiple extensions of the public health emergency).

{4} As authorized by the Governor's executive order, the New Mexico Department of Health issued a series of emergency public health orders. The first, issued on March 12, 2020, declared the COVID-19 outbreak a condition of public health importance and restricted mass gatherings, as well as advised New Mexicans to stay home and avoid unnecessary exposure to COVID-19. See Dep't of Health, Public Health Order at 2-3 (N.M. Mar. 12, 2020) (First PHEO). A subsequent order on March 23, 2020, prohibited all mass gatherings and required all nonessential businesses to reduce their in-person workforce "at each business or business location by 100 [percent]." Dep't of Health, Public Health Order at 4 (N.M. Mar. 23, 2020) (Second PHEO). The Second PHEO also authorized all State departments and agencies "to take all appropriate steps to ensure compliance with [the Second PHEO]" and stated, "All public and private employers are required to comply." Second PHEO at 5. The restrictions from the Second PHEO were extended through Petitioner's license revocation hearing. See Dep't of Health, Public Health Order at 1 (N.M Apr. 30, 2020) (stating that the Second PHEO remained in effect).

{5} To comply with the Second PHEO, the chief hearing officer at the Office issued an amended standing order, pursuant to 22.600.1.9 NMAC on March 25, 2020. See Amended Standing Order #20-01 of the Chief Hearing Officer (Mar. 25, 2020) (Standing Order). The Standing Order required all license revocation hearings that were previously scheduled to "be converted to remote telephonic hearing[s]," regardless of whether "any previous objection to a remote hearing [had been] made before the emergency order." Standing Order at 2-3. The Standing Order clarified that the "current state of emergency and th[e] [S]tanding [O]rder supersede any previous demands for an in-person hearing or objections to a remote telephonic hearing made before the issuance of the Governor's Emergency Decr[ee] and this order." Standing Order at 3.

{6} In compliance with Executive Order 2020-004, the First and Second PHEO, and the Standing Order, the AHO overruled Petitioner's objection to the telephonic revocation hearing, and the hearing proceeded telephonically on April 23, 2020. Counsel for Petitioner appeared at the telephonic hearing, and Officer Rodriguez, the officer who conducted the traffic stop, was the only witness. Officer Rodriguez testified that he initiated the traffic stop because Petitioner was traveling at a high rate of speed, and his radar equipment stated Petitioner was traveling 47 miles-per-hour in a 35 mile-per-hour zone. During the stop, he noticed Petitioner had bloodshot, watery eyes and detected the odor of alcohol. After Petitioner admitted drinking, Officer Rodriguez requested that Petitioner get out of her vehicle. Officer Rodriguez again detected the odor of alcohol coming from Petitioner's facial area.

{7} Officer Rodriguez conducted standardized field sobriety tests and observed multiple indicators of impairment. Concluding that Petitioner was intoxicated, Officer Rodriguez arrested Petitioner for DWI. He then read the Implied Consent Act breath advisory to Petitioner. Petitioner refused to submit to a chemical test twice, even after Officer Rodriguez informed Petitioner that she could lose her driving privileges if she did not submit to the chemical testing. Officer Rodriguez then served Petitioner with a citation for DWI and a notice of revocation.

{8} At the telephonic hearing, Petitioner's counsel cross-examined Officer Rodriguez, made objections, and argued that Officer Rodriguez lacked reasonable suspicion to conduct the initial traffic stop and probable cause to arrest Petitioner. Unpersuaded, the AHO found: (1) "Officer Rodriguez had reasonable grounds to believe [Petitioner] was driving ... under the influence"; (2) "Officer Rodriguez lawfully arrested [Petitioner]"; (3) "the hearing was held no later than [ninety] days from the [n]otice of [r]evocation"; and (4) "[Petitioner] refused to submit to a chemical test even after being advised that failure to submit could result in revocation of driving privileges." See § 66-8-112(F) (listing the required findings at a license revocation hearing). The AHO additionally determined that the telephonic hearing did not "deprive [Petitioner] of due process or prejudice [Petitioner] in any way." The AHO accordingly sustained the license revocation for one year.

{9} Petitioner appealed the order to the district court. Petitioner argued that the AHO exceeded her authority because no statute, regulation, or published order permitted holding a telephonic hearing over Petitioner's objection, and therefore the decision to hold a telephonic hearing usurped the authority of the judicial and legislative branches. Petitioner asserted that the revocation hearing must take place in-person and can only be telephonic if the driver consents, (citing Section 66-8-112(B), 22.600.6.10(C) NMAC ), and this Court's decision in Evans v. New Mexico Taxation and Revenue Department , 1996-NMCA-080, 122 N.M. 216, 922 P.2d 1212. Finally, Petitioner argued that she was denied a fair and impartial hearing because the AHO acted as an advocate by sua sponte requiring a telephonic hearing. Although Petitioner challenged the lawfulness of the AHO's decision to require a telephonic hearing, Petitioner did not challenge the AHO's factual findings when sustaining the license revocation.

{10} The district court certified the appeal to this Court as a matter of great public importance, pursuant to NMSA 1978, Section 39-3-1.1(F) (1999) and Rule 1-074(S) NMRA.

DISCUSSION

{11} Petitioner's appeal presents an issue of first impression, requiring that we determine the interaction between the State's interest in mandating public health orders and a petitioner's statutory rights at a license revocation hearing. We first address Petitioner's argument that the Second PHEO did not authorize the Office's closure and hold that the nonessential business closure applied to State departments and agencies, including the Office. We then discuss whether the Office could have conducted in-person hearings under the mass-gathering restrictions and hold that the Office was required to close in compliance with the Second PHEO. Next, we address Petitioner's argument that the AHO here improperly relied on Supreme Court Order No. 20-8500-002 and Order No. 20-8500-006 to justify the telephonic hearing and...