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                                                                         New Mexico Compilation
                                                                       Commission, Santa Fe, NM
                                                                      '00'04- 14:17:44 2017.06.07

        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-043

Filing Date: February 13, 2017

Docket No. 34,245

JUAN ANTONIO OCHOA BARRAZA,

        Petitioner-Appellant,

v.

STATE OF NEW MEXICO TAXATION AND REVENUE DEPARTMENT, MOTOR
VEHICLE DIVISION,

        Respondent-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge

Ben A. Ortega
Albuquerque, NM

for Appellant

Hector H. Balderas, Attorney General
Taxation and Revenue Department, Legal Services Bureau
Gabrielle Dorian, Special Assistant Attorney General
Diana Martwick, Special Assistant Attorney General
Santa Fe, NM

for Appellee

                                           OPINION

VIGIL, Judge.

{1}     The New Mexico Taxation and Revenue Department, Motor Vehicle Division
(MVD), revoked Driver Juan Antonio Ochoa Barraza’s license under the Implied Consent
Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2015), and Driver
appealed to the district court. Instead of hearing the case in its appellate capacity, the district
court, on its own motion converted the case into a petition for writ of mandamus, arising

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under its original jurisdiction, and denied mandamus relief. We conclude that the district
court erred in converting the appeal into a petition for writ of mandamus, and remand the
case to the district court to decide the case as an appeal.

BACKGROUND

{2}     Bernalillo County Sheriff’s Deputy Jason Foster stopped Driver for failing to
maintain a traffic lane. Upon seeing that Driver had bloodshot, watery eyes, and smelling the
odor of an alcoholic beverage coming from the vehicle, Deputy Foster told Driver to exit the
vehicle, whereupon he noted an odor of alcohol coming from Driver’s person. Driver told
Deputy Foster that he spoke Spanish, and Deputy Foster called for a Spanish-speaking
deputy before giving Driver field sobriety tests. Deputy Jareno responded and translated the
instructions given by Deputy Foster to Driver. Driver failed the field sobriety tests, and
Deputy Foster arrested Driver for driving while under the influence of intoxicating liquor
or drugs (DWI). NMSA 1978, § 66-8-102 (2010, amended 2016).

{3}      Although Deputy Jareno was present, Deputy Foster read the implied consent
advisory to Driver in English. Deputy Foster informed Driver that he was under arrest for
DWI and that the Implied Consent Act required him to submit to a breath or blood test, or
both, to determine the alcohol or drug content of his blood. Deputy Foster further informed
Driver that if he took the test, he had a right to take an additional test of his choosing,
together with the right to a reasonable opportunity to arrange for a physician, licensed nurse,
laboratory technician or technologist employed by a hospital or physician to perform the
additional test, the cost of which would be paid by the law enforcement agency. Deputy
Foster then asked Driver if he agreed to a breath test, and Driver said, “No.” Deputy Foster
then advised Driver that if he refused, he would lose his driver’s license for one year and
that, if he was convicted, he could receive an enhanced sentence due to the refusal. Deputy
Foster asked Driver, having that in mind, did he now agree to take the tests, and Driver again
answered, “No.”

{4}      Deputy Foster issued Driver a notice of revocation of his driver’s license for one
year, and of his right to an administrative hearing before MVD to contest the revocation.
Sections 66-8-111(B) and 66-8-111.1. Driver’s request for an administrative hearing was
granted. The notice of the hearing specified that one of the issues to be decided was whether
Driver “refused to submit to requested breath and/or blood testing, after having been advised
that failure to submit could result in revocation of [Driver’s] privilege to drive[.]”

{5}     A hearing was held before MVD hearing officer Jane Kircher pursuant to Section 66-
8-112. After considering the testimony, Kircher set forth the evidence in detail to support her
factual determination that Driver spoke English and understood the implied consent advisory
given in English by Deputy Foster, including the consequences of refusing the requested
tests. Kircher therefore rejected Driver’s argument that the due process protected by Article
II, Section 18 of the New Mexico Constitution and cases addressing the giving of Miranda
warnings in Spanish to a Spanish-speaker required Deputy Foster to read or give the implied

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consent advisory to Driver in Spanish. Kircher found that Driver “refused to submit to a
requested chemical test after he was properly advised that he would lose his privilege to
drive if he refused the test[,]” and entered an order sustaining the revocation of Driver’s
license for one year. Driver was advised of his right to appeal and seek review of the
revocation in the district court.

{6}      Driver appealed MVD’s revocation of his driver’s license to the district court. See
§ 66-8-112(H); Rule 1-074(A) NMRA (setting forth the procedure for an appeal from an
administrative agency to the district court “when there is a statutory right of review to the
district court”). In his statement of issues on appeal, Driver argued that even if he spoke
English at some level, there was no way to gauge his actual understanding of what Deputy
Foster told him, and because Deputy Jareno was present and able to translate, the implied
consent advisory should have been given to him in Spanish, his native language. Driver also
argued that Deputy Foster’s failure to give the implied consent advisory in Spanish violates
the due process protected by Article II, Section 18 of the New Mexico Constitution. MVD
responded that the evidence supported the hearing officer’s finding that Driver understood
English and the implied consent advisory.

{7}     The district court recognized that the case before it was an appeal from MVD’s
decision revoking Driver’s license. However, because the district court ruled that MVD had
no jurisdiction to rule on Driver’s due process argument, the district court also concluded
it had no jurisdiction to decide the appeal. In making this determination, the district court
referred to our decision in Maso v. New Mexico Taxation & Revenue Dep’t, 2004-NMCA-
025, 135 N.M. 152, 85 P.3d 276, affirmed, 2004-NMSC-028, 136 N.M. 161, 96 P.3d 286.
Without notice to the parties and on its own motion, the district court then construed the
appeal as a petition for writ of mandamus, and, finding no basis to issue a writ of mandamus,
denied relief. Driver appeals.

ANALYSIS

{8}     This case requires us to determine whether the relevant portion of Section 66-8-112
grants authority to MVD to decide Driver’s due process claim in an administrative hearing
under the Implied Consent Act. This is a question of law that we review de novo. See
Schuster v. N. M. Dep’t of Taxation & Revenue, 2012-NMSC-025, ¶ 9, 283 P.3d 288 (stating
“[w]hether MVD must conclude that the arrest of a driver for DWI is constitutional before
revoking a driver’s license requires” that Section 66-8-112 be interpreted, and that ‘statutory
interpretation’ presents a question of law that is reviewed de novo); Martinez v. N.M. State
Eng’r Office, 2000-NMCA-074, ¶ 20, 129 N.M. 413, 9 P.3d 657 (stating that determining
what issues may be decided by the state personnel board under the applicable statutory
scheme presents a question of law). “When reviewing a statute, [appellate courts] must give
effect to the Legislature’s intent by first looking at the plain language of the statute, giving
the words their ordinary meaning, unless the Legislature indicates a different one was
intended.” Schuster, 2012-NMSC-025, ¶ 9 (internal quotation marks and citation omitted).


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{9}     A person whose license is revoked under the Implied Consent Act may contest the
revocation by requesting a hearing within ten days after receiving the notice of revocation.
Section 66-8-112(B). Section 66-8-112(E) provides that the hearing “shall be limited” to
consideration of five issues. See id. (“The hearing shall be limited to the issues: (1) whether
the law enforcement officer had reasonable grounds to believe that the person had been
driving a motor vehicle within this state while under the influence of intoxicating liquor or
drugs; (2) whether the person was arrested; (3) whether this hearing is held no later than
ninety days after notice of revocation; and either (4) whether: (a) the person refused to
submit to a test upon request of the law enforcement officer; and (b) the law enforcement
officer advised that the failure to submit to a test could result in revocation of the person’s
privilege to drive; or (5) whether: (a) the chemical test was administered pursuant to the
provisions of the Implied Consent Act; and (b) the test results indicated an alcohol
concentration in the person’s blood or breath of eight one hundredths or more if the person
is twenty-one years of age or older, four one hundredths or more if the person is driving a
commercial motor vehicle or two one hundredths or more if the person is less than twenty-
one years of age”). Sections 66-8-112(F) and (G) provide that the revocation may be
sustained only if the hearing officer makes an affirmative finding as to each issue. A person
adversely affected by a decision of MVD may then seek review in the district court. Section
66-8-112(H).

{10} As discussed above, the district court relied upon Maso in arriving at its ruling. In
Maso, the driver conceded that he received the notice of revocation, but he failed to make
a timely request for a hearing. 2004-NMCA-025, ¶ 1. MVD denied his request for a hearing.
Id. ¶ 5; see § 66-8-112(B) (“Failure to request a hearing within ten days shall result in
forfeiture of the person’s right to a hearing.”). The driver appealed to the district court
asserting that, because the notice was in English, and he only understood Spanish, the notice
did not comport with due process, and he should have been granted a hearing,
notwithstanding his lack of timeliness. Maso, 2004-NMCA-025, ¶¶ 1, 6. The district court
rejected the driver’s due process argument, and this Court granted the driver’s request for
certiorari review of the district court decision. Id. ¶ 6. We concluded that, because Section
66-8-112(E) provides that the hearing “shall be limited” to the consideration of specific
issues, and the driver’s argument that due process required the notice of revocation to be
given to him in Spanish is not included in those issues, MVD had no jurisdiction to consider
the driver’s argument. Maso, 2004-NMCA-025, ¶ 12.1 We additionally concluded that
because MVD had no jurisdiction to decide the issue raised by the driver, the district court
had no appellate jurisdiction to decide the issue. Id. ¶ 13; see Nesbit v. City of Albuquerque,
1977-NMSC-107, ¶ 10, 91 N.M. 455, 575 P.2d 1340 (concluding that a district court has no
jurisdiction to consider an issue on appeal from an administrative agency that decided the
issue without jurisdiction to do so).


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         We also note here that whether a driver requests a timely hearing is not included in
the five issues that may be considered by a hearing officer under Sections 66-8-112(E) and
(F).

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{11} However, we also noted in Maso that the district court had authority to consider the
driver’s due process argument under its original jurisdiction. 2004-NMCA-025, ¶ 14.
Invoking logic and principles of judicial economy, we construed the driver’s appeal to the
district court as in the nature of a petition for writ of mandamus, and the appeal before us as
an appeal from the denial of a petition for writ of mandamus. Id. ¶ 15. We then affirmed the
district court on the merits, concluding that due process does not require that written notice
of revocation be given to a Spanish-speaking driver in Spanish. Id. ¶¶ 18-21. On certiorari,
our Supreme Court affirmed the merits of the due process issue without addressing any of
the procedural or jurisdictional issues we had decided. Maso, 2004-NMSC-028, ¶¶ 9, 13-15.

{12} Driver and MVD both ask us to consider the applicability of Schuster, 2012-NMSC-
025. One of the questions that must be affirmatively answered before MVD can revoke a
driver’s license under Section 66-8-112(E)(2) is whether “the person was arrested.” Id. In
Schuster, the issue before our Supreme Court was whether the Legislature intended a finding
that a driver was “arrested” to include a finding that the driver’s arrest was constitutional.
2012-NMSC-025, ¶ 15. Our Supreme Court answered the question in the affirmative,
holding, “the plain meaning of the word ‘arrest’ means an arrest that complies with the
protections of the Fourth Amendment to the United States Constitution, and Article II,
Section 10 of the New Mexico Constitution.” Schuster, 2012-NMSC-025, ¶ 18. It therefore
concluded that “an arrest and the underlying police activity leading to the arrest, must be
constitutional before a driver’s license can be revoked under the Implied Consent Act.” Id.
The Court recognized that to conclude otherwise, that the Implied Consent Act allows an
unconstitutional arrest to result in the revocation of a driver’s license, would call into
question the constitutionality of the Implied Consent Act. Id. ¶¶ 17-18.

{13} Referring to our decision in Maso, the driver in Schuster also argued that the district
court must consider the constitutionality of an arrest under its original jurisdiction and not
for substantial evidence under its appellate jurisdiction. Schuster, 2012-NMSC-025, ¶ 20.
Our Supreme Court disagreed and held that because “MVD must rule on the constitutionality
of an arrest” before revoking a driver’s license under the Implied Consent Act, Maso was
not controlling. Schuster, 2012-NMSC-025, ¶¶ 20, 22. Significantly, the Court noted that
Maso “stands for the legal proposition that any constitutional challenge beyond MVD’s
scope of statutory review is brought for the first time in district court under its original
jurisdiction.” Schuster, 2012-NMSC-025, ¶ 21.

{14} Both parties argue that Schuster is controlling in this case, and we agree. Prior to
revoking Driver’s license, Kircher was required to affirmatively answer whether Driver
“refused to submit to a test upon request” and whether Deputy Foster “advised that the
failure to submit to a test could result in revocation of [Driver’s] privilege to drive[.]”
Section 66-8-112(E)(4)(a), (b). Driver specifically argued that because his primary language
is Spanish, due process required that Deputy Foster give him the implied consent advisory
in Spanish to ensure that Driver understood the advisory and validly refused to submit to the
test.


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{15} In Schuster, our Supreme Court concluded that MVD was both authorized and
required to answer constitutional questions arising from the language of Section 66-8-
112(E)(2). 2012-NMSC-025, ¶ 19. We see no need to depart from that rationale. A driver’s
license is an “important, protectible right,” Stevens v. N.M.Transp. Dep’t, 1987-NMCA-095,
¶ 12, 106 N.M. 198, 740 P.2d 1182, subject to due process protections. Maso v. N.M.
Taxation & Revenue Dep’t, 2004-NMSC-028, ¶ 10, 136 N.M. 161, 96 P.3d 286 (“Due
process requires notice and an opportunity for a hearing before the State can suspend or
revoke a person’s driver’s license.”). It appears an open question whether due process
requires that a non-English speaking driver fully understand the implications of his or her
refusal to submit to a breath- or blood-alcohol test upon request. In accordance with
Schuster, we conclude that MVD must answer this constitutional question in determining
whether it can answer the questions posed by Section 66-8-112(E)(4) in the affirmative.
Following MVD’s ruling on the matter, the district court must, on appeal, hear and decide
the question in its appellate capacity and not under its original jurisdiction. Schuster, 2012-
NMSC-025, ¶ 22.

{16} Whether the district court is acting under its original jurisdiction in mandamus or its
appellate capacity, it has very real consequences. When the district court sits in its appellate
capacity, Section 66-8-112(H) directs that it is “to determine only whether reasonable
grounds exist for revocation [of the driver’s license] based on the record of the
administrative proceeding.” In its appellate capacity, the standard of review that the district
court applies is: (1) whether MVD acted fraudulently, arbitrarily, or capriciously; (2)
whether MVD’s decision is supported by substantial evidence; (3) whether MVD’s action
is outside the scope of its authority; or (4) whether MVD’s action was otherwise not in
accordance with law. Rule 1-074(R). On the other hand, “[m]andamus lies only . . . where,
on a given state of facts, [a] public officer has a clear legal duty to perform the act and there
is no other plain, speedy, and adequate remedy in the ordinary course of the law.” Mimbres
Valley Irrigation Co. v. Salopek, 2006-NMCA-093, ¶ 11, 140 N.M. 168, 140 P.3d 1117.
“The writ applies only to ministerial duties and it will not lie when the matter has been
entrusted to the judgment or discretion of the public officer.” Id. Thus, very different
considerations and standards apply as to how a district court is to treat the law and facts
before it, depending on whether the district court is acting in its appellate jurisdiction or in
its original mandamus jurisdiction.

{17} There are also additional consequences. When the district court sits in its appellate
capacity and issues a final order in a MVD driver’s license revocation case such as this, there
is no right to a further appeal in this Court. Rather, a timely petition for a writ of certiorari
must be filed in this Court, which is granted or denied at the discretion of the Court. Rule 1-
074(V); Rule 12-505 NMRA. Driver did not file a petition for certiorari, and even if we
could consider Driver’s docketing statement as such a petition, it was not timely, and we
would not have jurisdiction. See Bransford-Wakefield v. N.M. Taxation & Revenue Dep’t,
2012-NMCA-025, ¶¶ 9, 16, 18, 274 P.3d 122 (stating that “the timely filing of a petition for
a writ of certiorari” within thirty days of the district court’s final order to be reviewed “is a
mandatory precondition” to our exercise of jurisdiction, and while a docketing statement can

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substitute for a petition for writ of certiorari, it must also be filed within thirty days of the
order to be reviewed). On the other hand, when the district court acts under its original
jurisdiction, an aggrieved party has a right to appeal to this Court by filing a timely notice
of appeal in the district court and a timely docketing statement in this Court. Rule 12-202
NMRA; Rule 12-208 NMRA. In fact, due to the confusion caused by the district court’s
action, and whether Driver was required to file a petition for writ of certiorari or had
properly filed a notice of appeal, we issued an order to show cause why this appeal should
not be dismissed. See Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M. 786, 171
P.3d 300 (stating that an appellate court may raise a question of jurisdiction on its own
motion, and lack of jurisdiction at any stage must be resolved before proceeding further).
The parties’ responses to the order to show cause provided us with valuable insights in
disposing of this appeal.

{18} We therefore conclude that the district court erred in converting the administrative
appeal before it into a petition for writ of mandamus arising under its original jurisdiction
and that the order of the district court must therefore be reversed. We remand the case to the
district court for consideration in its appellate capacity.

CONCLUSION

{19} The order of the district court is reversed, and the case is remanded to the district
court for further proceedings in accordance with this opinion.

{20}    IT IS SO ORDERED.

                                                ____________________________________
                                                MICHAEL E. VIGIL, Judge

WE CONCUR:

___________________________________
JAMES J. WECHSLER, Judge

___________________________________
JONATHAN B. SUTIN, Judge




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