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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                            NO. 33,201

 5 ROBIN W.,

 6          Child-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Dalene Marsh, District Judge

 9 Gary K. King, Attorney General
10 Sri Mullis, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 ZAMORA, Judge
 1   {1}   Child appeals from a delinquency judgment and disposition entered by the

 2 children’s court following her jury trial convictions for driving while under the

 3 influence of intoxicating liquor, driving without a license, and failure to maintain a

 4 traffic lane. This Court issued a calendar notice proposing summary reversal. The

 5 State filed a memorandum in opposition to this Court’s notice of proposed disposition,

 6 which we have duly considered. Unpersuaded, we reverse and remand for a new trial.

 7   {2}   In our calendar notice, we proposed to hold that considering the factors laid out

 8 in NMSA 1978, Section 32A-2-14(E) (2009), including the circumstances under

 9 which Child was questioned and the mental and physical condition of Child at the

10 time of being questioned, the State did not satisfy its burden to prove by a

11 preponderance of the evidence that Child knowingly and intelligently waived her

12 Miranda rights. [CN 8] See State v. Barrera, 2001-NMSC-014, ¶ 22, 130 N.M. 227,

13 22 P.3d 1177 (holding that when a defendant moves to suppress “a statement made

14 to police during a custodial interrogation, the [s]tate must demonstrate by a

15 preponderance of evidence that a defendant knowingly, intelligently, and voluntarily

16 waived his or her constitutional rights under Miranda”). Accordingly, we proposed

17 to reverse the children’s court’s decision to deny Child’s motion to suppress the

18 statements she made to the arresting deputies. [CN 8] The State’s memorandum in

19 opposition does not point to any specific errors in fact or in law in our calendar notice.


                                               2
 1 See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our

 2 courts have repeatedly held that, in summary calendar cases, the burden is on the party

 3 opposing the proposed disposition to clearly point out errors in fact or law.”). Instead,

 4 the State contests this Court’s application of the law to the facts, arguing that the

 5 children’s court did not err in finding that Child made a knowing, voluntary, and

 6 intelligent waiver because “[u]ncontroverted testimony established that Child

 7 expressly indicated that she understood her ‘mini-Miranda’ rights and agreed to speak

 8 with the deputies.” [MIO 10]

 9   {3}   In our calendar notice, we explained that “[i]n determining a knowing and

10 intelligent waiver of rights, we ascertain whether [the child] was fully aware of the

11 nature of the right [she] was waiving and the consequences of abandoning [her] right.”

12 State v. Martinez, 1999-NMSC-018, ¶ 21, 127 N.M. 207, 979 P.2d 718. [CN 5-6] In

13 making our assessment, we noted that although it appeared that the children’s court

14 made no findings of fact with regard to Child’s intoxication or any conclusions of law

15 with regard to the effect of that intoxication on Child’s ability to knowingly and

16 intelligently waive her Miranda rights, the record is replete with testimony from both

17 deputies regarding Child’s intoxication level. [CN 6] In its memorandum in

18 opposition, the State points out that “there is no per se rule that if a juvenile is

19 intoxicated, that juvenile cannot make a knowing, intelligent, and voluntary waiver


                                               3
 1 . . . .” [MIO 9] We agree, but add that we have held that “voluntary intoxication is

 2 relevant to determining whether a waiver was knowing and intelligent” and that

 3 “extreme intoxication is inconsistent with a waiver of rights.” State v. Young, 1994-

 4 NMCA-061, ¶¶ 12, 14, 117 N.M. 688, 875 P.2d 1119.

 5   {4}   In State v. Bramlett, this Court held that none of the statements the defendant

 6 made to the police officers were admissible because “it is difficult to reconcile [the

 7 officers’] conclusion of [the defendant’s] extreme intoxication with their opinion of

 8 his judgmental awareness of his rights and an intelligent waiver of them.” 1980-

 9 NMCA-042, ¶¶ 20, 22, 94 N.M. 263, 609 P.2d 345, overruled on other grounds by

10 Armijo v. State ex rel. Transp. Dep’t, 1987-NMCA-052, 105 N.M. 771, 737 P.2d 552.

11 The description of the defendant’s condition in Bramlett included “staggering, slurred

12 speech, difficulty in walking, strong alcoholic smell[,] and the intoxication test level

13 of .23[.]” Id. ¶ 20. The Bramlett Court also regarded the fact that the officers did not

14 release the defendant because of concerns for his safety as important to its analysis.

15 Id. ¶ 21. In the current case, terms such as “staggering” [RP 70], “stumbling” [RP 74],

16 “very intoxicated” [RP 70], and “slurring her speech” [RP 70] were used to describe

17 Child’s condition during the time frame in which she waived her Miranda rights.

18 Additionally, Child had vomit on the front of her shirt [RP 70] and Deputy Roberts

19 testified at trial that Child was not asked to perform field sobriety tests at the scene


                                              4
 1 “because she appeared to be so intoxicated.” [RP 108] After waiving her rights, Child

 2 proceeded to vomit in the police car and to “pass[] out.” [RP 74] At the substation,

 3 Child had a blood alcohol concentration (BAC) level of .18. [DS 3, RP 76]

 4   {5}   The State attempts to distinguish Bramlett from the current case by pointing out

 5 that the defendant’s BAC level was .23 in Bramlett and that Child’s breathalyzer test

 6 in this case “reflected a much lower reading of .18.” [MIO 8] Further, the State argues

 7 that “there was no evidence that the defendant in Bramlett showed signs of improved

 8 demeanor during his interaction with police[,]” whereas in this case, “Child’s

 9 demeanor markedly changed when she arrived to the police substation when she was

10 no longer exposed to the cold weather.” [MIO 8] We are not persuaded. As to the

11 State’s first contention, although Child’s BAC was lower than that of the defendant

12 in Bramlett, we note that the sixteen-year old Child in this case had a BAC level

13 greater than twice the legal limit. See NMSA 1978, § 66-8-102(C)(1) (2010) (stating

14 that it is unlawful to drive a vehicle with a BAC of .08 or more).

15   {6}   It appears that the State’s second contention—that Child’s demeanor changed

16 when she was no longer exposed to the cold weather—is aimed primarily at

17 distinguishing the physical signs of intoxication exhibited by Child from those

18 exhibited by the defendant in Bramlett. Indeed, throughout its memorandum in

19 opposition the State attempts to characterize Child’s “demeanor” as resulting from the


                                              5
 1 cold weather. In doing so, the State ignores or glosses over much of the testimony

 2 presented by the two deputies as to Child’s intoxication level. Specifically, as laid out

 3 in our calendar notice, testimony from the two deputies established that while

 4 investigating the accident, they observed Child “staggering” or “stumbling” toward

 5 them. [DS 2; RP 70, 74] Child appeared to be “very intoxicated” and had vomit all

 6 over the front of her shirt. [DS 2; RP 70] Child’s jacket was inside out. [MIO 2] Upon

 7 making contact, Deputy Adegite stated that Child had difficulty telling them her name.

 8 [DS 3; RP 74] After Deputy Roberts read Child her “mini-Miranda” warnings and

 9 Child agreed to speak with the deputies, Child admitted to driving the vehicle and

10 tried to provide further detail. [DS 2; RP 70, 74] However, “Child was slurring her

11 words to the point [that] she was incoherent and she [was] having a very difficult time

12 answering questions.” [DS 2-3] The deputies then placed Child in Deputy Adegite’s

13 vehicle, where she proceeded to vomit and “pass[] out.” [DS 3; RP 74]

14   {7}   In light of the deputies’ testimony that it was a cold morning [MIO 1; RP 71],

15 the State contends that “Child spoke with slurred speech and shivered and shook from

16 the cold weather, making it difficult for deputies to understand her at the scene of the

17 crash. However, after Child warmed up in the police unit and at the police substation,

18 she was easier to understand” [MIO 9]. To the extent that the State attempts to rely on

19 the cold as the reason that Child was incomprehensible, the cold does not explain


                                               6
 1 Child wearing her jacket inside out, stumbling and staggering toward the deputies

 2 from down the road, vomiting on multiple occasions, and passing out in the back of

 3 the police car. These are signs of extreme intoxication that we must consider under

 4 Young and Bramlett and we are not convinced that Child’s intoxication level at the

 5 time of the waiver was so different from that of the defendant in Bramlett as to

 6 distinguish the two cases.

 7   {8}   The State contends that, even in light of the foregoing, “[u]ncontroverted

 8 testimony established that child expressly indicated that she understood her ‘mini-

 9 Miranda’ rights and agreed to speak with the deputies.” [MIO 10] The testimony

10 being referred to is that of the two arresting deputies. [RP 70, 74] Both deputies

11 testified that after Deputy Roberts read the Child her rights, “she said she understood

12 and agreed to speak . . . .” [RP 70, 74] We acknowledge the force of the State’s

13 argument, especially given the nature of this Court’s review. See Barrera, 2001-

14 NMSC-014, ¶ 23 (“On appeal, we review the [district] court’s findings of fact for

15 substantial evidence and review de novo the ultimate determination of whether a

16 defendant validly waived his or her Miranda rights prior to police questioning.”).

17 However, like the situation in Bramlett, “it is difficult to reconcile” the detailed

18 description by the deputies of Child’s intoxication level at the scene of the accident

19 with “their opinion of [her] judgmental awareness of [her] rights and an intelligent


                                              7
 1 waiver of them.” 1980-NMCA-042, ¶ 20. This is particularly true in this case where

 2 Child was not asked to perform field sobriety tests at the scene “because she appeared

 3 to be so intoxicated.” [RP 108] As we asked in Bramlett, “[i]s one’s constitutional

 4 safety less worthy of protection than his physical safety?” Id. ¶ 21. Thus, “it is a

 5 contradiction of their own testimony and actions to believe that their opposing

 6 assessment of [her] ability to understand constitutes sufficient evidence that the

 7 statements and the waivers were given knowingly and voluntarily.” Id. Accordingly,

 8 we conclude as a matter of law that “[s]uch conflicting evidence from the same

 9 witnesses offends the standards of fundamental fairness under the due process clause

10 . . . and is unworthy of the degree of belief necessary to sustain a finding of voluntary

11 waiver.” Id. (internal citation omitted).

12   {9}   Finally, to the extent that the State depends on the conditions at the police

13 substation and the “responsiveness” of Child during questioning there to establish a

14 valid waiver [MIO 7-9], we are not persuaded. We note, though, that the children’s

15 court made a conclusion of law on a similar basis, specifically that Child was “aware

16 of [the][nature of the right being abandoned and the consequences of the decision to

17 abandon it]” because she “was in custody, had spent time sitting in [a] police car, was

18 taken to [the] substation, . . . [was] in a holding cell before they questioned her again

19 and gave her the intoxilizer test, that the Child was aware of her surroundings [and]


                                               8
 1 she knew what the consequences were.” [MIO 5] However, it is clear that Child was

 2 not re-read her Miranda rights at the police station [DS 3] and that her waiver

 3 occurred at the scene of the accident, not at the police station [MIO 2]. Thus, the facts

 4 that “[d]eputies questioned Child under comfortable conditions” and that “Child

 5 answered questions and could be understood while at the police substation” [MIO 9]

 6 only serve to further underscore the conditions under which the waiver was sought

 7 and given in contrast to those of the follow-up questioning.

 8   {10}   Therefore, for these reasons and those in our calendar notice, we hold that the

 9 State did not satisfy its burden to prove by a preponderance of the evidence that Child

10 knowingly and intelligently waived her rights. See State v. Spriggs-Gore, 2003-

11 NMCA-046, ¶ 8, 133 N.M. 479, 64 P.3d 506 (“Even though there may be some

12 evidence to support a finding of voluntary waiver, this Court will reverse when

13 convinced that the finding cannot be sustained by the preponderance of the evidence

14 and the inferences therefrom.”). Because we so hold, we need not address the other

15 issue raised in Child’s docketing statement.

16   {11}   Accordingly, we reverse the district court’s decision not to suppress the

17 statements made by Child and remand for a new trial.

18   {12}   IT IS SO ORDERED.




                                               9
1                                      _______________________________
2                                      M. MONICA ZAMORA, Judge

3 WE CONCUR:


4 __________________________________
5 TIMOTHY L. GARCIA, Judge


6 __________________________________
7 J. MILES HANISEE, Judge




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