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 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

 7 ERIC L. SCHUSTER,

 8          Petitioner-Appellant,

 9 v.                                                           NO. 30,023

10   MOTOR VEHICLE DIVISION
11   DEPARTMENT OF TAXATION
12   AND REVENUE, STATE OF NEW
13   MEXICO, KEITH PERRY, DIRECTOR,

14          Respondents-Appellees.

15 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
16 Thomas J. Hynes, District Judge

17 Titus & Murphy, P.C.
18 Victor A. Titus
19 Farmington, NM

20 for Appellant

21 Gary K. King, Attorney General
22 Julia Belles, Special Assistant Attorney General
23 Santa Fe, NM

24 for Appellees

25                                 MEMORANDUM OPINION

26 FRY, Judge.
 1        The motor vehicle division (MVD) revoked the driver’s license of Appellant

 2 Eric L. Schuster (Driver), and Driver appealed to the district court. The district court

 3 affirmed, and Driver filed a combined notice of appeal and petition for writ of

 4 certiorari. This Court denied Driver’s petition for certiorari “as to those issues

 5 properly reviewed under the appellate jurisdiction of the district court” and, “[a]s to

 6 those issues arguably or clearly within the original jurisdiction of the district court and

 7 therefore before this Court on direct appeal,” we assigned the case to the general

 8 calendar. Our recently filed opinion in Glynn v. State of New Mexico Taxation &

 9 Revenue Department, 2011-NMCA-___, ___ N.M. ___, ___ P.__ ___ (No. 29,453,

10 Jan. 20, 2011), governs resolution of this appeal. We affirm.

11        Because the parties are familiar with the background of this case and because

12 this is a memorandum opinion, we do not provide a detailed description of the events

13 leading to this appeal.

14 DISCUSSION

15        Driver argues that the district court erred in: (1) refusing to hold a de novo

16 hearing on the issue of the legality of the stop that resulted in revocation of Driver’s

17 license, (2) finding that the officer lawfully stopped Driver, and (3) affirming the

18 revocation of Driver’s license despite the MVD hearing officer’s reliance on the HGN

19 field sobriety test. We do not address the third issue because it would properly be


                                                2
 1 reviewed under the district court’s appellate jurisdiction, and we denied Driver’s

 2 petition for writ of certiorari as to such issues. See Rule 12-505 NMRA (requiring a

 3 party appealing from a district court’s exercise of its appellate jurisdiction to file a

 4 petition for writ of certiorari).

 5        With respect to the remaining two issues, our decision in Glynn is dispositive.

 6 In Glynn, the driver appealing the revocation of his driver’s license made essentially

 7 the same arguments Driver makes in the present case. We concluded in Glynn that the

 8 Implied Consent Act, NMSA 1978, Sections 66-8-105 to -112 (1978, as amended

 9 through 2010), “does not require the MVD hearing officer to consider the validity of

10 the traffic stop underlying the license revocation at issue.” Glynn, 2011-NMCA-___,

11 ¶ 19. We further concluded that the constitutionality of the traffic stop is irrelevant

12 in license revocation proceedings because the exclusionary rule does not apply in such

13 proceedings. Id. ¶¶ 26, 33. Consequently, “the constitutionality of the stop need not

14 be decided by any tribunal for purposes of license revocation under the Act.” Id. ¶ 33.

15        Because the exclusionary rule does not apply in MVD license revocation

16 proceedings, the district court in the present case properly refused to hold a de novo

17 hearing on the legality of the underlying stop. In addition, the finding that the officer

18 lawfully stopped Driver is irrelevant.

19 CONCLUSION


                                               3
1      For the foregoing reasons, we affirm the district court’s order.

2      IT IS SO ORDERED.



3
4                                       CYNTHIA A. FRY, Judge

5 I CONCUR:



6
7 MICHAEL D. BUSTAMANTE, Judge


8 RODERICK T. KENNEDY, Judge (dissenting).




                                          4
 1 KENNEDY, Judge (dissenting).

 2        I respectfully dissent. In our decision in Maso v. N.M. Taxation & Revenue

 3 Dep’t, 2004-NMCA-025, 135 N.M. 152, 85 P.3d 276, we preserved the ability of a

 4 driver to question both the administrative decision by way of certiorari and raise

 5 constitutional issues under the reviewing court’s original jurisdiction. Relying on

 6 Glynn, an opinion that I believe was wrongly decided, the majority opinion in this

 7 case maintains that there are no constitutional matters that can be raised to question

 8 the constitutionality of the stop giving rise to the eventual implied consent revocation

 9 of Driver’s license.

10        I agree that in order to prove the elements required to revoke a driver’s license

11 it must be first proven that the officer had reasonable grounds to believe that the driver

12 was under the influence and second that the driver was arrested. NMSA 1978, § 66-8-

13 10112(E). This does not obviate the legality of the stop itself in my view. State v.

14 Rubio, 2006-NMCA-067, ¶ 11, 139 N.M. 612, 136 P.3d 1022, holds that traffic stops

15 are not consensual encounters, but seizures of the vehicle and its occupants and are

16 therefore analyzed to determine “whether the officer made a valid investigatory stop;

17 and . . . whether the officer’s actions during the investigatory detention were

18 reasonably related in scope to the circumstances that initially justified the stop.”

19 Reasonable grounds to believe the driver is intoxicated is also required prior to the


                                               5
 1 officer directing a chemical test at all. This invokes two different standards:

 2 reasonable grounds for a stop and for directing the test, and the probable cause then

 3 required for an arrest. Without proof by the State, who seeks the revocation, that

 4 either the stop or arrest of the driver was constitutionally permissible, I would hold

 5 that the requisite elements for revocation are not proven. In a state such as ours that

 6 provides increased constitutional protections to drivers against unreasonable seizures,

 7 I believe the better course of action is to require constitutionally valid stops and arrests

 8 as predicate facts to license revocation. See Tornabene v. Bonine ex rel. Highway

 9 Dep’t, 54 P.3d 355, 362 (Ariz. Ct. App. 2002) (holding that the predicate stop giving

10 rise to a DWI investigation must be lawful); People v. Krueger, 567 N.E.2d 717, 723

11 (Ill. App. Ct. 1991) (“[W]e are unwilling to conclude that the legislature intended to

12 authorize the suspension of drivers’ licenses based on the fruits of illegal arrests.”);

13 Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. Ct. App. 1985)

14 (holding that investigatory DUI stops that result in license revocation proceedings

15 must comply with Fourth Amendment standards); see also State v. Lussier, 757 A.2d

16 1017, 1023 (Vt. 2000) (relying on Vermont’s Constitution; state constitution

17 construed more liberally than Fourth Amendment); Pooler v. Oregon Motor Vehicles

18 Div., 306 Or. 47, 51, 755 P.2d 701, 703 (Or. 1988) (en banc) (The court refused to

19 “attribute to the legislature the intent to sanction unconstitutional procedures.” The


                                                6
1 court further stated that suspension of a driver’s license under the implied consent

2 statute must be based on a valid arrest, otherwise the resulting evidence must be

3 excluded); Watford v. Bur. of Motor Vehicles, 674 N.E.2d 776, 778 (Ohio Ct. App.

4 1996) (“[A] lawful arrest, including a constitutional stop,” is required before a refusal

5 to take a chemical test triggers license suspension.).




6                                          ___________________________________
7                                          RODERICK T. KENNEDY, Judge




                                              7
