                                                   I attest to the accuracy and
                                                    integrity of this document
                                                      New Mexico Compilation
                                                    Commission, Santa Fe, NM
                                                   '00'04- 14:08:46 2012.08.22
         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-025

Filing Date: July 26, 2012

Docket No. 32,942

ERIC SCHUSTER,

       Petitioner-Petitioner,

v.

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

       Respondent-Respondent,

and

STATE OF NEW MEXICO,

       Real Party in Interest.

ORIGINAL PROCEEDING ON CERTIORARI
Thomas J. Hynes, District Judge

Titus & Murphy Law Firm
Victor A. Titus
Farmington, NM

for Petitioner

Gary K. King, Attorney General
Julia Belles, Special Assistant Attorney General
Taxation & Revenue Department
Santa Fe, NM

for Respondent and Real Party in Interest



                                            1
Rasheed & Associates, P.C.
Ousama M. Rasheed
Albuquerque, NM

Frechette & Associates, P.C.
Todd Hotchkiss
Albuquerque, NM

for Amicus Curiae New Mexico Criminal
Defense Lawyers Association

                                          OPINION

CHÁVEZ, Justice.

{1}     Eric Schuster (Schuster) appeals a decision of the Taxation and Revenue Department,
Motor Vehicle Division (MVD) to revoke his driver’s license pursuant to the Implied
Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2007). The
predominant issue in this case is whether MVD must find that the arrest of a driver charged
with driving while intoxicated (DWI) was constitutional as one of the prerequisites to
revoking the driver’s license. We answer this question in the affirmative and overrule Glynn
v. State, Taxation & Revenue Dep’t, MVD, 2011-NMCA-031, 149 N.M. 518, 252 P.3d 742
to the extent the Glynn court held that the constitutionality of the arrest need not be decided
in DWI license revocation hearings. We hold that the arrest required for a license revocation
must be constitutional, which also requires that the police activity leading to the arrest must
also be constitutional. Because we hold that the MVD must evaluate the constitutionality
of the arrest and the police activity leading to the arrest, for purposes of this opinion we will
refer to all such activity as the “arrest”.

{2}     The secondary issues concern (1) the district court’s jurisdiction to hear an appeal
from an MVD license revocation hearing regarding the constitutionality of an arrest, and (2)
whether the district court erred in affirming both MVD’s revocation of Schuster’s driver’s
license and MVD’s finding that the arrest of Schuster was constitutional. We hold that (1)
the district court’s review of constitutional issues in a license revocation hearing is
conducted under its appellate jurisdiction and not under its original jurisdiction, and (2) the
district court did not err in affirming MVD’s revocation of Schuster’s driver’s license
because the arrest of Schuster was constitutional.

I.      BACKGROUND

{3}    Between 1 and 2 a.m. of May 30, 2009, Farmington Police Officer David Karst
(Karst) observed Schuster driving a motorcycle in the parking lot of a bar when the
motorcycle fell over on its side before Schuster reached the roadway. Because he was
concerned that Schuster was injured, Karst drove into the parking lot, asked Schuster if he

                                               2
was all right, and then asked Schuster to move his motorcycle approximately fifteen feet
away from the entrance to the parking lot. Karst described his purpose in initially
approaching Schuster as “[a] welfare check, plain and simple,” to confirm that Schuster was
not injured and to assess any damage to the motorcycle for possible insurance claims.

{4}     After Schuster moved his motorcycle, Karst exited his vehicle and asked Schuster
if he had any injuries and whether there was any damage to his motorcycle. Schuster denied
being injured and showed Karst the damage to his motorcycle, which was a bent clutch
handle and a bent gear shift. While speaking with him, Karst smelled alcohol on Schuster’s
breath, noticed that his eyes were bloodshot and watery, and asked Schuster how much he
had had to drink that night. Schuster said that he had consumed two beers.

{5}      Karst had Schuster perform field sobriety tests, including the walk-and-turn and the
one-leg stand tests. Karst also administered the horizontal gaze nystagmus (HGN) test to
Schuster. Karst testified that Schuster performed these tests poorly. As a result of this
investigation, Karst arrested Schuster for DWI and transported him to the San Juan County
Detention Center. Upon their arrival at the detention center, Karst read Schuster the Implied
Consent Act advisory after which Schuster verbally consented to a breath test. Schuster
gave two breath samples, which registered readings of .13 and .14, respectively indicating
that his blood alcohol content exceeded the legal limit. Karst then issued Schuster a notice
that his driver’s license would be revoked. See § 66-8-111.1. Schuster requested a hearing
before MVD to challenge the revocation of his license.

{6}      On July 13, 2009 MVD held an administrative license revocation hearing at which
MVD sustained the revocation of Schuster’s driver’s license. MVD found, in relevant part,
that Karst had reasonable grounds to believe Schuster was driving a motor vehicle under the
influence of alcohol in accordance with Section 66-8-112(F)(1) and that Karst had arrested
Schuster in accordance with Sections 66-8-112(F)(1)-(2). MVD found that Karst had
initially contacted Schuster in Karst’s community caretaker role and that Karst’s expansion
of the initial contact into a DWI investigation was based on a reasonable suspicion that
Schuster was intoxicated, citing State v. Walters, 1997-NMCA-013, ¶ 26, 123 N.M. 88, 934
P.2d 282 (holding that an officer develops reasonable suspicion to continue an investigation
after noting alcohol on the driver’s breath). MVD also found that Karst had probable cause
to arrest Schuster for DWI because Schuster was in actual physical control of the
motorcycle, relying on Boone v. State, 105 N.M. 223, 227, 731 P.2d 366, 370 (1986)
(holding that a driver need only be in physical control of a vehicle and not actually driving
to form probable cause to arrest), holding limited on other grounds by State v. Sims, 2010-
NMSC-027, ¶¶ 10, 30-32, 148 N.M. 330, 236 P.3d 642.

{7}     Schuster appealed to the district court which, based on substantial evidence in the
record, affirmed MVD’s decision sustaining the revocation of his driver’s license. Schuster
then appealed to the Court of Appeals, raising three issues: whether the district court erred
by (1) refusing to hold a de novo hearing to decide the constitutionality of his arrest; (2)
finding that the arrest of Schuster was constitutional; and (3) affirming MVD’s finding of

                                             3
probable cause because the MVD improperly considered the results of the HGN test.
Schuster v. MVD, Dep’t of Taxation & Revenue, No. 30,023, slip op. at 2 (N.M. Ct. App.
Mar. 11, 2011). The Court of Appeals affirmed Schuster’s first two issues in a memorandum
opinion, declining to grant certiorari on Schuster’s third issue of whether the district court
erred in affirming MVD despite its reliance on the results of the HGN test, id., and therefore
did not address it. Schuster did not appeal the denial of certiorari on the third issue and
therefore we do not consider it. The Court of Appeals held that Glynn, 2011-NMCA-031,
¶¶ 19, 26, 33, controlled the outcome of the case for the first two issues. Schuster, No.
30,023, slip op. at 2, 3. Glynn held that “the [Implied Consent] Act does not require the
MVD to address the validity of the underlying traffic stop and because the exclusionary rule
does not apply in revocation proceedings, the constitutionality of the stop need not be
decided by any tribunal for purposes of license revocation under the Act.” 2011-NMCA-
031, ¶ 33.

{8}      We granted Schuster’s petition for writ of certiorari to consider whether (1) MVD
must conclude that an arrest as required by Section 66-8-112(F)(2) was constitutional before
revoking a driver’s license, (2) the district court should review license revocation appeals
de novo under its original jurisdiction or for substantial evidence as an appellate court, and
(3) the district court erred in affirming the MVD’s revocation of Schuster’s license. We hold
that (1) Sections 66-8-112(E), (F), and (G) require MVD to decide whether the arrest and
underlying police activity were constitutional as prerequisites to revoking a driver’s license
under the Implied Consent Act; (2) a district court reviews an MVD determination of the
constitutionality of the arrest as an appellate court; and (3) MVD correctly found that
Schuster’s arrest and all of the underlying police activity were constitutional and therefore
Schuster’s driver’s license was properly revoked.

II.    DISCUSSION

A.     THE ARREST AND UNDERLYING POLICE ACTIVITY MUST BE
       CONSTITUTIONAL TO SUPPORT THE REVOCATION OF A DRIVER’S
       LICENSE UNDER THE IMPLIED CONSENT ACT

{9}     Whether MVD must conclude that the arrest of a driver for DWI is constitutional
before revoking a driver’s license requires us to interpret the relevant provisions of Section
66-8-112. “Statutory interpretation is an issue of law, which we review de novo.” N.M.
Indus. Energy Consumers v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 19, 142
N.M. 533, 168 P.3d 105. When reviewing a statute, we 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.” Id. ¶ 20.

{10} Section 66-8-112 details the four elements that must be decided by MVD to revoke
a driver’s license. Failure to find all four elements precludes MVD from revoking a driver’s
license. § 66-8-112(G). For purposes of this appeal, the only relevant element is whether
“the person was arrested”. § 66-8-112(E)(2). Therefore, in this case, if Schuster was not

                                              4
arrested, MVD cannot sustain the revocation of his driver’s license. See § 66-8-112(G).
However, we must determine if the Legislature intended to authorize MVD to revoke a
driver’s license when there is an “arrest” under Section 66-8-112(F)(2) even when the arrest
is unconstitutional.

{11} Schuster argues that “arrest” should be read to mean a constitutional arrest. MVD,
relying on Glynn, responds that neither MVD nor the district court are required to analyze
the constitutionality of the arrest or the police activity leading to the arrest, because any
arrest satisfies the Implied Consent Act. See id., 2011-NMCA-031, ¶ 18. We agree with
Schuster.

{12} In Glynn, a police officer observed Tyler Glynn swerve in his vehicle and
subsequently strike a curb. 2011-NMCA-031, ¶ 2. After the officer made contact with
Glynn, the officer noted Glynn smelled of alcohol and Glynn admitted to drinking alcohol.
The officer administered field sobriety tests, which Glynn failed, and two breath alcohol tests
indicated .09 and .08 for his blood alcohol content. See id. As a result, Glynn was arrested
for DWI and was served with a notice that his driver’s license would be revoked under the
Implied Consent Act. Id. During the criminal DWI trial, Glynn moved to suppress the
evidence obtained during the traffic stop. Id. The municipal court granted the motion,
finding that the officer did not have probable cause to stop Glynn, and then dismissed the
criminal complaint against him with prejudice. Id.

{13} Armed with the municipal court’s order suppressing the evidence, Glynn filed two
motions with MVD. The first was a motion to dismiss the license revocation hearing,
claiming that MVD was collaterally estopped from considering the constitutionality of the
stop. Id. ¶ 3. The second was a motion to suppress the evidence obtained as a result of the
stop because the stop was unconstitutional. Id. MVD declined to apply the collateral
estoppel doctrine and denied the motion to suppress, thereby admitting all of the evidence
against Glynn during the license revocation hearing. See id. ¶ 4. Glynn appealed to the
district court, arguing that (1) MVD was collaterally estopped from considering the
constitutionality of the stop, (2) MVD did not have jurisdiction to consider the
constitutionality of the stop and, therefore, the district court should exercise its original
jurisdiction, (3) the officer did not have reasonable suspicion to stop Glynn, and (4) the
results of the blood alcohol test were invalid. Id. ¶¶ 5-6. The district court affirmed MVD
but declined to either review the constitutionality of the stop under its original jurisdiction
or address whether MVD had jurisdiction to consider the constitutionality of the stop. See
id. ¶ 5.

{14} Glynn then appealed to the Court of Appeals, id. ¶ 6, which affirmed the district court
and MVD. The Court of Appeals held that (1) the exclusionary rule, which would exclude
evidence obtained as a result of an unconstitutional arrest, does not apply in a license
revocation hearing, id. ¶ 26, and therefore (2) “the validity of the traffic stop is irrelevant to
the issues to be decided by the MVD,” id. ¶ 1.


                                                5
{15} Whether the exclusionary rule applies in license revocation hearings does not control
whether MVD must analyze the constitutionality of the arrest of a driver charged with DWI.
The question is did the Legislature intend a finding under Section 66-8-112(F)(2) that “the
person was arrested” to include a finding that the person’s arrest was constitutional. If the
answer is no, even an unconstitutional arrest will satisfy the requirement in Section 66-8-
112(F)(2). If the answer is yes, the legislature has provided the remedy for an
unconstitutional arrest: MVD is prohibited from revoking the driver’s license. See § 66-8-
112(G).

{16} Prior to the Glynn court’s holding, MVD had maintained, at least since 1988, that it
had implicit authority to determine the constitutionality of an arrest. See Glynn, 2011-
NMCA-031, ¶ 19 (citing State ex rel. Taxation & Revenue Dep’t MVD v. Van Ruiten, 107
N.M. 536, 538, 760 P.2d 1302, 1304 (Ct. App. 1988). And although not specifically
addressing what is meant by the term “arrest,” the Court of Appeals held in State v.
Richerson, 87 N.M. 437, 439-440, 535 P.2d 644, 646-647 (Ct. App. 1975), that a
constitutional arrest is essential to application of the Implied Consent Act.

{17} Numerous other jurisdictions have held that a constitutional arrest is required for the
application of an implied consent statute, basing their holdings on the plain meaning of the
word “arrest” and on the Fourth Amendment protections against an unreasonable search and
seizure. In Holland v. Parker, 354 F. Supp. 196, 199 (D.S.D. 1973), a three-judge panel held
that the Fourth Amendment requires a constitutional arrest prior to a request for submission
to a blood test under the South Dakota implied consent statute. The Holland court, citing
the United States Supreme Court opinion in Schmerber v. California, 384 U.S. 757, 768
(1966), reasoned that

       it would seem that if a police officer . . . cannot require a person to take a
       blood test without a warrant unless there is a lawful arrest and emergency
       circumstances, then neither could the officer demand that a licensee submit
       to the blood test, without these same constitutional prerequisites, when
       refusal would result in automatic loss of his [or her] license. If it were any
       other way, the Fourth Amendment protections would be rendered valueless
       since asserting them would result in a penalty potentially more severe than
       conviction for the alleged public offense.

Holland, 354 F. Supp. at 199. See also People v. Krueger, 567 N.E.2d 717, 721, 723 (Ill.
App. Ct. 1991) (holding that there needs to be a valid, lawful arrest to trigger license
revocation proceedings because, inter alia, to construe the statute otherwise would breach
the court’s duty to avoid construing a statute that will seriously call into question the
constitutionality of the statute); Watford v. Bureau of Motor Vehicles, 674 N.E.2d 776, 778-
79 (Ohio Ct. App. 1996) (holding, implicitly, that a Bureau of Motor Vehicles hearing
officer must determine whether an arrest supporting a license revocation, is constitutional);
Pooler v. MVD, 755 P.2d 701, 703 (Or. 1988) (en banc)(holding that “the legislature must
have intended a valid arrest when it used the term ‘under arrest’ in [the] statute”); State v.

                                              6
Wetherell, 514 P.2d 1069, 1072 (Wash. 1973) (en banc) (declining to interpret the word
“arrest” in its implied consent statute to include unlawful arrests).

{18} We conclude, consistent with these other jurisdictions, that 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.
Therefore, 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. Our
interpretation is consistent with the presumed constitutionality of a statute, City of
Albuquerque v. Jones, 87 N.M. 486, 488, 535 P.2d 1337, 1339 (1975) (a statute is presumed
constitutional), and avoids an interpretation of the Act that would call in to question its
constitutionality. See Lovelace Med. Ctr. v. Mendez, 111 N.M. 336, 340, 805 P.2d 603, 607
(1991) (“It is, of course, a well-established principle of statutory construction that statutes
should be construed, if possible, to avoid constitutional questions.” (citation omitted)).

{19} To summarize, the requirement in Section 66-8-112(E)(2)-(F)(2) that MVD find that
“the person was arrested” requires a finding that the arrest and police activity leading to the
arrest were constitutional. We overrule Glynn, 2011-NMCA-031, to the extent that it holds
otherwise. Because we conclude that MVD must determine whether the arrest is
constitutional, we next consider how the district court reviews the constitutionality of an
arrest on appeal.

B.     A DISTRICT COURT DOES NOT EXERCISE ORIGINAL JURISDICTION
       WHEN IT REVIEWS AN APPEAL REGARDING THE
       CONSTITUTIONALITY OF AN ARREST UNDER THE IMPLIED
       CONSENT ACT

{20} Schuster argues that even if MVD must consider the constitutionality of an arrest, the
district court reviews a license revocation de novo under its original jurisdiction and not for
substantial evidence under its appellate jurisdiction. Schuster relies on Maso v. State of New
Mexico Taxation & Revenue Dep’t, MVD, 2004-NMCA-025, ¶¶ 2, 12, 135 N.M. 152, 85
P.3d 276, aff’d, 2004-NMSC-028, 136 N.M. 161, 96 P.3d 286, for the proposition that
constitutional issues are beyond the subject matter jurisdiction of the MVD; therefore,
constitutional issues “must be considered in the first instance by the district court pursuant
to its original jurisdiction.” We disagree with Schuster because Maso is not controlling in
this case.

{21} In Maso, the Court of Appeals held that failure to serve the driver with a
Spanish-language notice of license revocation was a denial of due process, a constitutional
issue beyond the scope of MVD’s review. Id. ¶ 12. Thus, 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. See id. ¶ 14.

{22}   Because we hold that MVD must rule on the constitutionality of an arrest, the district

                                              7
court must review any appeal of MVD’s ruling in its appellate capacity. See N.M. State Bd.
of Psychologist Exam’rs v. Land, 2003-NMCA-034, ¶ 5, 133 N.M. 362, 62 P.3d 1244
(“When acting in its appellate capacity, the district court’s scope and standard of review is
limited in the same manner as any other appellate body.”).

{23} The constitutionality of an arrest is reviewed on appeal as a mixed question of law
and fact in which factual questions are considered for substantial evidence and the
application of law to the facts is reviewed de novo. See State v. Reynolds, 119 N.M. 383,
384, 890 P.2d 1315, 1316 (1995) (“Because this case involves a mixed question of law and
fact, we use the substantial evidence standard for review of the facts and then make a de
novo review of the trial court’s application of the law to those facts.”); State v. Granillo-
Macias, 2008-NMCA-021, ¶ 7, 143 N.M. 455, 176 P.3d 1187 (stating that the standard of
review to be applied to a lower court’s legal conclusions is de novo and the facts will be
reviewed for substantial evidence, giving deference to the lower court’s findings).

C.     THE DISTRICT COURT DID NOT ERR IN AFFIRMING MVD’S DECISION
       TO REVOKE SCHUSTER’S DRIVER’S LICENSE

{24} Because we conclude that the constitutionality of an arrest is reviewed by the district
court in its appellate capacity, we next review whether the district court erred in affirming
MVD in this case. In this case, MVD addressed the constitutionality of Karst’s actions with
Schuster some two years before the Court of Appeals issued Glynn. MVD found that (1)
Karst had permissibly interacted with Schuster in Karst’s community caretaker role, relying
on Walters, 1997-NMCA-013, ¶ 26; (2) Karst permissibly expanded the caretaker encounter
into a DWI investigation based on reasonable suspicion because of Schuster’s breath
smelling of alcohol and his watery and bloodshot eyes; and (3) Karst had probable cause to
arrest Schuster for DWI after Schuster failed several field sobriety tests and because Schuster
had been in physical control of the motorcycle when Karst first came on the scene.

{25} Schuster argues that the district court and MVD erred in sustaining the revocation
of his driver’s license for two reasons. One, because he was unreasonably seized by Karst
when Karst first asked him to move the motorcycle and therefore his subsequent arrest was
tainted by Karst’s initial improper actions. Two, the initial stop by Karst was
unconstitutional because it was pretextual. We are not persuaded by either argument.

     1. KARST’S INITIAL ENCOUNTER WITH SCHUSTER WAS AS A COMMUNITY
CARETAKER AND KARST DEVELOPED REASONABLE SUSPICION TO EXPAND THE
ENCOUNTER INTO A DWI INVESTIGATION.

{26} MVD found that at the time of Karst’s initial encounter with Schuster, Karst was
acting in his role as a community caretaker. An officer who is acting as a community
caretaker does not violate the Fourth Amendment. State v. Ryon, 2005-NMSC-005, ¶ 12,
137 N.M. 174, 108 P.3d 1032. In Ryon this Court clarified that the test for the community
caretaker exception to the warrant requirement is not the voluntary nature of the encounter,

                                              8
see Ryon, ¶ 20 (“Jason L. and Walters ought not be viewed as limiting the community
caretaker exception to voluntary . . . police-citizen encounters.”), but rather, “[w]hen
determining whether a warrantless search or seizure is reasonable on the basis of the
community caretaker exception, we must measure “the public need and interest furthered by
the police conduct against the degree of and nature of the intrusion upon the privacy of the
citizen.” Ryon, 2005-NMSC-005, ¶ 24 (internal quotation marks and citation omitted). The
test we employ is one of objective reasonableness based on the totality of the circumstances.
See id., ¶ 30 (“Our community caretaker cases also employ an objective test to determine
whether a vehicle stop is based on a reasonable concern for public safety.”).

{27} In this case, after Karst saw Schuster’s motorcycle fall over, he had a reasonable
basis for checking on Schuster’s welfare. Because of the motorcycle’s size and weight,
Karst was concerned that Schuster might have been injured as a result of the incident.
Karst’s initial action was only to ask Schuster if he was okay. According to Karst’s
testimony, when he witnesses an accident, he must assess whether there has been an injury
and whether the owner of the vehicle would like to file a report for insurance purposes. If
Karst was conducting a “welfare check, plain and simple,” then it is logical to infer that he
would investigate the incident until he was satisfied that his assistance was not needed. See
Ryon, 2005-NMSC-005, ¶ 25, 137 N.M. 174, 108 P.3d 1032 (recognizing that a continued
investigation by an officer in his or her role as a community caretaker is reasonable as long
as the officer is motivated by a desire to offer assistance and not investigate).

{28} Although Karst was in uniform and driving a marked police vehicle, he approached
Schuster in a non-threatening manner, and his asking Schuster whether he was okay can be
viewed objectively as a question that arises out of a concern for Schuster’s welfare and not
an intent to investigate. Karst’s request for Schuster to move his motorcycle away from the
parking lot exit was a reasonable action to prevent a safety hazard—the blocking of the exit
while bar patrons were trying to leave the bar. Under the facts before us, Schuster was not
seized for purposes of the Fourth Amendment during this initial contact.

{29} However, Karst expanded his role from being a community caretaker to investigating
a possible DWI. This expansion must also be constitutional, which requires reasonable,
articulable suspicion. See Jason L., 2000-NMSC-018, ¶ 14 (“An arrest must be supported
by probable cause and an investigatory stop must be supported by reasonable suspicion.”);
see also State v. Leyva, 2011-NMSC-009, ¶ 10, 149 N.M. 435, 250 P.3d 861 (“The scope
of the investigation may be expanded where the officer has reasonable and articulable
suspicion that other criminal activity has been or may be afoot.”) (internal quotation marks
and citation omitted)).

{30} Karst articulated many facts to support a finding that he had reasonable suspicion to
expand what was a community caretaker function into a DWI investigation. Karst testified
that he smelled a strong odor of alcohol coming from Schuster’s mouth and Schuster’s eyes
were bloodshot and watery. When Karst asked Schuster if he had been drinking, Schuster
admitted that he had consumed two beers. When the totality of the circumstances are

                                             9
considered, Karst had enough particularized and articulable information to continue
investigating whether Schuster was intoxicated. This testimony supported the MVD hearing
officer’s finding that Karst’s continued investigation of Schuster was reasonable because he
had formed reasonable suspicion.

{31} Karst continued his investigation by asking Schuster to perform field sobriety tests,
including the walk-and-turn test and the one-leg stand test. Karst testified that Schuster
performed poorly on these tests. Moreover, Karst had already observed Schuster driving a
motorcycle when the motorcycle fell over on its side before Schuster reached the roadway.
Based on this information, Karst arrested Schuster. Schuster subsequently consented to a
breath test and gave two samples, which registered readings of .13 and .14, respectively,
which suggested that his blood alcohol content exceeded the legal limits. Thus, there was
sufficient testimony for MVD hearing officer to find that Karst had probable cause to arrest
Schuster for DWI.

        2. KARST’S PURPOSE IN MAKING CONTACT WITH SCHUSTER WAS NOT
        PRETEXTUAL.

{32} However, Schuster next argues that his arrest was unconstitutional because the stop
was pretextual at its inception and therefore unconstitutional under Article II, Section 10 of
the New Mexico Constitution citing State v. Ochoa, 2009-NMCA-002, 142 N.M. 32, 206
P.3d 143. Schuster contends that Karst approached him with the primary motive of
investigating a DWI. MVD contends that this argument was not properly preserved by
Schuster and that “[t]here is no ruling from the district court for this Court to review.”

{33} To preserve an argument for appellate review, “it must appear that an appellant fairly
invoked a ruling of the trial court on the same grounds argued in the appellate court.”
Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987). In this
case, Schuster called the issue to the district court’s attention by arguing that “[T]he officer
ordered [Schuster] to stop and go to a location in the lot so that the officer could investigate.
Not to protect or preserve life or to avoid serious injury but as a pretext to do a [DWI]
investigation.” Schuster cited State v. Ochoa as establishing the test for determining whether
a stop was pretextual. Schuster also argued this issue before the Court of Appeals. We
conclude that Schuster did preserve this issue.

{34} New Mexico has departed from United States Supreme Court precedent in Whren v.
United States, 517 U.S. 806, 809-10 (1996), by holding that pretextual traffic stops are
constitutionally unreasonable. Ochoa, 2009-NMCA-002, ¶¶ 19-20, 38. “[A] pretextual stop
[is] a detention supportable by reasonable suspicion or probable cause to believe that a traffic
offense has occurred, but is executed as a pretense to pursue a ‘hunch,’ a different[,] more
serious investigative agenda for which there is no reasonable suspicion or probable cause.”
State v. Gonzales, 2011-NMSC-012, ¶ 12, 150 N.M. 74, 257 P.3d 894 (internal quotation
marks and citation omitted). A three-step approach is followed when determining whether
a pretextual stop has occurred:

                                               10
        First, the State has the burden to establish reasonable suspicion to stop the
        motorist. If the State fails in its burden, the stop is unconstitutional. Second,
        if the State satisfies its burden, the defendant may still establish that the
        seizure was unreasonable by proving that the totality of the circumstances
        indicates the officer had an unrelated motive to stop the motorist that was not
        supported by reasonable suspicion. If the defendant does not satisfy the
        burden, the stop is constitutional. Third, if the defendant satisfies the burden,
        there is a presumption of a pretextual stop, and the State must prove that the
        totality of the circumstances supports the conclusion that the officer who
        made the stop would have done so even without the unrelated motive.

Gonzales, 2011-NMSC-012, ¶ 12 (citing Ochoa, 2009-NMCA-002, ¶ 40) (the Ochoa test).

{35} Regarding the first prong of the test, MVD found that Karst’s initial contact with
Schuster was in Karst’s capacity as a community caretaker. We have already concluded that
MVD was correct in finding that Karst initiated contact with Schuster as a community
caretaker, and thus the State met its first burden in establishing a proper reason for the initial
encounter.

{36} The burden now shifts to Schuster to prove that the totality of circumstances indicate
Karst had an unrelated motive for approaching Schuster unsupported by reasonable
suspicion. Contrary to the numerous factual statements given by Karst that he saw
Schuster’s motorcycle fall and approached to provide assistance, Schuster argues that Karst
was using the accident as a pretext for the DWI investigation. Schuster bases his argument
on the facts that Karst stated in his testimony before MVD that his primary objective that
night was as a DWI enforcement officer, that Karst noted numerous DWIs occur at night
around the bar Schuster was leaving, and that Karst never actually saw him driving the
motorcycle before he fell. Because we review the facts as established by MVD under a
substantial evidence standard, we conclude that Schuster did not meet his burden of proving,
under the totality of circumstances, that Karst’s motive was unrelated to his motivations as
a community caretaker. See Jason L., 2000-NMSC-018, ¶ 10 (“The appellate court must
defer to [the factfinding] court with respect to findings of historical fact so long as they are
supported by substantial evidence.”).

{37} Even if we assume that Schuster met his burden under the second prong, Karst’s stop
was not pretextual if the State can show that the totality of the circumstances support the
conclusion that Karst would have made the stop regardless of the pretextual intent. Karst
testified that regardless of the surrounding circumstances, if “you crash a [motorcycle] in
front of a cop, you’re getting helped.” Karst testified that he personally observed Schuster’s
motorcycle fall, and, regardless whether he actually observed the fall, Karst saw the
motorcycle on the ground. Observing Schuster with his motorcycle on the ground certainly
gave Karst a motive for approaching Schuster regardless of any pretextual intent—to simply
ensure that Schuster was not injured from the fall. Thus, we conclude that the State met its
burden that Karst’s encounter was constitutional and not pretextual.

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III.    CONCLUSION

{38} We hold that (1) under Sections 66-8-112(E)(2) and G, MVD must find the arrest and
underlying police activity leading to the arrest are constitutional as a prerequisite to revoking
a driver’s license under the Implied Consent Act; (2) that a district court reviews
constitutional questions arising from a license revocation hearing as an appellate court; and
(3) in this case MVD and the district court correctly concluded that revocation of Schuster’s
driver’s license was proper. Accordingly, we affirm.

{39}    IT IS SO ORDERED.

                                                ____________________________________
                                                EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
CHARLES W. DANIELS, Justice

Topic Index for Schuster v. NM Dept. of Taxation & Revenue, Docket No. 32,942

ADMINISTRATIVE LAW AND PROCEDURE
Administrative Appeal

APPEAL AND ERROR
Standard of Review

CONSTITUTIONAL LAW
Exclusionary Rule
Fourth Amendment
New Mexico Constitution, General

CRIMINAL PROCEDURE
Exigent Circumstances
Implied Consent

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Pretextual Stop
Revocation of Driver’s License

GOVERNMENT
Implied Consent Act

JURISDICTION
Appellate Jurisdiction
District Court

STATUTES
Interpretation




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