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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

 7 CITY OF RIO RANCHO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 31,094

10 WAYNE KING,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
13 John F. Davis, District Judge

14 City of Rio Rancho
15 Gina R. Manfredi, City Attorney
16 Rio Rancho, NM

17 for Appellee

18 Fuentes & Associates, P.C.
19 Robert R. Fuentes
20 Rio Rancho, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 VANZI, Judge.
 1        Defendant appeals his conviction for DWI, third offense. We proposed to

 2 affirm in a calendar notice, and we have received a memorandum in opposition as well

 3 as a supplemental memorandum in opposition to our notice. We have duly considered

 4 Defendant’s arguments, but we find them unpersuasive. We affirm.

 5        In his memorandum in opposition, Defendant continues to make arguments

 6 previously made in the docketing statement, including claims that he was denied his

 7 right to a jury trial, he should have been given Miranda warnings, the city ordinance

 8 and state statute are in conflict with each other, and his refusal to submit to chemical

 9 testing was testimonial. We pointed out that similar arguments were addressed in City

10 of Rio Rancho v. Mazzei, 2010-NMCA-054, 148 N.M. 553, 239 P.3d 149, cert.

11 denied, 2010-NMCERT-005, 148 N.M. 575, 240 P.3d 1049, and we proposed to

12 affirm on that basis. To the extent that Defendant provides new argument and new

13 authority for his claims, we address those claims below.

14        Defendant claims that “Mazzei . . . does not address the argumentation

15 advanced by [Defendant]” and that Mazzei, “if announced today, would be in error.”

16 [MIO 2, 10] We disagree with Defendant’s contentions that certain cases decided

17 prior to Mazzei call the holding in Mazzei into doubt. The facts and legal questions

18 addressed in Mazzei were different from the circumstances in the older cases referred

19 to by Defendant. On the other hand, the situation in Mazzei is almost identical to that


                                              2
 1 in this case, and Mazzei directly addresses the issues raised by Defendant in this

 2 appeal.

 3        In this case, Defendant either uttered words or remained silent when asked if

 4 he would consent to be tested. Defendant’s response was deemed a refusal. [DS 2]

 5 Defendant claims that the officer would have been required to later testify about

 6 Defendant’s refusal in order to prove the case. Defendant refers to the description of

 7 “testimonial” statements in a recent United States Supreme Court decision and argues

 8 that his refusal to submit to chemical testing fits squarely within the description of a

 9 “testimonial” statement because its primary purpose was to establish events used for

10 criminal prosecution. Again, the specific question in this case was not presented in

11 the case cited by Defendant. As explained in Mazzei, there is no requirement for

12 Miranda warnings to prove physical evidence such as breath or blood, and the

13 privilege against self-incrimination does not protect an individual from being

14 compelled to produce physical evidence. Id. ¶¶ 25-26. As stated in Mazzei, when a

15 DWI suspect is compelled to submit a sample for testing, there is no enforced

16 communication and no “testimonial” compulsion involved. Id. ¶ 26. We reject

17 Defendant’s argument.

18        Defendant filed a supplement to his memorandum in opposition, which is not

19 permitted by our appellate rules. Even if we were to consider the supplement, we


                                              3
 1 would not agree with the argument advanced by Defendant. In the supplement,

 2 Defendant again argues that his refusal to submit to testing was a “testimonial”

 3 statement in response to custodial interrogation, and he claims that his argument is

 4 supported by a recent decision stating that un-warned statements cannot be used as

 5 evidence by the prosecutor in the case in chief. Defendant argues that it is not the

 6 “gathering of the evidence,” but the “method by which the evidence is gathered” that

 7 required Miranda warnings. [Supp. 4] Defendant claims that this argument was not

 8 addressed in Mazzei. Contrary to Defendant’s claim, we pointed out in Mazzei that

 9 a simple yes or no response was not testimonial, and Miranda warnings were not

10 required before the defendant was advised and tested. Id. ¶ 27.

11        As discussed in this opinion and in our calendar notice, we affirm the judgment

12 and sentence.

13        IT IS SO ORDERED.


14                                        __________________________________
15                                        LINDA M. VANZI, Judge

16 WE CONCUR:



17 _________________________________
18 MICHAEL D. BUSTAMANTE, Judge



                                             4
1 _________________________________
2 RODERICK T. KENNEDY, Judge




                                  5
