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                                                          New Mexico Compilation
                                                        Commission, Santa Fe, NM
                                                       '00'05- 15:28:04 2013.01.24
Certiorari Denied, December 6, 2012, No. 33,871

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-016

Filing Date: September 19, 2012

Docket No. 31,164

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

TARA VALDEZ,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Michael E. Vigil, District Judge

Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM

for Appellant

Alex Chisholm
Albuquerque, NM

for Appellee

                                        OPINION

CASTILLO, Chief Judge.

{1}     The issue in this case is one of first impression: Does the language of NMSA 1978,
Section 66-8-102(N) (2010), mandating installation of an ignition interlock on vehicles
driven by persons convicted of driving while intoxicated (DWI), violate the Equal Protection
Clause of the United States and New Mexico Constitutions as applied to DWI offenders


                                             1
whose impairment is caused not by alcohol but by drugs?1 We conclude that it does not, and
we reverse.

I.      BACKGROUND

{2}     Under New Mexico law, it is unlawful for a person to drive a vehicle if that person
is under the influence of intoxicating liquor. See § 66-8-102(A). Similarly, it is unlawful
for a person to drive a vehicle if that person is under the influence of any drug to a degree
that renders the person incapable of safely driving a vehicle. See § 66-8-102(B). Section
66-8-102(C) sets out the per se standard for DWI convictions based on alcohol
concentration, and Section 66-8-102(D) deals with aggravated DWI. The portion of the
statute in question in this case, Section 66-8-102(N), applies to any offender convicted of
any type of DWI, and requires that offender to

        obtain an ignition interlock license and have an ignition interlock device
        installed and operating on all motor vehicles driven by the offender, pursuant
        to rules adopted by the traffic safety bureau. Unless determined by the
        bureau to be indigent, the offender shall pay all costs associated with having
        an ignition interlock device installed on the appropriate motor vehicles. The
        offender shall operate only those vehicles equipped with ignition interlock
        devices for:
                (1)     a period of one year, for a first offender;
                (2)     a period of two years, for a second conviction pursuant to this
        section;
                (3)     a period of three years, for a third conviction pursuant to this
        section; or
                (4)     the remainder of the offender’s life, for a fourth or subsequent
        conviction pursuant to this section.

An ignition interlock device is an electronic analyzer that measures breath-alcohol
concentration and prevents a driver from starting and continuing to operate a vehicle if the
driver’s blood-alcohol content exceeds a specified limit. See 18.20.11.11 NMAC (01/01/03).

{3}      Here, the facts are not in dispute. Defendant was charged with a first-time offense
after driving while intoxicated in Santa Fe County pursuant to Section 66-8-102(B). Results
of a blood test showed the presence in her system of oxycodone, diazepam, and
nordiazepam, but no alcohol. She entered into a conditional plea agreement wherein she
pled guilty to the first-time DWI but reserved the right to appeal any order requiring her to
install an ignition interlock device in her vehicle. In addition, she filed a motion to set aside


        1
        While we acknowledge that alcohol is normally considered to be a drug, for the
purposes of this Opinion we distinguish alcohol from other drugs whether they be
prescription or illegal. Consequently, when we refer to “drugs” we do not include alcohol.

                                               2
any requirement that she install an interlock device. The district court accepted the plea
agreement and further granted Defendant’s motion. Finding that “alcohol did not contribute
to . . . Defendant’s conviction,” the court ruled that the ignition interlock requirement did not
apply to her case because the interlock devices detect only alcohol, not drugs. The court
concluded that “there is no rational basis” for requiring a person in Defendant’s situation to
comply with the statute, in violation of equal protection guarantees of the state and federal
constitutions. The State appeals.

{4}      Defendant urges affirmance, claiming that the interlock provision is over-inclusive
in its classifications of drivers and under-inclusive in its remedies. The State argues for
reversal. It contends that the district court wrongly decided that the ignition interlock law
fails the rational basis test and argues that the court improperly concluded that the law is not
rationally related to the goal of preventing driving while impaired. We look to the statute
and subject it to the rational basis test as adopted by New Mexico courts.

II.     DISCUSSION

A.      Standard of Review, Scope of Review

{5}     New Mexico’s Constitution mirrors that of the United States in providing that “[n]o
person shall be . . . denied equal protection of the laws.” N.M. Const. art II, § 18; see U.S.
Const. amend. XIV. We have previously articulated the standard of review in such a
constitutional challenge and the approach to the three levels of scrutiny involved—strict,
intermediate, and rational basis:

                In analyzing which level of scrutiny should apply in an equal
        protection challenge, a court should look at all three levels to determine
        which is most appropriate based on the facts of the particular case. The
        determination of which level of scrutiny is applicable under the Constitution
        is a purely legal question, and is reviewed de novo.

Breen v. Carlsbad Mun. Sch., 2005-NMSC-028, ¶ 15, 138 N.M. 331, 120 P.3d 413.

{6}     The extent of our scrutiny depends “on the nature of the interest and the degree to
which it is infringed.” State v. Druktenis, 2004-NMCA-032, ¶ 86, 135 N.M. 223, 86 P.3d
1050 (internal quotation marks and citation omitted). The highest level of review, strict
scrutiny, is used if the liberty interest being impinged rises to the level of a fundamental
right, most notably in the areas of race or ancestry. Id. ¶ 89. Intermediate scrutiny is
appropriate for analyzing “legislative classifications infringing important but not
fundamental rights, and involving sensitive but not suspect classes.” Id. ¶ 97 (internal
quotation marks and citation omitted). Intermediate scrutiny is limited to classes involving
gender and illegitimacy. Id. ¶ 99.

{7}     Both parties agree that, absent an important right or sensitive class, neither of the two

                                               3
higher forms of scrutiny is applicable in this case and that rational basis is the appropriate
level of scrutiny for assessing the constitutionality of the interlock requirement. Under
rational basis scrutiny, the party challenging the constitutionality of the statute “must
overcome a presumption of constitutionality” and “is required to show that the statute’s
classification is not rationally related to the legislative goal.” Id. ¶ 16 (internal quotation
marks and citations omitted). Under this level of scrutiny, the classification need only be
rationally related to a legitimate governmental interest. Id. ¶ 102. Thus, we have endorsed
the proposition, expressed by the United States Supreme Court, that the Fourteenth
Amendment

       permits the [s]tates a wide scope of discretion in enacting laws which affect
       some groups of citizens differently than others. The constitutional safeguard
       is offended only if the classification rests on grounds wholly irrelevant to the
       achievement of the [s]tate’s objective. State legislatures are presumed to
       have acted within their constitutional power despite the fact that, in practice,
       their laws result in some inequality. A statutory discrimination will not be
       set aside if any state of facts reasonably may be conceived to justify it.

Id. ¶ 103 (quoting McGowan v. Maryland, 366 U.S. 420, 425-26 (1961)).

{8}     The burden on those challenging the constitutionality of legislative enactments is
therefore great. The United States Supreme Court has long abided by the “strong
presumption of validity” of legislative classifications and has stated that “those attacking the
rationality of the legislative classification have the burden to negative every conceivable
basis which might support it.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314-15 (1993)
(internal quotation marks and citation omitted). We have similarly stated that “the party
objecting to the legislative classification has the burden of demonstrating that the
classification bears no rational relationship to a conceivable legislative purpose.” Druktenis,
2004-NMCA-032, ¶ 104 (internal quotation marks and citation omitted). The challenging
party “must demonstrate that the challenged legislation is clearly arbitrary and unreasonable,
not just that it is possibly so.” Id. (internal quotation marks and citation omitted). In sum,
a defendant “must show that the classification serves no valid governmental interest, is
unreasonable and arbitrary as to amount to mere caprice.” State v. Edgington, 99 N.M. 715,
719, 663 P.2d 374, 378 (Ct. App. 1983).

B.      The Purpose of the Statute

{9}     “The ultimate purpose of the DWI laws is to protect the health, safety, and welfare
of the public by stopping people from driving under the influence of drugs and alcohol.”
State v. Hernandez, 2001-NMCA-057, ¶ 19, 130 N.M. 698, 30 P.3d 387; see State v.
Johnson, 2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233 (“The purpose of our DWI
legislation is to protect the health, safety, and welfare of the people of New Mexico.”). And
our courts have long acknowledged that the public interest in deterring DWI is compelling.
Johnson, 2001-NMSC-001, ¶ 17.

                                               4
{10} “[A] determination of what is reasonably necessary for the preservation of the public
health, safety and welfare of the general public is a legislative function and should not be
interfered with, save in a clear case of abuse.” Druktenis, 2004-NMCA-032, ¶ 106 (internal
quotation marks and citation omitted). “[T]he Legislature has broad discretion in
determining necessary measures for the protection of the public.” Id. ¶ 107. And a statute
will be upheld “if any state of the facts may be reasonably conceived to justify it[.]”
Edgington, 99 N.M. at 718, 663 P.2d at 377. In assessing the constitutionality of a statute,
we accept that “any redeeming value of the classification is sufficient.” Española Hous.
Auth. v. Atencio, 90 N.M. 787, 789, 568 P.2d 1233, 1235 (1977). “[E]ven a single
persuasive state interest may be sufficient to defeat a . . . claim that equal protection has been
denied.” Marrujo v. N.M. State Highway Transp. Dep’t, 118 N.M. 753, 760, 887 P.2d 747,
754 (1994).

{11} In the case before us, we first look to the text of the DWI statute for guidance. The
statute codifying the penalty of installation of an ignition interlock device is titled, in part,
“Driving under the influence of intoxicating liquor or drugs[.]” Section 66-8-102. That title
expresses the Legislature’s intention of having the statute apply to drivers who are under the
influence of either alcohol or drugs or both, making DWI one crime regardless of the cause.
See State v. House, 2001-NMCA-011, ¶ 22, 130 N.M. 418, 25 P.3d 257 (relying on the title
of the vehicular homicide statute to note that “the Legislature’s concern in enacting the
statute was death and injury caused by vehicle”). A conviction for DWI under any section
of the statute requires the offender “to obtain an ignition interlock license and have an
ignition interlock device installed and operating on all motor vehicles driven by the offender,
pursuant to rules adopted by the traffic safety bureau.” Section 66-8-102(N).

{12} The DWI statute is part of a broad legislative scheme, including the State’s separate
Ignition Interlock Licensing Act, which applies to those whose “privilege or driver’s license
has been revoked or denied.” NMSA 1978, § 66-5-503(A) (2009). The statute defines
“revoked” as applying to a person whose license or driving privilege has been terminated
“for driving while under the influence of intoxicating liquor or drugs.” NMSA 1978, § 66-5-
502(D) (2007). The statute also defines “ignition interlock device” as “a device . . . that
prevents the operation of a motor vehicle by an intoxicated or impaired person.” Section 66-
5-502(B). This companion statute does not differentiate between those who were convicted
of driving under the influence of alcohol or drugs. When analyzing Section 66-8-102 along
with other statutes, the legislative actions “should be harmonized and construed together
when possible, in a way that facilitates achievement of their goals.” Johnson,
2001-NMSC-001, ¶ 6. The goal of the Legislature was to criminalize DWI and to penalize
it with mandatory installation of ignition interlock devices without regard to the underlying
substance that led to the offender’s impairment and conviction.

C.      Legislative Authority

{13} We next analyze the authority of the Legislature and its use of DWI laws to protect
the health, safety, and welfare of the public. Over the years, the New Mexico Legislature

                                                5
has modified and toughened New Mexico’s DWI laws to combat a serious problem
throughout the state. Our Supreme Court has noted that “gradual and consistent increases
in punishment for repeated DWI violations and implementation of rehabilitation options
have been adopted to counter the problem of DWI in New Mexico.” State v. Anaya,
1997-NMSC-010, ¶ 17, 123 N.M. 14, 933 P.2d 223 (noting twelve amendments to the DWI
laws between 1941 and 1993, each of which “has adopted a slightly higher degree of penalty,
be it a mandatory jail term or court-ordered treatment for alcohol or drug abuse”). Our
Legislature, we have stated, has “broad latitude in experimenting with possible solutions to
problems of vital local concern.” Druktenis, 2004-NMCA-032, ¶ 71 (internal quotation
marks and citation omitted).

{14} Here, that concern revolves around violations of our DWI laws, in particular the goal
of preventing offenders from getting behind the wheel and again driving in an impaired state.
The ignition interlock requirement squarely addresses that concern by limiting the ability of
a previous DWI offender from operating a vehicle while under the influence of alcohol.
New Mexico has been a pioneer among states in combating DWI, and it was the first in the
nation to mandate an ignition interlock device for first-time offenders. See Joseph
Marutollo, Comment, No Second Chances: Leandra’s Law and Mandatory Alcohol Ignition
Interlocks for First-Time Drunk Driving Offenders, 30 Pace L. Rev. 1090, 1098 (2010). In
the first few years after implementing that harsher restriction, recidivism among drunk
drivers dropped about sixty-seven percent. See Ignition Interlocks: Every State, for Every
Convicted Drunk Driver, Madd.org, http://www.madd.org/laws/law-overview/
Draft-Ignition_Interlocks_Overview.pdf (revised 2012).

{15} Defendant complains that the classifications chosen by the Legislature are over-
inclusive because requiring installation of a device that detects only alcohol unfairly
ensnares those convicted of driving under the influence of drugs for no apparent reason or
benefit. But a degree of over-inclusiveness in the name of crime prevention is not fatal to
a statute; a legislature’s “resort to somewhat over[-]inclusive classifications is legitimate as
a prophylactic device to insure the achievement of statutory ends.” Druktenis,
2004-NMCA-032, ¶ 71 (internal quotation marks and citation omitted).

       We will not, as long as rational basis is the scrutiny slot through which we
       review statutes, look behind the Legislature’s over-inclusive classification
       unless it rests on grounds wholly irrelevant to the achievement of the [s]tate’s
       objective, and, as long as any state of facts reasonably may be conceived to
       justify it.

Id. ¶ 108 (internal quotation marks and citation omitted). Furthermore, “‘[i]n rational basis
scrutiny, a legislative choice is not subject to courtroom fact-finding and may be based on
rational speculation unsupported by evidence or empirical data.’” Id. ¶ 112 (quoting Beach
Commc’ns, Inc., 508 U.S. at 314-15).

{16}   The State offered such rational speculation in its response to Defendant’s motion to

                                               6
set aside the interlock requirement: “While the state may not have the ability or means with
an interlock device to prevent a driver under the influence of only drugs from operating a
motor vehicle, it can prevent that same class of people, who have already demonstrated
driving habits that pose a danger to the public, is at least not under the influence of alcohol.”
We also note that it is far from nonsensical to suggest that the Legislature, in ratcheting up
the penalties for the severe and increasing plague of DWI, concluded that those who have
been convicted of driving under the influence of drugs may also be disposed toward driving
under the influence of alcohol. As noted above, the Legislature imposed the penalty of
installation of an ignition interlock for first-time offenders under the heading of “driving
under the influence of intoxicating liquor or drugs.” Furthermore, we do not expect exact
precision when the Legislature imposes penalties to protect the public health, safety, and
welfare. See Dandridge v. Williams, 397 U.S. 471, 485 (1970) (“The problems of
government are practical ones and may justify, if they do not require, rough
accommodations—illogical, it may be, and unscientific.” (internal quotation marks and
citation omitted)). And while the Legislature certainly had the ability to narrow the
requirement of ignition interlock devices to only those convicted of driving under the
influence of alcohol, “[a]n inquiry into less restrictive alternatives . . . is not necessary when
applying the minimal rational basis test for analyzing legislation.” Powell v. N.M. State
Highway & Transp. Dep’t, 117 N.M. 415, 420, 872 P.2d 388, 393 (Ct. App. 1994); see Craig
v. Boren, 429 U.S. 190, 222 (1976) (“Whether the same ends might have been better or more
precisely served by a different approach is no part of the judicial inquiry under the traditional
minimum rationality approach.” (Rehnquist, J., dissenting)). “When employing the minimal
scrutiny test, the courts . . . will uphold the statute if any state of facts reasonably can be
conceived that will sustain the challenged classification.” Richardson v. Carnegie Library
Rest., Inc., 107 N.M. 688, 693, 763 P.2d 1153, 1158 (1988), overruled on other grounds by
Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305.

{17} We cannot say that requiring ignition interlock devices for all DWI offenders,
regardless of the type of substance that led to the conviction, amounts to an act of the
Legislature that “is unreasonable and arbitrary as to amount to mere caprice.” Edgington,
99 N.M. at 719, 663 P.2d at 378. Nor can we credibly argue that the penalty “serves no valid
governmental interest.” Id. We reaffirm the proposition that the Legislature is granted
“broad discretion in determining necessary measures for the protection of the public.”
Druktenis, 2004-NMCA-032, ¶ 107. We detect no element of caprice in the historical
approach taken by the Legislature in refining our DWI laws to protect the public from those
operating vehicles while impaired irrespective of the cause of the impairment.

{18} Further, we observe that it is not illogical for the Legislature to have imagined a
connection between the use of prescription drugs and the use of alcohol, especially among
young adults. See Sean Esteban McCabe, James A. Cranford, & Carol J. Boyd, The
Relationship Between Past-Year Drinking Behaviors and Nonmedical Use of Prescription
Drugs: Prevalence of Co-Occurrence in a National Sample, 84 Drug and Alcohol
Dependence 281, 282 (2006) (stating that “the drug most frequently used in combination
with prescription drugs was alcohol” and noting that about one-third of emergency

                                                7
department visits connected to oxycodone use also involved alcohol use). It has been
reported that “[t]here is growing evidence documenting the association between alcohol use
and [nonmedical use of prescription drugs]”; that “problem use of prescription drugs was
significantly higher among daily alcohol drinkers”; and that college students who abuse
prescription drugs are “over six times more likely to report frequent binge drinking and over
five times more likely to drive after binge drinking” than college students who did not abuse
prescription drugs. Id. at 285. See also Sean Esteban McCabe, James A. Cranford, Michele
Morales, & Amy Young, Simultaneous and Concurrent Polydrug Use of Alcohol and
Prescription Drugs: Prevalence, Correlates, and Consequences, J. Stud. Alcohol 529, 529
(July 2006) (finding a 12.1 percent occurrence of simultaneous use of alcohol and
prescription drugs among young adults and urging substance abuse prevention efforts at the
college level that clearly focus on co-ingestion of alcohol and prescription drugs). We
therefore conclude that a rational basis exists for the Legislature to require the installation
of alcohol-detecting ignition interlocks on the vehicles of all first-time DWI offenders, even
those whose offense involved only drugs and not alcohol.

D.      Defendant’s Additional Issues

{19} Defendant raises two side issues that we address briefly. She relies on NMSA 1978,
Section 66-8-102.1 (2003), which limits plea agreements, and contends that the second half
of the statute refers only to blood-alcohol content and thus she “could have negotiated a plea
agreement outside the scope of the interlock statute.” We disagree. Section 66-8-102.1 states
that “[w]here the complaint or information alleges a violation of Section 66-8-102 . . . , any
plea of guilty thereafter entered in satisfaction of the charges shall include at least a plea of
guilty to the violation of one of the subsections of Section 66-8-102.” As noted above, all
violations of the DWI statute require installation of the ignition interlock, even for first-time
offenders, regardless of the cause of impairment. See § 66-8-102(N).

{20} Next, Defendant asks us to distinguish between offenders who were under the
influence of illegal drugs and those who were under the influence of legal prescription drugs.
Defendant asks us to take judicial notice of statistics showing that 48 percent of all people
take prescription drugs, suggesting that it is folly to think that the Legislature intended to
both criminalize the behavior of nearly half the population of New Mexico and then try to
punish them by mandating installation of a pointless device. We are unpersuaded. The
theory of judicial notice is a way for a court to accept facts “not subject to reasonable
dispute” and can be accurately and readily determined from “sources whose accuracy cannot
reasonably be questioned.” Rule 11-201(B)(2) NMRA. Judicial notice is reserved for
obvious facts, universally accepted as true. See, e.g., City of Aztec v. Gurule,
2010-NMSC-006, ¶ 9, 147 N.M. 693, 228 P.3d 477 (taking judicial notice of a municipal
ordinance); State v. Yanez, 89 N.M. 397, 398, 553 P.2d 252, 253 (Ct. App. 1976) (taking
judicial notice of the fact that morphine is an opium derivative). While we decline to take
judicial notice of these statistics, Defendant may make the argument to the extent that it is
based on recognized authority.


                                               8
{21} Regardless, Defendant’s argument is flawed. The DWI statute does not punish
people for merely taking prescription drugs; it outlaws only those who are under the
influence of any drug taken “to a degree that renders the person incapable of safely driving
a vehicle.” Section 66-8-102(B). The level of impairment is what is at issue, and the
difference between legal drugs and illegal drugs does not bear on the extent to which a drug
may impair a driver. See Tina Wescott Cafaro, Slipping Through the Cracks: Why Can’t We
Stop Drugged Driving?, 32 W. New Eng. L. Rev. 33, 56 (2010) (noting that “[i]mpairment
from licit drugs can parallel the symptoms of illicit drugs”). In sum, the Legislature is
outlawing impaired driving in and of itself, not the method by which one becomes impaired.
And here, Defendant was not merely ingesting prescription drugs under a doctor’s care; she
was operating a vehicle while impaired by those drugs.

III.   CONCLUSION

{22} When we apply rational basis scrutiny to the State’s ignition interlock mandate, we
conclude that the district court erred in finding that the requirement violated equal protection
when applied to a defendant who had only drugs and no alcohol in her system at the time of
the offense. For the foregoing reasons, we reverse the ruling of the district court and remand
for further proceedings consistent with this Opinion.

{23}   IT IS SO ORDERED.

                                               ____________________________________
                                               CELIA FOY CASTILLO, Chief Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
CYNTHIA A. FRY, Judge

Topic Index for State v. Valdez, No. 31,164

APPEAL AND ERROR
Standard of Review

CONSTITUTIONAL LAW
Equal Protection
New Mexico Constitution, General
Vague or Overbroad

CRIMINAL LAW

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Driving While Intoxicated




                            10
