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                                                                    New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'04- 11:15:51 2017.11.03

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMSC-029

Filing Date: October 5, 2017

Docket No. S-1-SC-36197

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

LARESSA VARGAS,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Briana H. Zamora, District Judge

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

for Petitioner

Bennett J. Baur, Chief Public Defender
Steven James Forsberg, Assistant Appellate Defender
Albuquerque, NM

for Respondent

                                        OPINION

CHÁVEZ, Justice.

{1}     The United States Supreme Court recently held that (1) a law enforcement officer
may require a warrantless alcohol breath test from a person who is arrested for driving while
intoxicated (DWI) from alcohol because a breath test is a reasonable search incident to
arrest, but (2) an officer cannot require a warrantless blood test unless the officer has
probable cause to require the blood test and demonstrates exigent circumstances. Birchfield
v. North Dakota, ___ U.S. ___, ___, 136 S. Ct. 2160, 2184-86 (2016). Thus, under
Birchfield, a person who is arrested for DWI may be punished for refusing to submit to a

                                             1
breath test under an implied consent law, but may not be punished for refusing to consent
to or submit to a blood test under an implied consent law unless the officer either (a) obtains
a warrant, or (b) proves probable cause to require the blood test in addition to exigent
circumstances.

{2}     In this case, defendant Laressa Vargas consented to and submitted to two breath tests,
but refused to consent to a blood test. The arresting officer did not obtain a warrant for a
blood test, nor could he do so under New Mexico law, because he did not have probable
cause to believe that Vargas had committed a felony or caused death or great bodily injury
to another person while driving a motor vehicle under the influence of alcohol or a controlled
substance as required by NMSA 1978, Section 66-8-111(A) (2005). Vargas was convicted
of violating NMSA 1978, Section 66-8-102(D)(3) (2010, amended 2016) because she
refused to submit to a blood test; she received a sentence of ninety days in jail, with credit
for seventy-five days for time served.

{3}     The Birchfield opinion had not been decided when the Bernalillo County
Metropolitan Court entered its judgment convicting Vargas; however, Birchfield was
published while Vargas’s appeal was pending before the New Mexico Court of Appeals.
The Court of Appeals applied Birchfield and reversed Vargas’s conviction for aggravated
DWI. See State v. Vargas, 2017-NMCA-023, ¶¶ 2, 26, 389 P.3d 1080. We granted the
State’s petition for writ of certiorari to consider whether the Court of Appeals erred in
applying Birchfield. State v. Vargas, 2016-NMCERT-___ (No. S-1-SC-36197, Feb. 14,
2017). We conclude that the Court of Appeals correctly applied Birchfield to the pending
appeal because of a person’s fundamental right under the Fourth Amendment of the United
States Constitution not to be subjected to unreasonable searches, and because Birchfield
prohibits punishment under implied consent laws based on an arrestee’s refusal to consent
to and submit to a warrantless blood test. See Birchfield, ___ U.S. at ___, 136 S. Ct. at 2160,
2186.

I.     FACTUAL AND PROCEDURAL BACKGROUND

{4}    On April 23, 2011 at approximately 1:00 a.m., Bernalillo County Deputy Sheriff
Patrick Rael was part of a force conducting a DWI checkpoint on Coors Boulevard in
Albuquerque when he encountered Vargas. As Vargas approached the checkpoint, she
stopped fifteen to twenty yards before she reached where Deputy Rael was standing, and
Deputy Rael waved his flashlight to get her attention to indicate that she should move
forward. Vargas then rolled down her window and said “good afternoon,” which Deputy
Rael found odd, given the time of night.

{5}    Deputy Rael immediately noticed the odor of alcohol emanating from both Vargas’s
person and her vehicle. He also observed that Vargas’s eyes were bloodshot and watery.
Deputy Rael asked Vargas if she had been drinking, to which she answered that she had not.
She explained that she was the designated driver for her passenger, who had been drinking.
Deputy Rael described Vargas as “confused” and “nervous.”

                                              2
{6}    Deputy Rael requested that Vargas submit to field sobriety tests (FSTs), and Vargas
agreed. Vargas performed poorly on the FSTs. At that point Deputy Rael believed that
Vargas was intoxicated and could not safely operate a vehicle, so he placed her under arrest.

{7}      Deputy Rael read the pertinent provisions of the New Mexico Implied Consent Act
to Vargas, after which she agreed to a breath test. Vargas provided two breath test samples,
which resulted in readings of 0.04 at 1:33 a.m. and 0.05 at 1:35 a.m. Because he believed
that the breath test results were inconsistent with Vargas’s signs of impairment, Deputy Rael
determined that a blood test was the only other means to confirm Vargas’s intoxication,
particularly because he suspected that drugs were the cause of her impairment. Deputy Rael
then reread the Implied Consent Act to Vargas and explained that he was entitled to ask her
for both a breath test and a blood test. He subsequently asked Vargas to submit to a blood
test, and she agreed to do so. Deputy Rael wanted to verify Vargas’s answer, so he asked
her again if she was willing to submit to a blood test. Deputy Rael explained that the
possible consequences of refusing the blood test included an aggravated sentence and license
revocation. Vargas refused to take the blood test the second time she was asked, and she was
subsequently charged with aggravated DWI.

{8}     At the conclusion of the bench trial, the metropolitan court determined that the State
had proved beyond a reasonable doubt that Vargas drove while she was under the influence
of alcohol to the slightest degree.1 It also concluded that officers have the discretion to
request breath tests, blood tests, or both, and that Vargas’s refusal aggravated the underlying
DWI. The metropolitan court sentenced Vargas to a term of ninety days in jail for
aggravated DWI under Section 66-8-102(D)(3) (2010), which provides that

        [a]ggravated driving under the influence of intoxicating liquor or drugs
        consists of: refusing to submit to chemical testing, as provided for in the
        Implied Consent Act, and in the judgment of the court, based upon evidence
        of intoxication presented to the court, the driver was under the influence of
        intoxicating liquor or drugs.



        1
         While Section 66-8-102(A) does not provide the exact language of “impaired to the
slightest degree,” State v. Sisneros, 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274 effectively
created that standard, and State v. Gurule, 2011-NMCA-042, 149 N.M. 599, 252 P.3d 823
reaffirms it. See Sisneros, 1938-NMSC-049, ¶ 18 (“A person who has taken a drink of
intoxicating liquor is not necessarily under its influence; but if it affects him so that, to the
slightest degree, ‘he is less able, either mentally or physically or both, to exercise the clear
judgment and steady hand necessary to handle as powerful and dangerous a mechanism as
a modern automobile with safety to himself and the public,’ he is under the ‘influence of
intoxicating liquor’ within the meaning of the statute.” (citation omitted)); see also Gurule,
2011-NMCA-042, ¶ 7 (stating that a defendant found to be “impaired to the slightest degree”
has violated Section 66-8-102(A)).

                                               3
{9}     Vargas subsequently appealed to the Second Judicial District Court and then to the
Court of Appeals. After the United States Supreme Court decided Birchfield, Vargas raised
for the first time on appeal to the Court of Appeals the defense that the warrantless request
for the blood test was an unreasonable search under the Fourth Amendment, and that her
refusal to submit to it could not be used to prove aggravated DWI.

{10} Although the Court of Appeals concluded that Vargas’s constitutional argument was
not preserved, it decided the issue on the merits. See Vargas, 2017-NMCA-023, ¶¶ 14-15.
The Court reversed Vargas’s aggravated DWI conviction and remanded the case to the
metropolitan court for resentencing on the DWI charge based on Vargas being impaired to
the slightest degree pursuant to Section 66-8-102(A). Id. ¶¶ 2, 9, 19, 26. The State makes
two arguments before us: (1) Birchfield does not apply retroactively, and (2) the Court of
Appeals erred in applying Birchfield because the issue was not preserved.

II.    DISCUSSION

A.     Birchfield Applies Retroactively

{11} The State’s argument that Birchfield should not be applied retroactively is not
persuasive. In Teague v. Lane, the United States Supreme Court established the analysis that
courts must follow to determine whether a new rule applies retroactively. See 489 U.S. 288,
299-310 (1989). New Mexico courts have adopted this analysis. See Kersey v. Hatch, 2010-
NMSC-020, ¶¶ 21, 25, 148 N.M. 381, 237 P.3d 683. “An appellate court’s consideration of
whether a rule should be retroactively or prospectively applied is invoked only when the rule
at issue is in fact a new rule.” State v. Mascareñas, 2000-NMSC-017, ¶ 24, 129 N.M. 230,
4 P.3d 1221 (internal quotation marks omitted). The Teague Court determined that “a case
announces a new rule if the result was not dictated by precedent existing at the time the
defendant’s conviction became final.” 489 U.S. at 301 (emphasis omitted). The new rule
“applies to cases pending on direct appeal, as long as the issue was raised and preserved
below . . . .” Kersey, 2010-NMSC-020, ¶ 19 (citing State v. Nunez, 2000-NMSC-013, ¶ 114,
129 N.M. 63, 2 P.3d 264). Vargas did not preserve her Fourth Amendment argument in the
metropolitan court. Nonetheless, 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, including warrantless blood tests. See Vargas, 2017-NMCA-023, ¶
15. Birchfield announced an expansion of courts’ previous understanding of blood tests
under the Fourth Amendment. See ___ U.S. at ___, 136 S. Ct. at 2174-76 (“[T]he founding
era does not provide any definitive guidance as to whether [breath and blood tests to measure
blood alcohol content (BAC)] should be allowed incident to arrest. Lacking such guidance
. . . we examine the degree to which [they] intrud[e] upon an individual’s privacy and . . . the
degree to which [they are] needed for the promotion of legitimate governmental interests.”
(fourth through seventh alterations in original) (footnote omitted) (internal quotation marks
and citation omitted)). Birchfield specifically held for the first time that police officers do
not need to obtain a search warrant for a breath test from a subject because a breath test is
a search incident to arrest, but officers must obtain a search warrant for a blood test unless

                                               4
probable cause for the blood test and exigent circumstances are present. Id. at ___, 136 S.
Ct. at 2185. This new rule cannot apply retroactively unless “(1) it is a substantive rule that
alters the range of conduct or the class of persons that the law punishes, or (2) it is a
watershed rule of criminal procedure.” Kersey, 2010-NMSC-020, ¶ 31.

{12} The rule recently announced in Birchfield fits squarely within the first Teague
exception to the general principle against retroactive application because the new rule
“places ‘certain kinds of primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe.’ ” Teague, 489 U.S. at 307 (citation omitted).
Birchfield bars criminal sanctions previously imposed upon a subject for refusing to submit
to warrantless blood tests. See ___ U.S. at ___, 136 S. Ct. at 2185-86. Therefore, Birchfield
is applicable here.

B.     The Court of Appeals Had Broad Discretion to Review Sua Sponte the
       Unpreserved Fourth Amendment Issue on Appeal

{13} Generally, “[t]o preserve a question for review it must appear that a ruling or decision
by the district court was fairly invoked . . . .” Rule 12-216(A) NMRA (1993); see also Rule
3-706(I) NMRA (“The Rules of Civil Procedure for the District Courts shall govern the
procedure on appeal from the metropolitan court.”). During her bench trial, Vargas moved
to suppress any indication of her drug use and her refusal of the blood test based on three
grounds: (1) Deputy Rael did not perform a drug recognition evaluation, (2) there were no
blood results, and (3) the theory upon which the State was prosecuting Vargas was
ambiguous. The metropolitan court denied Vargas’s motion and focused primarily on her
third reason in concluding that the State had discretion to prosecute based on either alcohol
intoxication, drug-induced intoxication, or both. Importantly, Vargas’s motion to suppress
was not based on the Fourth Amendment grounds which formed the basis of her argument
to the Court of Appeals, and as a result, the metropolitan court’s ruling did not apply to the
specific constitutional issue on appeal. Therefore, this issue was not properly preserved
under Rule 12-216(A) (1993).

{14} However, questions involving “general public interest [or] fundamental error or
fundamental rights of a party” are exceptions to the general rule requiring preservation. Rule
12-216(B)(1)-(2) (1993). “[F]reedom from illegal search and seizure is a fundamental
right,” which is a matter of general public interest, and an appellate court may exercise its
discretion to consider an issue involving search and seizure protections even if it is not
preserved by a defendant. State v. Gomez, 1997-NMSC-006, ¶ 31 n.4, 122 N.M. 777, 932
P.2d 1.

{15} The State’s concern with the Court of Appeals’s review sua sponte of the merits of
Vargas’s argument is that it was not provided an opportunity for additional briefing to
address the scope and applicability of Birchfield, and was therefore inhibited from
developing the record to address the circumstances that would support probable cause and
exigent circumstances justifying a warrantless blood test. We agree that the Court of Appeals

                                              5
should have asked for additional briefing, particularly to address Birchfield, which was
decided while the present case was on appeal. Nevertheless, we remind litigants that when
an appellate court fails to request supplemental briefing, filing a motion for rehearing is a
valid option when the motion is “based upon a point of law . . . not raised, briefed or argued
by any party but relied upon by the court in its disposition of the matter . . . .” Rule 12-
404(A) NMRA (2009). Despite the fact that the Court of Appeals did not ask for additional
briefing, the record in this case is adequate to address the proper application of Birchfield,
and we therefore conclude that the Court of Appeals did not abuse its discretion by
addressing the application of Birchfield.

C.     Vargas Was Unconstitutionally Punished for Refusing to Submit to an
       Unreasonable Blood Test

{16} We review the merits of Vargas’s Fourth Amendment argument de novo. See State
v. Ryon, 2005-NMSC-005, ¶ 11, 137 N.M. 174, 108 P.3d 1032 (“The legality of a search . . .
turns on the question of reasonableness [and we] review the determination of reasonableness
de novo.”).

{17} “The Fourth Amendment, incorporated against state actors [such as police officers]
via the Fourteenth Amendment, requires that all searches and seizures be reasonable in their
execution.” State v. Leyva, 2011-NMSC-009, ¶ 9, 149 N.M. 435, 250 P.3d 861 (citations
omitted). To identify reasonableness, we balance “public interest and the [subject]’s right
to personal security free from arbitrary interference by law officers.” Id. (internal quotation
marks and citation omitted).

{18} Both breath tests and blood tests are searches, with each test implicating varying
privacy concerns. Birchfield, ___ U.S. at ___, 136 S. Ct. at 2173-74, 2176. Breath tests
elicit few privacy concerns; they only reveal a subject’s BAC, no sample is left in the
possession of the officer which may be used to obtain additional information, there is no
great embarrassment associated with this testing, and the tests collect only breath, which we
expel at all times. Id. at ___, 136 S. Ct. at 2176-78. In contrast to breath, we do not
regularly shed blood, and a blood test provides an officer with a sample from which more
information than mere BAC can be extracted. Id. at ___, 136 S. Ct. at 2178.

{19} The Fourth Amendment permits warrantless breath tests incident to legal arrests
because noninvasive breath tests only slightly impact a subject’s privacy and because the
state has an interest in testing BAC to maintain highway safety and deter drunk driving. Id.
at ___, 136 S. Ct. at 2184. The Birchfield Court held that blood tests bear too heavily on a
subject’s privacy interests to permit the state to seize warrantless samples at all DWI stops.
Id. at ___, 136 S. Ct. at 2178. Therefore, when a subject does not consent to such a search,
officers must obtain a warrant or establish probable cause and exigent circumstances to
justify a warrantless search. See id. at ___, 136 S. Ct. at 2185-86 (concluding that drivers
do not consent to criminal penalties for refusing invasive blood tests by virtue of driving on
public roads). Vargas consented to two breath tests. Deputy Rael subsequently asked Vargas

                                              6
to consent to a warrantless blood draw. Because she refused, Deputy Rael should have
assumed that a warrant was necessary, unless probable cause to request the blood test and
exigent circumstances obviated the need for a warrant.

{20} Section 66-8-111(A) defines the probable cause that is necessary to obtain a warrant
when a person under arrest refuses to consent to a chemical test.

       If a person under arrest for violation of an offense enumerated in the Motor
       Vehicle Code . . . refuses upon request of a law enforcement officer to submit
       to chemical tests designated by the law enforcement agency as provided in
       Section 66-8-107 NMSA 1978 [the implied consent provision], none shall be
       administered except when a municipal judge, magistrate or district judge
       issues a search warrant authorizing chemical tests as provided in Section 66-
       8-107 NMSA 1978 upon [the judge] finding in a law enforcement officer’s
       written affidavit that there is probable cause to believe that the person has
       driven a motor vehicle while under the influence of alcohol or a controlled
       substance, thereby causing the death or great bodily injury of another person,
       or there is probable cause to believe that the person has committed a felony
       while under the influence of alcohol or a controlled substance and that
       chemical tests as provided in Section 66-8-107 NMSA 1978 will produce
       material evidence in a felony prosecution.

{21} Deputy Rael had probable cause to believe that Vargas had driven a motor vehicle
while under the influence of alcohol or a controlled substance, but he did not have probable
cause to believe that Vargas had caused the death or great bodily injury of another person
while driving under the influence. Nor did Deputy Rael have probable cause to believe that
Vargas had committed a felony while under the influence of alcohol or a controlled
substance and that the chemical test would produce material evidence in a felony
prosecution. Vargas’s arrest occurred at a DWI checkpoint. The State does not contend that
she was driving under the influence and caused either death or great bodily injury to another.
The State also does not contend that Vargas committed a felony while she was under the
influence of alcohol or another substance.

{22} Because Deputy Rael lacked the probable cause required by Section 66-8-111(A) to
obtain a warrant, whether exigent circumstances existed is not relevant. See State v.
Tywayne H., 1997-NMCA-015, ¶ 16, 123 N.M. 42, 933 P.2d 251 (“[W]arrantless searches
are only permissible if they fall within an exception to the warrant requirement. Exceptions
include . . . probable cause plus exigent circumstances . . . .” (citation omitted)). Therefore,
Deputy Rael’s warrantless request of Vargas’s blood sample cannot be justified as
reasonable. Vargas was warned of potential additional punishment if she refused to submit
to what was an unreasonable search. Implied consent laws can no longer provide that a
driver impliedly consents to a blood draw. Birchfield, ___ U.S. at ___, 136 S. Ct. at 2185.
We conclude that Vargas cannot be subjected to criminal penalties for refusing to submit to
an unreasonable search. Contra id., ___ U.S. at ___, 136 S. Ct. at 2172, 2185-86 (reasoning

                                               7
that if the warrantless search comports with the Fourth Amendment, “it follows that a State
may criminalize the refusal to comply with a demand to submit to the required testing”).

III.   CONCLUSION

{23} For the foregoing reasons, we affirm the Court of Appeals in reversing Vargas’s
conviction for aggravated DWI and remanding for resentencing on DWI, impaired to the
slightest degree.

{24}   IT IS SO ORDERED.

                                             ____________________________________
                                             EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________
JUDITH K. NAKAMURA, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
BARBARA J. VIGIL, Justice




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