State v. Franklin

460 P.3d 69

STATE of New Mexico, Plaintiff-Appellee,

v.Warren Brand FRANKLIN a/k/a Warren B. Franklin, Defendant-Appellant.

No. A-1-CA-36905

Court of Appeals of New Mexico.

Filing Date: December 9, 2019

Hector H. Balderas, Attorney General, Santa Fe, NM, John Kloss, Assistant Attorney General, Albuquerque, NM, for Appellee

Gary C. Mitchell, P.C., Gary C. Mitchell, Ruidoso, NM, for Appellant

ATTREP, Judge.

{1} Defendant appeals his conviction for driving under the influence of intoxicating liquor or drugs (DUI), contrary to NMSA 1978, Section 66-8-102(A) (2010, amended 2016), raising, among other issues, the voluntariness of his consent to a blood draw in light of the United States Supreme Court’s decision in Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016). Birchfield held that a blood draw was not a valid search incident to a DUI arrest and motorists cannot be said to impliedly consent to such a search "on pain of committing a criminal offense." Id. at 2184-86. As for a motorist who consents to a blood test after threat of heightened criminal penalties—commonplace in many states’ implied consent laws at the time—the Supreme Court held that the voluntariness of such consent must be determined from the totality of the circumstances, including the inaccurate threat. Id. at 2186.

{2} In light of Birchfield , our courts have held that "[i]mplied consent laws can no longer provide that a driver impliedly consents to a blood draw" and a defendant can no longer be subjected to criminal penalties for refusing to submit to a warrantless blood draw. State v. Vargas , 2017-NMSC-029, ¶ 22, 404 P.3d 416 ; see also State v. Storey , 2018-NMCA-009, ¶ 1, 410 P.3d 256. In this case, Defendant did not refuse but instead consented to the requested blood test. Our courts have yet to analyze Birchfield under such circumstances, and we thus take this opportunity to formally adopt the portion of Birchfield that addresses these circumstances. The district court below failed to properly consider and apply Birchfield in denying Defendant’s motion to suppress his blood evidence. We thus reverse and remand for the district court to redetermine its ruling in light of Birchfield and this opinion and for any further proceedings consistent therewith. As for Defendant’s remaining arguments, we conclude they are without merit.

BACKGROUND

{3} The following facts were established at trial. Defendant was involved in an accident with another vehicle while driving his truck one afternoon in Curry County, New Mexico. Defendant was driving a dually-trailer combination and slowed to make a left turn when another driver operating a tractor-trailer attempted to pass him in the left lane. The tractor-trailer struck the driver’s side of Defendant’s truck and Defendant was ejected from his truck. Both drivers sustained injuries; Defendant suffered a broken back, ribs, and lacerations. The first law enforcement officer who responded to the scene of the accident discovered a pack of beer in Defendant’s truck—one bottle was open, four were unopened, and several were unaccounted for. Defendant testified that the beers were in the truck from the day before, he had not drunk any while driving, and he had not drunk anything within an hour-and-a-half before the accident. Defendant, however, admitted he had a beer or two with lunch earlier that day.

{4} Defendant was initially transported by ambulance from the scene of the accident to a hospital in Clovis for treatment for his injuries before being airlifted to a hospital in Lubbock, Texas. Deputy Antonio Salazar, of the Curry County Sheriff’s Office, was present at the Clovis hospital. Pursuant to the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2019), Deputy Salazar advised Defendant that his consent for a breath or blood test was being requested and that Deputy Salazar was choosing a blood test. Deputy Salazar testified that he read Defendant an implied consent advisory from a card. The parties dispute whether Deputy Salazar advised Defendant that his failure to consent could cause Defendant to face enhanced criminal penalties, as provided in Section 66-8-102(D)(3) and (E). At first, Deputy Salazar testified that he read the enhanced penalties from the card, but then on redirect was more equivocal. Defendant testified that, while being treated at the hospital, Deputy Salazar asked for a blood test and then read the implied consent advisory. Defendant stated that he initially refused the blood test and requested a breath test; however, Deputy Salazar told him that he did not have a breathalyzer available and that a blood test was "the only thing that they could do." Defendant testified that he submitted to the blood test after Deputy Salazar threatened him with enhanced criminal penalties.

{5} Deputy Salazar oversaw the administration of the blood draw and provided to the blood drawer a kit approved by the Scientific Laboratory Division of the Department of Health (SLD). Deputy Salazar testified that he witnessed a nurse or technician employed by the hospital draw Defendant’s blood and ensured the kit would be submitted to SLD. Steve Schenick, the SLD analyst who analyzed Defendant’s blood sample, was certified by the district court as an expert in drug analysis. Mr. Schenick testified that the result of the blood test was a blood alcohol content (BAC) of .08 grams of alcohol per 100 milliliters of blood. The State did not seek to admit the blood test report or related documents.

{6} The State initially filed charges against Defendant in magistrate court. A jury was selected and a trial date was set approximately three weeks later. Before the trial commenced and prior to swearing in the jury, the State moved to dismiss the matter without prejudice, over Defendant’s objection. The State thereafter refiled the case in district court. In the district court, Defendant filed a combined motion to dismiss and motion to suppress. In support of his motion to dismiss, Defendant argued that the proceedings in district court violated his right to be free from double jeopardy since a jury had been selected in magistrate court. In support of his motion to suppress, Defendant argued that the blood test results should be suppressed pursuant to Birchfield .

{7} At the suppression hearing, the district court took no evidence. Defendant argued for suppression based on the premise that the officer threatened Defendant with criminal penalties to obtain his consent to a blood test and that this violated Birchfield . The State responded that the penalty portion of the implied consent advisory was not read, and, regardless of whether Birchfield applies, exigent circumstances justified the warrantless search. The district court took the matter under advisement and then issued a written order denying the motion without explanation. Defense counsel renewed the motion to suppress at the beginning of the trial and prior to any evidence being taken. The district court again denied the motion, explaining only that, based on current New Mexico case law, the court could not grant the motion. The matter proceeded to a bench trial, and, based on the evidence outlined above, Defendant was convicted of DUI.

DISCUSSION

{8} Defendant argues the district court erred in denying his motion to suppress because, under Birchfield , his consent to the blood test was not voluntary. Defendant additionally contends that the State failed to lay a proper foundation for the admission of testimony regarding the blood draw, the State violated his right to confrontation, and the State failed to establish a nexus between BAC and time of driving. Defendant finally asserts the district court erred in denying his motion to dismiss on double jeopardy grounds. We reverse and remand based on Defendant’s Birchfield argument. We reject Defendant’s remaining claims of error.

I. Harmless Error

{9} Since the vast majority of Defendant’s claims of error relate to the admission of the blood test results, as an initial matter, we dispose of the State’s contention that even if the blood test results were admitted in error, such error was harmless. The State maintains the admission of the blood test results was harmless because ample evidence supported the finding that Defendant drove impaired, and the district court need not have relied on the testimony concerning the blood test results in finding Defendant guilty of DUI. As support for its position, the State cites State v. Hernandez , 1999-NMCA-105, 127 N.M. 769, 987 P.2d 1156, where we stated "the erroneous admission of evidence in a bench trial is harmless unless it appears that the judge must have relied upon the improper evidence in rendering a decision." Id. ¶ 22.

{10} Although Defendant was convicted under the "impaired to the slightest degree" standard, rather than a per se standard of DUI, see § 66-8-102(A), (C)(1), we previously have held that BAC remains relevant in cases where DUI is based on a defendant’s impairment to the slightest degree. See, e.g. , State v. Garnenez , 2015-NMCA-022, ¶ 34, 344 P.3d 1054 ("BAC results are relevant under the [impaired] to the slightest degree theory to show that a defendant had alcohol in his or her system and, regardless of the numerical BAC, tended to show that the defendant’s poor driving was a result of drinking liquor." (alterations, omission, internal quotation marks, and citation omitted)). In the present case, there is no indication that the district court did not consider testimony concerning the blood test results. To the contrary, when announcing its verdict, the district court expressly stated the blood test results of .08 were "concerning." In addition, two of the State’s witnesses, Deputy Salazar and Mr. Schenick, testified in detail regarding the process to obtain a blood test, procedures for analyzing the sample, and the blood test results. Under these circumstances, it is not possible to conclude the district...