 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 HENRY DOMINGUEZ,

 8          Appellant-Respondent,

 9 v.                                                                           NO. 29,833

10 STATE OF NEW MEXICO TAXATION
11 and REVENUE DEPARTMENT, MOTOR
12 VEHICLE DIVISION,

13          Appellee-Petitioner.


14 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
15 Louis P. McDonald, District Judge

16 Henry Dominguez
17 Pena Blanca, NM

18 Pro Se Respondent

19 Gary K. King, Attorney General
20 Julia Belles, Special Assistant Attorney General
21 Santa Fe, NM

22 for Petitioner

23                                 MEMORANDUM OPINION

24 WECHSLER, Judge.
 1        This case came before this Court when Petitioner, the New Mexico Taxation

 2 and Revenue Department, Motor Vehicle Division (MVD), filed a petition for writ of

 3 certiorari seeking review of the district court’s order that reverses the administrative

 4 revocation of Respondent Dominguez’s (Driver) driver’s license. We granted the

 5 petition and proposed to affirm in our second notice. Driver filed a timely response

 6 agreeing with our proposed disposition, and MVD filed a timely memorandum in

 7 opposition. We remain unpersuaded by MVD’s arguments and therefore affirm.

 8 BACKGROUND

 9        At issue is the revocation of Driver’s license based on his refusal to provide a

10 second breath sample. [petition/1-2] Driver was arrested for DWI and agreed to take

11 a breath test. [petition/2] Driver provided a breath sample, and then the breath test

12 machine’s internal calibration check indicated that the machine was out of tolerance.

13 [petition/2] Consequently, the arresting deputy called for a key operator to check the

14 machine, the key operator did eventually fix the problem, but the process took about

15 two hours. [petition/3] After the machine was fixed, the arresting deputy told Driver

16 that he had only provided one sample and would have to submit an additional sample

17 to avoid a revocation of his license based on refusal to submit to a breath test.

18 [petition/3] Driver refused to provide an additional breath sample because he

19 maintained that he had already provided two samples before the two-hour delay, and


                                              2
 1 because he did not want to provide another breath sample after the two-hour delay.

 2 [blue clip/3; green clip/3; RP 4]

 3         The hearing officer determined that Driver had provided only one sample prior

 4 to the two-hour delay. [RP 3] The hearing officer revoked Driver’s license based on

 5 his refusal to provide the second breath sample, concluding that the two-hour delay

 6 caused by mechanical problems between the first and second breath samples did not

 7 justify Driver’s refusal to provide the second breath sample. [RP 3-4] Upon Driver’s

 8 appeal to the district court, the judge ruled that Driver’s refusal to provide a second

 9 breath sample did not constitute a “refusal” under the Implied Consent Act. [RP 79]

10 In this regard, the district court ruled that “[t]he testing procedure . . . was contrary to

11 [the] regulations . . . that require breath samples to be collected within fifteen minutes

12 of each other.” [RP 79]

13         We note that there is some ambiguity with regard to the interchangeability of

14 the terms “breath test” and “breath sample.” For this reason, we clarify that our

15 analysis is premised on the understanding that Driver agreed to take a breath test,

16 consisting of two samples; and that Driver provided one breath sample, but after a

17 two-hour delay caused by mechanical problems, then refused to provide the second

18 breath sample. [RP 3, 79]

19 Discussion


                                                3
 1        We acknowledge the holding in State v. Vaughn, 2005-NMCA-076, ¶ 41, 137

 2 N.M. 674, 114 P.3d 354, which recognizes that it is “the [L]egislature’s intent to

 3 require that DWI suspects provide two breath samples and that those who, without

 4 reasonable justification, provide one sample have failed to take the test” as required

 5 by the Implied Consent Act. (Emphasis added.) [MIO 2] We similarly acknowledge

 6 the holdings in Fugere v. State, Taxation & Revenue Department, 120 N.M. 29, 35,

 7 897 P.2d 216, 222 (Ct. App. 1995) (providing that “a motorist cannot refuse to take

 8 a chemical test of breath or blood designated by law enforcement and as provided by

 9 statute merely because he believes such tests are unreliable”) [MIO 3, 4] and McKay

10 v. Davis, 99 N.M. 29, 30, 653 P.2d 860, 861 (1982) (holding that it is well-established

11 that there is no right to refuse chemical testing under the Implied Consent Act). [MIO

12 3] However, MVD’s reliance on these cases is misplaced. While a driver does not

13 have the right to refuse to take a breath test just because the driver believes it is

14 unreliable [MIO 3], as we discuss below, a driver also is not required to submit a

15 breath sample that is not authorized under the Implied Consent Act (ICA). Declining

16 to submit an unauthorized sample cannot amount to a refusal upon which revocation

17 can be based under the ICA.

18        Neither Vaughn, Fugere, nor McKay negates the underlying specific regulatory

19 requirement, as relied upon by the district court, that unambiguously states that “[t]he


                                              4
 1 two breath samples shall be taken not more than 15 minutes apart.”                 See

 2 7.33.2.12(B)(1) NMAC. This applicable regulation provides no exception for delays

 3 caused by mechanical problems. Implicit in the requirement that the suspect submit

 4 two breath samples is the requirement that they be provided within fifteen minutes of

 5 each other. Thus, if mechanical malfunctions prevent this time-frame from being met,

 6 then a driver who consequently refuses to provide a second breath sample because of

 7 the failure to meet this time-frame has not violated the ICA. See State, Dep’t of

 8 Transp. v. Romero, 106 N.M. 657, 659, 748 P.2d 30, 32 (Ct. App. 1987) (construing

 9 a refusal under the ICA to only include a “declination of a request or demand . . . to

10 comply with some requirement of law” (emphasis added) (internal quotation marks

11 and citation omitted)). In this regard, we are mindful of Vaughn’s statements that

12 absent reasonable justification, two breath samples are required and recognition that

13 “anything short of full and unequivocal consent is a refusal except in very limited

14 circumstances.”    2005-NMCA-076, ¶ 41.         Vaughn provides that such limited

15 circumstances would include, for example, “a situation where injury to mouth or lungs

16 could prevent a suspect from providing a breath sample.” Id. ¶ 40. As applied to the

17 present circumstances, we similarly conclude that mechanical difficulties that preclude

18 consent within the requisite fifteen-minute period provide reasonable justification for

19 Driver submitting only one breath sample.


                                              5
 1        We lastly remain unpersuaded by MVD’s argument that reliance on the fifteen-

 2 minute regulation places an unfair burden on the police in the event of a

 3 malfunctioning machine. As noted by the district court, “other alternatives, including

 4 other breath testing machines in the County and the option of a blood test were

 5 available to obtain compliance with the Implied Consent Act.” [RP 79] Nonetheless,

 6 even if such alternatives were not feasible [MIO 3], as acknowledged in Vaughn, id.

 7 ¶ 38, while the Legislature intended that two breath samples be collected, if only one

 8 can be obtained, the test is still valid. As discussed above, in the event mechanical

 9 difficulties precluded compliance with the fifteen-minute requirement, then one breath

10 sample would have been sufficient for pursuing criminal administrative revocation of

11 Driver’s license, assuming of course that his sample showed he was intoxicated. In

12 short, we continue to disagree with MVD’s contention that Driver’s license should

13 have been revoked based on refusing to provide a second sample. As noted above, a

14 refusal occurs when a driver declines to comply with some requirement of law. See

15 Romero, 106 N.M. at 659, 748 P.2d at 32. There is no requirement that a driver

16 provide a second sample two hours after the first sample. Driver was only required

17 to submit two samples within fifteen minutes. See 7.33.2.12(B)(1) NMAC. Having

18 failed to give Driver the opportunity to comply with this requirement, we agree with

19 the district court that MVD cannot revoke Driver’s license for refusing to submit a


                                             6
1 breath sample that was not mandated by law.

2 CONCLUSION

3       Based on the foregoing discussion, we affirm.

4       IT IS SO ORDERED.



5                                               ________________________________
6                                               JAMES J. WECHSLER, Judge

7 WE CONCUR:



8 _______________________________
9 CYNTHIA A. FRY, Chief Judge



10 _______________________________
11 JONATHAN B. SUTIN, Judge




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