February 13, 2017- Juan Antonio Ochoa Barraza v. State of New Mexico Taxation & Revenue Dept, Motor Vehicle Division, No. 34,245

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: February 13, 2017

NO. 34,245

JUAN ANTONIO OCHOA BARRAZA,
Petitioner Appellant,

V.

STATE OF NEW MEXICO TAXATION

AND REVENUE DEPARTMENT,

MOTOR VEHICLE DIVISION,
Respondent- Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge

Ben A. Ortega
Albuquerque, NM

for Appellant

Hector H. Balderas, Attomey General

Taxation and Revenue Department, Legal Services Bureau
Gabrielle Dorian, Special Assistant Attomey General
Diana Martwick, Special Assistant Attomey General
Santa Fe, NM

for Appellee

OPINION
VIGIL, Judge.
{1} 	The New Mexico Taxation and Revenue Department, Motor Vehicle Division
(MVD), revoked Driver Juan Antonio Ochoa Barraza’s license under the Implied
Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2015),
and Driver appealed to the district court. Instead of hearing the case in its appellate
capacity, the district court, on its own motion converted the case into a petition for
writ of mandamus, arising under its original jurisdiction, and denied mandamus relief.
We conclude that the district court erred in converting the appeal into a petition for
writ of mandamus, and remand the case to the district court to decide the case as an
appeal.
BACKGROUND
{2} 	Bernalillo County Sheriff’s Deputy Jason Foster stopped Driver for failing to
maintain a traffic lane. Upon seeing that Driver had bloodshot, watery eyes, and
smelling the odor of an alcoholic beverage coming from the vehicle, Deputy Foster
told Driver to exit the vehicle, whereupon he noted an odor of alcohol coming from
Driver’s person. Driver told Deputy Foster that he spoke Spanish, and Deputy Foster
called for a Spanish-speaking deputy before giving Driver field sobriety tests. Deputy
Jareno responded and translated the instructions given by Deputy Foster to Driver.

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Driver failed the field sobriety tests, and Deputy Foster arrested Driver for driving
while under the influence of intoxicating liquor or drugs (DWI). NMSA 1978, § 66-8-
102 (2010, amended 2016).
{3} 	Although Deputy Jareno was present, Deputy Foster read the implied consent
advisory to Driver in English. Deputy Foster informed Driver that he was under arrest
for DWI and that the Implied Consent Act required him to submit to a breath or blood
test, or both, to determine the alcohol or drug content of his blood. Deputy Foster
further informed Driver that if he took the test, he had a right to take an additional test
of his choosing, together with the right to a reasonable opportunity to arrange for a
physician, licensed nurse, laboratory technician or technologist employed by a
hospital or physician to perform the additional test, the cost of which would be paid
by the law enforcement agency. Deputy Foster then asked Driver if he agreed to a
breath test, and Driver said, “No.” Deputy Foster then advised Driver that if he
refused, he would lose his driver’s license for one year and that, if he was convicted,
he could receive an enhanced sentence due to the refusal. Deputy Foster asked Driver,
having that in mind, did he now agree to take the tests, and Driver again answered,
“No.”
{4} 	Deputy Foster issued Driver a notice of revocation of his driver’s license for
one year, and of his right to an administrative hearing before MVD to contest the

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revocation. 	Sections 	66-8-111(B) 	and 	66-8-111.1. 	Driver’s 	request 	for 	an
administrative hearing was granted. The notice of the hearing specified that one of the
issues to be decided was whether Driver “refused to submit to requested breath and/or
blood testing, after having been advised that failure to submit could result in
revocation of [Driver’s] privilege to drive[.]”
{5} 	A hearing was held before MVD hearing officer Jane Kircher pursuant to
Section 66-8-112. After considering the testimony, Kircher set forth the evidence in
detail to support her factual determination that Driver spoke English and understood
the implied consent advisory given in English by Deputy Foster, including the
consequences of refusing the requested tests. Kircher therefore rejected Driver’s
argument that the due process protected by Article II, Section 18 of the New Mexico
Constitution and cases addressing the giving of Miranda warnings in Spanish to a
Spanish-speaker required Deputy Foster to read or give the implied consent advisory
to Driver in Spanish. Kircher found that Driver “refused to submit to a requested
chemical test after he was properly advised that he would lose his privilege to drive
if he refused the test[,]” and entered an order sustaining the revocation of Driver’s
license for one year. Driver was advised of his right to appeal and seek review of the
revocation in the district court.
{6} 	Driver appealed MVD’s revocation of his driver’s license to the district court.

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See § 66-8-112(H); Rule 1-074(A) NMRA (setting forth the procedure for an appeal
from an administrative agency to the district court “when there is a statutory right of
review to the district court”). In his statement of issues on appeal, Driver argued that
even if he spoke English at some level, there was no way to gauge his actual
understanding of what Deputy Foster told him, and because Deputy Jareno was
present and able to translate, the implied consent advisory should have been given to
him in Spanish, his native language. Driver also argued that Deputy Foster’s failure
to give the implied consent advisory in Spanish violates the due process protected by
Article II, Section 18 of the New Mexico Constitution. MVD responded that the
evidence supported the hearing officer’s finding that Driver understood English and
the implied consent advisory.
{7} 	The district court recognized that the case before it was an appeal from MVD’s
decision revoking Driver’s license. However, because the district court ruled that
MVD had no jurisdiction to rule on Driver’s due process argument, the district court
also 	concluded 	it 	had 	no 	jurisdiction 	to 	decide 	the 	appeal. 	In 	making 	this
determination, the district court referred to our decision in Maso v. New Mexico
Taxation & Revenue Dep’t, 2004-NMCA-025, 135 N.M. 152, 85 P.3d 276, affirmed,
2004-NMSC-028, 136 N.M. 161, 96 P.3d 286. Without notice to the parties and on
its own motion, the district court then construed the appeal as a petition for writ of

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mandamus, and, finding no basis to issue a writ of mandamus, denied relief. Driver
appeals.
ANALYSIS
{8} 	This case requires us to determine whether the relevant portion of Section 66-8-
112 grants authority to MVD to decide Driver’s due process claim in an administrative
hearing under the Implied Consent Act. This is a question of law that we review de
novo. See Schuster v. N. M. Dep’t of Taxation & Revenue, 2012-NMSC-025, ¶ 9, 283
P.3d 288 (stating “[w]hether MVD must conclude that the arrest of a driver for DWI
is constitutional before revoking a driver’s license requires” that Section 66-8-112 be
interpreted, and that ‘statutory interpretation’ presents a question of law that is
reviewed de novo); Martinez v. N.M. State Eng’r Office, 2000-NMCA-074, ¶ 20, 129
N.M. 413, 9 P.3d 657 (stating that determining what issues may be decided by the
state personnel board under the applicable statutory scheme presents a question of
law). 	“When 	reviewing 	a 	statute, 	[appellate 	courts] 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.” Schuster, 2012-NMSC-025, ¶ 9 (internal quotation marks and citation
omitted).
{9} 	A person whose license is revoked under the Implied Consent Act may contest

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the revocation by requesting a hearing within ten days after receiving the notice of
revocation. Section 66-8-112(B). Section 66-8-112(E) provides that the hearing “shall
be limited” to consideration of five issues. See id. (“The hearing shall be limited to the
issues: (1) whether the law enforcement officer had reasonable grounds to believe that
the person had been driving a motor vehicle within this state while under the influence
of intoxicating liquor or drugs; (2) whether the person was arrested; (3) whether this
hearing is held no later than ninety days after notice of revocation; and either (4)
whether: (a) the person refused to submit to a test upon request of the law enforcement
officer; and (b) the law enforcement officer advised that the failure to submit to a test
could result in revocation of the person’s privilege to drive; or (5) whether: (a) the
chemical test was administered pursuant to the provisions of the Implied Consent Act;
and (b) the test results indicated an alcohol concentration in the person’s blood or
breath of eight one hundredths or more if the person is twenty-one years of age or
older, four one hundredths or more if the person is driving a commercial motor vehicle
or two one hundredths or more if the person is less than twenty-one years of age”).
Sections 66-8-112(F) and (G) provide that the revocation may be sustained only if the
hearing officer makes an affirmative finding as to each issue. A person adversely
affected by a decision of MVD may then seek review in the district court. Section 66-
8-112(H).

1We also note here that whether a driver requests a timely hearing is not
included in the five issues that may be considered by a hearing officer under Sections
66-8-112(E) and (F).
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{10} 	As discussed above, the district court relied upon Maso in arriving at its ruling.
In Maso, the driver conceded that he received the notice of revocation, but he failed
to make a timely request for a hearing. 2004-NMCA-025, ¶ 1. MVD denied his
request for a hearing. Id. ¶ 5; see § 66-8-112(B) (“Failure to request a hearing within
ten days shall result in forfeiture of the person’s right to a hearing.”). The driver
appealed to the district court asserting that, because the notice was in English, and he
only understood Spanish, the notice did not comport with due process, and he should
have been granted a hearing, notwithstanding his lack of timeliness. Maso, 2004-
NMCA-025, ¶¶ 1, 6. The district court rejected the driver’s due process argument, and
this Court granted the driver’s request for certiorari review of the district court
decision. Id. ¶ 6. We concluded that, because Section 66-8-112(E) provides that the
hearing “shall be limited” to the consideration of specific issues, and the driver’s
argument that due process required the notice of revocation to be given to him in
Spanish is not included in those issues, MVD had no jurisdiction to consider the
driver’s argument. Maso, 2004-NMCA-025, ¶ 12.1 We additionally concluded that
because MVD had no jurisdiction to decide the issue raised by the driver, the district
court had no appellate jurisdiction to decide the issue. Id. ¶ 13; see Nesbit v. City of

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Albuquerque, 1977-NMSC-107, ¶ 10, 91 N.M. 455, 575 P.2d 1340 (concluding that
a district court has no jurisdiction to consider an issue on appeal from an
administrative agency that decided the issue without jurisdiction to do so).
{11} 	However, we also noted in Maso that the district court had authority to consider
the driver’s due process argument under its original jurisdiction. 2004-NMCA-025,
¶ 14. Invoking logic and principles of judicial economy, we construed the driver’s
appeal to the district court as in the nature of a petition for writ of mandamus, and the
appeal before us as an appeal from the denial of a petition for writ of mandamus. Id.
¶ 15. We then affirmed the district court on the merits, concluding that due process
does not require that written notice of revocation be given to a Spanish-speaking
driver in Spanish. Id. ¶¶ 18-21. On certiorari, our Supreme Court affirmed the merits
of the due process issue without addressing any of the procedural or jurisdictional
issues we had decided. Maso, 2004-NMSC-028, ¶¶ 9, 13-15.
{12} 	Driver and MVD both ask us to consider the applicability of Schuster, 2012-
NMSC-025. One of the questions that must be affirmatively answered before MVD
can revoke a driver’s license under Section 66-8-112(E)(2) is whether “the person was
arrested.” Id. In Schuster, the issue before our Supreme Court was whether the
Legislature intended a finding that a driver was “arrested” to include a finding that the
driver’s arrest was constitutional. 2012-NMSC-025, ¶ 15. Our Supreme Court

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answered the question in the affirmative, holding, “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.” Schuster, 2012-NMSC-025, ¶ 18. It therefore concluded that “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.” Id. The Court
recognized that to conclude otherwise, that the Implied Consent Act allows an
unconstitutional arrest to result in the revocation of a driver’s license, would call into
question the constitutionality of the Implied Consent Act. Id. ¶¶ 17-18.
{13} 	Referring to our decision in Maso, the driver in Schuster also argued that the
district court must consider the constitutionality of an arrest under its original
jurisdiction and not for substantial evidence under its appellate jurisdiction. Schuster,
2012-NMSC-025, ¶ 20. Our Supreme Court disagreed and held that because “MVD
must rule on the constitutionality of an arrest” before revoking a driver’s license under
the Implied Consent Act, Maso was not controlling. Schuster, 2012-NMSC-025, ¶¶
20, 22. Significantly, the Court noted that 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.” Schuster, 2012-NMSC-
025, ¶ 21.

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{14} 	Both parties argue that Schuster is controlling in this case, and we agree. Prior
to revoking Driver’s license, Kircher was required to affirmatively answer whether
Driver “refused to submit to a test upon request” and whether Deputy Foster “advised
that the failure to submit to a test could result in revocation of [Driver’s] privilege to
drive[.]” Section 66-8-112(E)(4)(a), (b). Driver specifically argued that because his
primary language is Spanish, due process required that Deputy Foster give him the
implied consent advisory in Spanish to ensure that Driver understood the advisory and
validly refused to submit to the test.
{15} 	In Schuster, our Supreme Court concluded that MVD was both authorized and
required to answer constitutional questions arising from the language of Section 66-8-
112(E)(2). 2012-NMSC-025, ¶ 19. We see no need to depart from that rationale. A
driver’s license is an “important, protectible right,” Stevens v. N.M.Transp. Dep’t,
1987-NMCA-095, ¶ 12, 106 N.M. 198, 740 P.2d 1182, subject to due process
protections. Maso v. N.M. Taxation & Revenue Dep’t, 2004-NMSC-028, ¶ 10, 136
N.M. 161, 96 P.3d 286 (“Due process requires notice and an opportunity for a hearing
before the State can suspend or revoke a person’s driver’s license.”). It appears an
open question whether due process requires that a non-English speaking driver fully
understand the implications of his or her refusal to submit to a breath- or blood-
alcohol test upon request. In accordance with Schuster, we conclude that MVD must

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answer this constitutional question in determining whether it can answer the questions
posed by Section 66-8-112(E)(4) in the affirmative. Following MVD’s ruling on the
matter, the district court must, on appeal, hear and decide the question in its appellate
capacity and not under its original jurisdiction. Schuster, 2012-NMSC-025, ¶ 22.
{16} 	Whether the district court is acting under its original jurisdiction in mandamus
or its appellate capacity, it has very real consequences. When the district court sits in
its appellate capacity, Section 66-8-112(H) directs that it is “to determine only
whether reasonable grounds exist for revocation [of the driver’s license] based on the
record of the administrative proceeding.” In its appellate capacity, the standard of
review that the district court applies is: (1) whether MVD acted fraudulently,
arbitrarily, or capriciously; (2) whether MVD’s decision is supported by substantial
evidence; (3) whether MVD’s action is outside the scope of its authority; or (4)
whether MVD’s action was otherwise not in accordance with law. Rule 1-074(R). On
the other hand, “[m]andamus lies only . . . where, on a given state of facts, [a] public
officer has a clear legal duty to perform the act and there is no other plain, speedy, and
adequate remedy in the ordinary course of the law.” Mimbres Valley Irrigation Co.
v. Salopek, 2006-NMCA-093, ¶ 11, 140 N.M. 168, 140 P.3d 1117. “The writ applies
only to ministerial duties and it will not lie when the matter has been entrusted to the
judgment or discretion of the public officer.” Id. Thus, very different considerations

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and standards apply as to how a district court is to treat the law and facts before it,
depending on whether the district court is acting in its appellate jurisdiction or in its
original mandamus jurisdiction.
{17} 	There are also additional consequences. When the district court sits in its
appellate capacity and issues a final order in a MVD driver’s license revocation case
such as this, there is no right to a further appeal in this Court. Rather, a timely petition
for a writ of certiorari must be filed in this Court, which is granted or denied at the
discretion of the Court. Rule 1-074(V); Rule 12-505 NMRA. Driver did not file a
petition for certiorari, and even if we could consider Driver’s docketing statement as
such a petition, it was not timely, and we would not have jurisdiction. See Bransford-
Wakefield v. N.M. Taxation & Revenue Dep’t, 2012-NMCA-025, ¶¶ 9, 16, 18, 274
P.3d 122 (stating that “the timely filing of a petition for a writ of certiorari” within
thirty days of the district court’s final order to be reviewed “is a mandatory
precondition” to our exercise of jurisdiction, and while a docketing statement can
substitute for a petition for writ of certiorari, it must also be filed within thirty days
of the order to be reviewed). On the other hand, when the district court acts under its
original jurisdiction, an aggrieved party has a right to appeal to this Court by filing a
timely notice of appeal in the district court and a timely docketing statement in this
Court. Rule 12-202 NMRA; Rule 12-208 NMRA. In fact, due to the confusion caused

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by the district court’s action, and whether Driver was required to file a petition for
writ of certiorari or had properly filed a notice of appeal, we issued an order to show
cause why this appeal should not be dismissed. See Smith v. City of Santa Fe, 2007-
NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300 (stating that an appellate court may
raise a question of jurisdiction on its own motion, and lack of jurisdiction at any stage
must be resolved before proceeding further). The parties’ responses to the order to
show cause provided us with valuable insights in disposing of this appeal.
{18} 	We 	therefore 	conclude 	that 	the 	district 	court 	erred 	in 	converting 	the
administrative appeal before it into a petition for writ of mandamus arising under its
original jurisdiction and that the order of the district court must therefore be reversed.
We remand the case to the district court for consideration in its appellate capacity.
CONCLUSION
{19} 	The order of the district court is reversed, and the case is remanded to the
district court for further proceedings in accordance with this opinion.
{20} 	IT IS SO ORDERED.
___________________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

JONATHANB. SUTIN, Judge

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