A-1-CA-35785 | Omnilex

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Court of Appeals of New Mexico
Filed 11/19/2018 11:31 AM
Mark Reynolds

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

Opinion Number : Filed 11/19/2018 11:31 AM
Filing Date: November 19, 2018 hE. L
Mark Reynolds
No. A-1-CA-35785
DEBRA GALLEGOS,
Plaintiff-Appellant,
V.
NEW MEXICO STATE POLICE

OFFICER CHARLES J. VERNIER,

Defendant-Appellee.

2] APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY
3} Emilio J. Chavez, District Judge

Kennedy Kennedy & Ives
Joseph P. Kennedy

Adam C. Flores
Albuquerque, NM

for Appellant
Jarmie & Associates
Mark D. Jarmie

Las Cruces, NM

for Appellee

OPINION
HANISEE, Judge.
(3 Plaintiff Debra Gallegos brought civil rights claims against Defendant State
Police Officer Charles Vernier for violations of her right under the United States
Constitution to be free from unreasonable seizure and unlawful arrest. The district
court granted Defendant’s motion for summary judgment after concluding that
Defendant “should be entitled to qualified immunity because [D]efendant
reasonably believed that he had probable cause to arrest [P]laintiff at the time of the
arrest[,]” and dismissed Plaintiff's case with prejudice. Concluding that the district
court erred in dismissing all of Plaintiff's claims, we affirm in part, reverse in part,
and remand for further proceedings.
BACKGROUND
{2} On May 4, 2013, at approximately two o’clock in the afternoon, Plaintiff was
stopped at a DWI checkpoint while traveling on Interstate 25 in Northern New
Mexico, Upon making contact with Plaintiff, Defendant “observed that Plaintiff was
emitting a ‘strong odor of alcoholic beverage’ and had ‘bloodshot[,] watery eyes.’ ”
Plaintiff denied drinking that day but acknowledged that she had been drinking the
previous night. She informed Defendant that she “had bad allergies” and “had been
diagnosed with dry eyes by [her] doctor[,]” a condition for which she used eye drops.

She agreed to submit to standardized field sobriety tests (SFSTs), on which

Defendant contended Plaintiff “performed ... poorly.” Specifically, Defendant
described Plaintiff as being “unable to remain in the starting position and ha[ving]
to move her foot and raise her arms for balance” during the walk-and-turn test,
failing to have “smooth pursuit in both eyes” during the horizontal gaze nystagmus
test, and putting her foot down during the one-leg-stand test. Defendant arrested
Plaintiff for a first-offense DWI, a misdemeanor, and transported her to the local
detention center, where Plaintiff agreed to submit to a breathalyzer test.

{33 | Approximately thirty minutes after the initial stop, Plaintiff completed a first
breathalyzer test, which recorded a result of .000 breath alcohol content (BrAC).
Plaintiff submitted to a second breathalyzer test, which also recorded a result of .000
BrAC. Defendant then transported Plaintiff to a nearby medical center where
Defendant ordered hospital medical personnel to draw Plaintiffs blood to test it for
drugs. According to Defendant, he did so “[b]ased on Plaintiff's poor performance
on the [SFSTs].” When the blood test results were not immediately available,
Defendant transported Plaintiff back to the detention center, where she was booked
for DWI. The blood test later came back negative for both alcohol and drugs, and
the DWI charge was later dismissed for failure to prosecute.

Procedural History

(4; Plaintiff filed a complaint under 42 U.S.C. §§ 1983 and 1988 (2012) to

recover damages for alleged deprivations of her civil rights resulting from

Defendant’s actions on May 4, 2013. Plaintiff brought two claims in her action. The
first was for “unreasonable seizure” based on Defendant’s (1) “seizing her for the
crime of DWI and transporting her to a hospital after she blew a .000 [on] two breath
tests[,]” (2) “causing her blood to be taken from her person without probable cause
to believe that she was under the influence of drugs and without a judicially
sanctioned warrant to search[,]” and (3) “transporting her back to the jail and
booking her on the crime of DWI without probable cause to believe that Plaintiff
was under the influence of liquor or alcohol and without a judicially sanctioned
warrant.” Plaintiff's second claim was for “unlawful arrest” based on Defendant
“arresting her for DWI after she blew a .000 on a breath test” because “Defendant
did not have probable cause to believe that she had been driving while under the
influence of alcohol or drugs.”

5} Defendant moved for summary judgment, arguing that he is entitled to
qualified immunity. Characterizing Plaintiff's case as “an arrest case,” Defendant
contended that “the proper constitutional provision to analyze Plaintiff's claim is the
Fourth Amendment and its probable cause standard.” Defendant argued that “[t]he
existence of probable cause or arguable probable cause is . . . a complete defense to
a claim for unreasonable seizure and unlawful arrest brought pursuant to 42 []U.S.C.
[§] 1983.” Defendant thus concluded that “there was no violation of the Fourth

Amendment because there was probable cause or arguable probable cause for

Plaintiff's arrest” based on “Plaintiff's poor performance of the SFTSs and
[Defendant’s] observation[s].” Defendant’s motion for summary judgment did not
address that aspect of Plaintiff's claim alleging unreasonable seizure based on the
warrantless blood draw that Defendant ordered.

{6} In her response, Plaintiff argued that the facts, taken in the light most
favorable to her, established that Defendant had violated her clearly established
Fourth Amendment rights in three ways. Plaintiff first argued that Defendant
violated her rights “by arresting her and detaining her after two breath alcohol tests
showed that [Plaintiff] was not under the influence of alcohol[.]” Plaintiff next
argued that Defendant violated her rights by “failing to release her after two breath
alcohol tests showed that [Plaintiff] was not under the influence of alcohol[.]”
Plaintiff lastly argued that Defendant violated her rights by “subjecting her to a
warrantless blood test unsupported by exigent circumstances[.]” Other than
disputing that “there was an odor of alcohol emanating from her vehicle[,]” Plaintiff
did not dispute Defendant’s statements of undisputed facts, including Defendant’s
characterization of her performance on the SFSTs. She did, however, offer certain
clarifications and explanations, such as that “the wind was blowing strongly along
the highway, which caused her skirt to lift up during the tests” and resulted in her

being “distracted and embarrassed” during the SFSTs.

{7} In response to Plaintiff's argument regarding the warrantless blood draw,
Defendant argued for the first time in his reply that Plaintiff “consented to the blood
draw[,]” thereby rendering the blood draw constitutional. According to Defendant,
Plaintiff “did not and could not contest this fact” and “it is undisputed that [Plaintiff]
consented.”

{8} The district court granted Defendant’s motion for summary judgment. In its
order, the district court stated, “The determinative issue is whether Defendant
Vernier had probable cause to arrest [P]laintiff for driving while under the
influence.” The district court concluded that ‘[u]nder the facts presented to the
[c]ourt[,] Defendant Vernier should be entitled to qualified immunity because [he]
reasonably believed that he had probable cause to arrest [P]laintiff at the time of the
arrest.” The district court’s order contained no findings or conclusions related to
Plaintiff's unreasonable seizure claim based on the warrantless blood draw and
whether Plaintiff consented to the blood draw. From the district court’s subsequent
order dismissing Plaintiff's case with prejudice, Plaintiff appealed.

DISCUSSION

Standard of Review

(93 We review de novo a district court’s grant of summary judgment. Benavidez
v. Shutiva, 2015-NMCA-065, § 8, 350 P.3d 1234. Likewise, we review de novo the

applicability of qualified immunity, which is a question of law. Starko, Inc. v.

Gallegos, 2006-NMCA-085, 911, 140 N.M. 136, 140 P.3d 1085. Ordinarily,
summary judgment may only be granted in New Mexico when, viewing the evidence
in the light most favorable to the nonmoving part, “there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.” Romero v.
Philip Morris Inc., 2010-NMSC-035, J 7, 148 N.M. 713, 242 P.3d 280 (internal
quotation marks and citation omitted). However, courts “review summary judgment
decisions involving a qualified immunity defense somewhat differently than other
summary judgment rulings.” Nelson v. McMullen, 207 F.3d 1202, 1205-06 (10th
Cir. 2000) (internal quotation marks and citation omitted). Because of “the unique
nature of qualified immunity, ... [w]hen a defendant raises the qualified immunity
defense on summary judgment, the burden shifts to the plaintiff to meet a strict two-
part test.” Nelson, 207 F.3d at 1206; cf Romero, 2010-NMSC-035, 10 (explaining
in the context of a motion for summary judgment not based on qualified immunity
that “[i]n New Mexico, summary judgment may be proper when the moving party
has met its initial burden of establishing a prima facie case for summary judgment”).
“First, the plaintiff must demonstrate that the defendant’s actions violated a
constitutional or statutory right. Second, the plaintiff must show that the
constitutional or statutory rights the defendant allegedly violated were clearly
established at the time of the conduct at issue.” Ne/son, 207 F.3d at 1206 (internal

quotation marks and citation omitted). A plaintiffs failure to meet either of these

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burdens entitles the defendant to qualified immunity and a grant of summary
judgment. See Benavidez, 2015-NMCA-065, 9§ 11-14 (affirming the district court’s
dismissal of the plaintiff's “unreasonable seizure” claim where the facts established
that the defendant officer had probable cause to arrest the plaintiff, meaning there
was no violation of the plaintiff's constitutional rights); Cockrell v. Bd. of Regents
of N.M. State Univ., 1999-NMCA-073, 98, 127 N.M. 478, 983 P.2d 427 (“The
immunity obtains unless it can be shown as a matter of clearly established law that
an objectively reasonable official would have known that rights were being
violated.”).

{10} Thus, a court reviewing a grant of summary judgment based on qualified
immunity must consider whether the undisputed facts viewed in the light most
favorable to the nonmovant, coupled with those facts adduced by the plaintiff,
provide “any evidentiary support for finding a possible violation of law.” Benavidez,
2015-NMCA-065, 48 (internal quotation marks and citation omitted). If not,
summary judgment for the defendant is proper. See Starko, Inc., 2006-NMCA-085,
qq 21, 30 (expressing “doubt that [the p]laintiffs have even alleged a ‘deprivation’ ”
and, therefore, reversing the district court’s denial of qualified immunity and
remanding for entry to summary judgment in favor of the defendants). If, on the
other hand, the plaintiff has proven a violation of a constitutionally protected right,

we next ask “whether the right in question was ‘clearly established’ at the time of

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the violation.” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam). If it was,

then granting summary judgment based on qualified immunity is improper. Cf

Chavez v. Bd. of Cty. Comm'rs of Curry Cty., 2001-NMCA-065, § 30, 130 N.M.

753, 31 P.3d 1027 (concluding that the defendant officers were “not entitled to

qualified immunity” where “the relevant law was clearly established”).

Alternatively, “if it is clear that the relevant legal issue was not clearly established

at the time, we [need] not reach the first issue” of whether a violation occurred at all.

Benavidez, 2015-NMCA-065, § 8.

I. Defendant Is Entitled to Qualified Immunity on (1) Plaintiff’s “Unlawful
Arrest” Claim, and (2) Plaintiff’s “Unreasonable Seizure” Claim to the
Extent It Is Based On Defendant’s Failure to Release Her Following the
Breath Tests

{11} In opposing Defendant’s motion for summary judgment, Plaintiff first

attempted to prove a violation of law based on what she described as Defendant

“arresting her and detaining her after two breath alcohol tests showed that [she] was

not under the influence of alcohol[.]” (Emphasis added.) As an initial matter, we

clarify this ambiguous, somewhat misleading allegation by noting that it was
undisputed that Defendant placed Plaintiff under arrest prior to the breathalyzer
tests. To the extent Plaintiff attempts to characterize the facts as suggesting
otherwise—i.e., that Plaintiff was not placed under arrest until after the breathalyzer

tests—the record provides no support for such an interpretation. Indeed, at the

hearing on Defendant’s motion, the district court expressly sought clarification

regarding when Defendant placed Plaintiff under arrest and was told that, per
Defendant’s affidavit, Plaintiff was placed under arrest “following the failed sobriety
tests[,]” i.e., prior to the breathalyzer tests. Plaintiff did not challenge that
representation. This clarification is important because the question of whether
Defendant violated Plaintiff's Fourth Amendment right to be free from “unlawful
arrest”—Plaintiffs second claim, which is grounded in her contention that
“Defendant did not have probable cause to believe that she had been driving while
under the influence of alcohol or drugs’—hinges on whether Defendant had
probable cause to arrest Plaintiff at the time he arrested her. See State v. Ochoa,
2004-NMSC-023, 4 9, 135 N.M. 781, 93 P.3d 1286 (“Probable cause exists when
the facts and circumstances warrant a belief that the accused had committed an
offense, or is committing an offense. More specifically, probable cause must be
evaluated in relation to the circumstances as they would have appeared to a prudent,
cautious and trained police officer.” (internal quotation marks and citation omitted)).
A. Defendant Had Probable Cause to Arrest Plaintiff

{12} Here, the district court concluded that Defendant had probable cause to arrest
Plaintiff and transport her to the detention center for breath testing based on (1)
Defendant’s “interaction” with Plaintiff, (2) Plaintiff's poor performance on the
SFSTs, (3) the odor of alcohol on Plaintiff, and (4) Plaintiff's admission to having

drunk six beers the night before. The record also supplies the additional undisputed

fact that Plaintiff had “bloodshot[,] watery eyes” when Defendant first came into
contact with her. The district court’s conclusion that probable cause existed to arrest
Plaintiff following the SFSTs is supported by New Mexico law. See State v.
Granillo-Macias, 2008-NMCA-021, § 12, 143 N.M. 455, 176 P.3d 1187 (holding
that an odor of alcohol emanating from the defendant, his lack of balance at the
vehicle, and his failure to satisfactorily perform field sobriety tests supported an
objectively reasonable belief that the defendant had been driving while intoxicated,
and thus constituted probable cause to arrest); State v. Jones, 1998-NMCA-076,
q 10, 125 N.M. 556, 964 P.2d 117 (concluding that the officer had probable cause to
arrest for DWI when the officer noticed bloodshot, watery eyes, slurred speech, and
a strong odor of alcohol, when the defendant admitted to having drunk two beers,
swayed when he was talking to the officer, and failed the field sobriety tests); see
also State v. Sanchez, 2001-NMCA-109, 412, 131 N.M. 355, 36 P.3d 446
(explaining that “[eJach case stands on its own facts; there is no one set of
circumstances required for probable cause’’).

133}. However, that determination alone—while important—is not, as the district
court erroneously believed it to be, dispositive of all of Plaintiff's claims. While
probable cause may have supported Defendant’s initial decision to place Plaintiff
under arrest, it does not necessarily or automatically render constitutional any and

all actions by Defendant, nor does it supply a basis to immunize Defendant for

separately alleged, later-occurring constitutional violations. Plaintiff's first claim—
that she was unreasonably seized by Defendant over an extended period of time and
at certain points at which Plaintiff contends her ongoing seizure became
constitutionally unreasonable—is not necessarily foreclosed by the district court’s
determination that no violation occurred upon Plaintiff's initial arrest. We next
consider that aspect of Plaintiff's “unreasonable seizure” claim based on
Defendant’s continued detention of her following her separate breath tests that
yielded .000 BrAC results.

B. Defendant’s Failure to Release Plaintiff Following the Two Breath Tests
Did Not Violate Clearly Established Law

414} Plaintiff argued to the district court that probable cause to arrest her for DWI
“dissipated when breath testing showed conclusively that Plaintiff had no breath
alcohol.” She thus argued that Defendant “had a duty to release” her following the
breathalyzer tests and that his failure to do so violated a clearly established Fourth
Amendment right. Plaintiff's argument fails for two reasons.

{15} First, Plaintiff's argument ignores that “dissipation” as to probable cause to
suspect Plaintiff of driving under the influence of “intoxicating liquor” neither
automatically nor necessarily dispelled probable cause to suspect that Plaintiff was
driving under the influence of drugs. In New Mexico, it is a crime for a person to
drive a vehicle while under the influence of either “intoxicating liquor” or “any drug

to a degree that renders the person incapable of safely driving a vehicle.” NMSA
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1978, § 66-8-102(A), (B) (2016). The undisputed facts in the record establish that
Defendant “placed Plaintiff under arrest for Driving under the Influence of an
Intoxicating Liquor or Drugs.” (Emphasis added.) Importantly, Plaintiff has not
challenged whether Defendant had probable cause or arguable probable cause to
initially arrest Plaintiff for driving while under the influence of drugs, specifically.
Instead, she argues that in order for Defendant to continue to detain her for and
ultimately charge her with driving while under the influence following her breath
tests, Defendant “had a duty to conduct [a drug recognition evaluation] to re-
establish probable cause of intoxication.” Because Plaintiff cites no authority to
support this contention, we assume none exists. See /n re Adoption of Doe, 1984-
NMSC-024, § 2, 100 N.M. 764, 676 P.2d 1329 (“We assume where arguments in
briefs are unsupported by cited authority, counsel after diligent search, was unable
to find any supporting authority.”). Critically, because it is Plaintiff's burden to show
that the clearly established law would have put Defendant on notice that his failure
to “re-establish probable cause of intoxication” following Plaintiff's negative breath
tests violated Plaintiff's rights, her failure to cite a single on-point case compels the
conclusion that she has failed to meet her burden.

{16} Second and similarly, Plaintiff fails to establish that Defendant’s failure to
immediately release Plaintiff following her breathalyzer tests violated a clearly

established right protected under the Fourth Amendment. While it is generally

recognized that “[a] person may not be arrested, or must be released from arrest, if
previously established probable cause has dissipated[,]” United States v. Ortiz-
Hernandez, 427 F.3d 567, 574 (9th Cir. 2005), such a rule does not compel the
conclusion that Defendant’s failure to release Plaintiff under the facts of this case
violated a right “that is sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Mullenix v. Luna, 136 S.Ct.
305, 308 (2015) (per curiam) (internal quotation marks and citation omitted). The
lone case Plaintiff perfunctorily cites, McConney v. City of Houston, 863 F.2d 1180
(Sth Cir. 1989), to support the general proposition that officers have an ongoing duty
to assess their initial probable cause determination does not suggest, let alone clearly
establish, that an officer faced with the same facts as Defendant would be violating
an arrestee’s constitutional rights by not immediately releasing the arrestee
following breath tests of .000 BrAC.

4173 McConney involved a § 1983 claim by a plaintiff who was arrested for public
intoxication and detained for four hours in accordance with a city regulation despite
the fact that the booking officer “knew [the plaintiff] was sober[.]” McConney, 863
F.2d at 1182-83. Aside from being distinguishable on the facts, McConney involved
a discrete legal question, different than that presented here: whether the City of
Houston’s “four hour detention policy” deprived McConney of his constitutional

rights. /d. at 1184. The court concluded as a general matter that “a person may

constitutionally be detained for at least four or five hours following a lawful
warrantless arrest for public intoxication without the responsible officers having any
affirmative duty during that time to inquire further as to whether the person is
intoxicated[.]” /d. at 1185. The court, however, limited its holding, explaining that
“once a responsible officer actually does ascertain beyond reasonable doubt that one
who has been so arrested is in fact not intoxicated, the arrestee should be released.”
Id. The court ultimately declined to reverse judgment against the city, which was
premised on a jury’s determination that McConney had been “detained even after
the appropriate officials had determined that he clearly was no longer intoxicated.”
Id. at 1185, 1188. McConney is thus distinguishable.

(183 Plaintiff has failed to demonstrate that existing precedent placed the
constitutional question of an officer’s affirmative duty to release an arrestee—
arrested on suspicion of driving while under the influence of intoxicating liquor or
drugs—following negative breath tests beyond debate. See Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011) (explaining that to conclude that a right is “clearly established”
does not “require a case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate”); Panagoulakos v. Yazzie,
741 F.3d 1126, 1129-31 (10th Cir. 2013) (rejecting a post-arrest “duty to release”
argument where the court concluded that “the clearly established weight of authority

from other courts” had not “imposed a duty to release under [the] circumstances

[presented]” (internal quotation marks and citation omitted)). We, therefore,
conclude that Plaintiff has not met her burden to overcome Defendant’s qualified
immunity claim because she has not shown that the right arguably violated was
clearly established.

Il. Whether Defendant Is Entitled to Qualified Immunity on Plaintiff's
“Unreasonable Seizure” Claim Based on the Warrantless Blood Draw

(193 Plaintiff next argues that Defendant violated her right to be free from
unreasonable seizure “by subjecting her to a warrantless blood test unsupported by
exigent circumstances[,]” a right she contends was clearly established as of May 4,
2013. Defendant contends that Plaintiff consented to the blood draw, thereby
rendering it constitutional despite the absence of a warrant. Because it is potentially
dispositive and informs later portions of our analysis, we first address Defendant’s
contention that Plaintiff consented to the blood draw. See Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973) (“It is ... well settled that one of the
specifically established exceptions to the requirements of both a warrant and
probable cause is a search that is conducted pursuant to consent.”); Amundsen v.
Jones, 533 F.3d 1192, 1194, 1201 (10th Cir. 2008) (explaining that “a blood test
conducted pursuant to valid consent does not violate the Fourth Amendment[,]” and
reversing the district court’s denial of summary judgment on qualified immunity in
a § 1983 case where the record established that the plaintiff voluntarily consented to

a blood test).
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A. Defendant Failed to Establish That Plaintiff Consented to the Blood
Draw

{20} “Whether a search is consensual is a question of fact to be determined by the
totality of the circumstances.” Marshall v. Columbia Lea Reg'l Hosp. (Marshall 1),
345 F.3d 1157, 1177 (10th Cir. 2003). To be valid, consent to search must be given
freely and voluntarily. See State v. Anderson, 1988-NMCA-033, § 7, 107 N.M. 165,
754 P.2d 542. “The determination of voluntariness involves a three-tiered analysis:
(1) there must be clear and positive testimony that the consent was specific and
unequivocal; (2) the consent must be given without duress or coercion; and (3) the
first two factors are to be viewed in light of the presumption that disfavors the waiver
of constitutional rights.” /d. The party claiming that consent to search was given
must establish by clear and convincing evidence that the consent was given
voluntarily. Cf State v. Villanueva, 1990-NMCA-051, § 22, 110 N.M. 359, 796 P.2d
252 (“The state bears the burden of proof to establish that a consent to search was
given voluntarily by clear and convincing evidence.”).

(21) As the party moving for summary judgment on Plaintiff's complaint,
Defendant bore the burden of showing that he was entitled to judgment as a matter

of law on each of her claims.' See Rule 1-056(C) NMRA. Thus, to defeat Plaintiff's

' We analyze Defendant’s argument based on Plaintiffs alleged consent to
the blood draw under standard summary judgment rules because a defense based on
consent is analytically distinct from a qualified-immunity-based defense. See
Marshall 1, 345 F.3d at 1176-77, n.12 (explaining that in that case, the defendants

claim of a constitutional violation related to the warrantless blood draw on the theory
of consent, Defendant bore the burden of showing that there was no genuine issue
as to any material fact regarding a valid consent to search. The record exposes that
Defendant failed to meet his burden.

22} In his motion for summary judgment, the only statement of undisputed fact
regarding consent to testing that Defendant set forth was that after placing Plaintiff
under arrest, he “read [Plaintiff] New Mexico’s Implied Consent Law, and she
agreed to be tested.” Defendant set forth no other facts on which the district court
could find that there was “clear and positive testimony” that Plaintiff specifically
and unequivocally consented to a blood draw. Anderson, 1988-NMCA-033, { 7.
Defendant contends that by failing to dispute the fact that she “agreed to be tested[,]”
Plaintiff failed “to establish a genuine issue of material fact per Rule 1-056,”
meaning that Plaintiff “conceded the consent issue.” Plaintiff argues the issue of
consent “was never litigated.” We agree with Plaintiff.

23} The fact that Defendant’s motion for summary judgment contains neither
specific facts pertaining to whether Plaintiff consented to the blood test nor any
argument whatsoever regarding Plaintiff's warrantless blood draw claim evinces that

Defendant either failed to appreciate the need or chose not to address the warrantless

had not “raised or briefed qualified immunity” on appeal because they had prevailed
in the district court on the “alternative ground” of consent-to-search, and analyzing
the question of consent under the traditional summary judgment standard).

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blood draw claim, generally, and the question of consent, specifically. Moreover,
whether Plaintiff consented to the blood draw is a question of fact that must be
determined by the district court in the first instance. See State v. Davis, 2013-NMSC-
028, | 10, 304 P.3d 10 (“The voluntariness of consent is a factual question in which
the trial court must weigh the evidence and decide if it is sufficient to clearly and
convincingly establish that the consent was voluntary.” (internal quotation marks
and citation omitted)). Here, the district court entered no findings regarding whether
Plaintiff consented to the blood draw because—following the flawed approach
advanced by Defendant in his motion—it mistakenly believed that its finding

regarding probable cause to arrest was “determinative” of all of Plaintiff's claims.

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24; Based on the foregoing, we agree with Plaintiff that Defendant failed to
' establish that Plaintiff unequivocally and specifically consented to the blood test and

that the issue of consent remains in dispute. Because Defendant cannot rely, at this

juncture, on a defense that the blood draw was consensual, we next consider whether

Defendant violated a clearly established right when he ordered hospital staff to seize |
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Plaintiffs blood without a warrant.
B. Defendant’s Warrantless Blood Draw of Plaintiff Following Her Arrest

for Misdemeanor DWI Violated a Clearly Established Right That Existed
at the Time

OW toa —

1. Defendant Violated Plaintiff's Fourth Amendment Right When He
Ordered Her Blood to Be Drawn Without A Warrant and Absent Exigent
Circumstances

253} “[A]| warrantless blood test, performed without consent, is presumptively

unreasonable unless the state actors involved had probable cause and exigent

circumstances sufficient to justify it.’ Marshall I, 345 F.3d at 1172 (emphasis
added). The reason for this is that “[t]he interests in human dignity and privacy which
the Fourth Amendment protects forbid . . . intrusions [beyond the body’s surface] on
the mere chance that desired evidence may be obtained.” Schmerber v. California,

384 U.S. 757, 769-70 (1966). “In the absence of a clear indication that in fact such

evidence will be found, these fundamental human interests require law officers to

suffer the risk that such evidence may disappear unless there is an immediate
search.” /d. The “exigent circumstances” exception to the warrant requirement

“applies when the exigencies of the situation make the needs of law enforcement so

compelling that a warrantless search is objectively reasonable under the Fourth

Amendment.” Missouri v. McNeely, 569 U.S. 141, 148-49 (2013) (internal quotation

marks and citation omitted). In the context of exigent circumstances that would

support a warrantless blood draw in a case involving suspected DWI, there are no
categorical rules—such as the dissipation of blood-alcohol evidence—establishing

per se exigency. See id. at 147, 152. Rather, such cases require a “finely tuned

approach” and “demand{[] that [the courts] evaluate each case of alleged exigency

Loe)

based on its own facts and circumstances.” /d. at 150 (internal quotation marks and
citation omitted). In the complete absence of exigent circumstances, however, a
warrantless blood draw is considered unreasonable and, therefore, unconstitutional.
See Schmerber, 384 U.S. at 770 (“Search warrants are ordinarily required for
searches of dwellings, and absent an emergency, no less could be required where
intrusions into the human body are concerned.”).

{26} Here, Defendant identified no exigent circumstance whatsoever supporting
the warrantless blood draw. His motion for summary judgment set forth no facts
even tending to suggest that exigent circumstances existed that would justify seizing
Plaintiff's blood under the circumstances, and he developed no argument at all
regarding Plaintiff's specific allegation of a constitutional violation based on the
unreasonable seizure of her blood. Indeed, Defendant singularly argued in his
motion for summary judgment that “[t]he existence of probable cause or arguable
probable cause is also a complete defense to a claim for unreasonable seizure and

unlawful arrest[,]” wholly failing to appreciate that a warrantless blood draw
requires both probable cause and exigent circumstances. Only after Plaintiff argued
in her response to Defendant’s motion for summary judgment that a warrantless

blood draw requires exigent circumstances to be considered reasonable, did

Defendant then contend that Plaintiff consented to the blood draw, thereby rendering

1s)

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the warrantless blood draw constitutional even in the absence of exigent
circumstances.

(27; In the absence of Defendant even suggesting the presence of an exigent
circumstance that may have justified the warrantless blood draw, we conclude that
Plaintiff demonstrated that Defendant violated Plaintiff's constitutional right to be
free from unreasonable search and seizure by ordering hospital staff to draw
Plaintiff's blood without a warrant. The question, then, is whether that right was
clearly established as of May 4, 2013.

2. The Right to Be Free From a Warrantless Blood Draw in the Absence of
Exigent Circumstances Was Clearly Established

28} “Ordinarily, in order for the law to be clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly established weight
of authority from other courts must have found the law to be as the plaintiff
maintains.” Medina v. City & Cty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992).
As previously noted, the law, generally, regarding the unconstitutionality of a
warrantless blood draw—absent consent or both probable cause and exigent
circumstances—in a DWI case had been clearly established under United States
Supreme Court law as of at least 1966. See Schmerber, 384 U.S. at 770 (“Search
warrants are ordinarily required for searches of dwellings, and absent an emergency,
no less could be required where intrusions into the human body are concerned.”);

see also Birchfield v. North Dakota, 136 S.Ct. 2160, 2173 (2016) (explaining that

the United States Supreme Court had “previously had occasion to examine whether
[the exigent circumstances] exception [to the warrant requirement] applies in drunk-
driving investigations” and noting that Schmerber “held that drunk driving may
present” an exigent circumstance rendering constitutional a warrantless blood
draw)’. It was also clear well prior to 2013 that “[s]tate actors administering a blood
test without warrant or consent may be subject to suit under § 1983.” Marshall J,
345 F.3d at 1171. And just prior to the incident giving rise to Plaintiff's claim in this
case, the United States Supreme Court, in fact, reiterated that “[1]n those drunk-
driving investigations where police officers can reasonably obtain a warrant before
a blood sample can be drawn without significantly undermining the efficacy of the
search, the Fourth Amendment mandates that they do so.” McNeely, 569 U.S. at

152.> More importantly, the law, specifically and under facts similar to those present

> To be clear, we recognize that Birchfield was decided after the events giving
rise to Plaintiff's suit, and we do not rely on it in concluding that the right violated,
here, was clearly established as of the time of the warrantless blood draw in this case.
Indeed, Birchfield involved a different exception to the warrant requirement—the
search-incident-to-arrest doctrine—that is not at issue in this case. See id. at 2173-
74 (discussing Schmerber and McNeely and noting that those cases involved the
exigent-circumstances exception whereas the cases before the Birchfield court
involved the question of “how the search-incident-to-arrest doctrine applies to breath
and blood tests incident to [drunk driving] arrests”).

> Defendant points out that McNeely “was decided seventeen days before
Plaintiff approached a DWI checkpoint in Colfax County.” To the extent Defendant
suggests that the nascent nature of the McNeely decision somehow diminishes its
value in this analysis, we reject any such contention for two reasons. First, McNeely
did not establish a new right of which Defendant may not have been aware, thus
arguably making it unfair to make him stand suit and potentially hold him liable for

here, was clearly established as of at least 2003, when Marshall [—an on-point Tenth
Circuit case—was decided, and certainly no later than 2007, when Marshall v.
Columbia Regional Hospital (Marshall Il), 474 F.3d 733 (10th Cir. 2007), was
decided and expressly held the specific right here at issue to be clearly established.
We explain.

29} In Marshall I, the court reversed the federal district court’s grant of summary
judgment to police officers against whom the plaintiff had brought various § 1983
claims, including a Fourth Amendment warrantless blood test claim. Marshall I, 345
F.3d at 1159. In that case, the plaintiff was stopped in Hobbs, New Mexico for

various traffic violations, arrested on suspicion of driving under the influence, and

| taken to the local jail where he submitted to sobriety tests and two breathalyzer tests.

Id. at 1161. On the sobriety tests, the plaintiff “had difficulty completing the
recitation of the alphabet (the ‘ABC test’)[,]” and there was “conflicting testimony

about whether the horizontal gaze stymosis test was administered, and whether [the

a violation thereof. McNeely merely held that the exigent circumstance allowed in
Schmerber to render reasonable a warrantless blood draw in that case could not be
relied on as a “per se exigency that justifies an exception to the Fourth Amendment’s
warrant requirement for nonconsensual blood testing in all drunk-driving cases.”
McNeely, 569 U.S. at 144. Second, in light of the fact that in this case Plaintiff was
arrested at a planned DWI checkpoint, set up by the New Mexico State Police, it is
particularly unavailing to suggest that the officers involved may not have been aware
of their constitutional obligations in connection with that checkpoint. Cf City of Las
Cruces v. Betancourt, 1987-NMCA-039, § 10, 105 N.M. 655, 735 P.2d 1161
(explaining that “the reasonableness of any roadblock will be very closely
scrutinized”).
23

—

| plaintiff] passed the finger-number test.” /d. The plaintiff “passed” both breathalyzer
tests. /d. An officer then transported the plaintiff to a hospital for blood testing. /d.

The plaintiff told the nurse who took his blood, “I’m not going to resist, but you

4) don’t have my consent oral or written.” /d. (internal quotation marks omitted). Upon

the defendants’ motion for summary judgment, the district court “concluded that the

6| warrantless blood test was constitutional under the Supreme Court’s ruling in

Schmerber[.|” Marshall I, 345 F.3d at 1164. The district court found that based on
the plaintiff's performance on the field sobriety test, “there was probable cause to
justify the blood test, since passing the breathalyzer test did not rule out the presence
.of other drugs in his bloodstream.” /d. (internal quotation marks and citation
omitted). It, thus, rejected the plaintiff's Fourth Amendment claim. /d.

30} The Marshall I court addressed whether “administration of a blood test
without a warrant was in violation of the Fourth Amendment.” /d. at 1171. After
assuming, based on the district court’s ruling, that the plaintiffs ‘mixed
performance on the field sobriety tests provided probable cause for the blood
tests[,]” the court turned to the “harder question” of “whether there were exigent

circumstances.” /d. at 1172. The court engaged in a lengthy discussion of the

I!
t

“exigent circumstances” requirement set forth in Schmerber vis-a-vis NMSA 1978,

i
|
i
|
|

| Section 66-8-111 (2005), of New Mexico’s Implied Consent Act (NMICA), NMSA
1978, §§ 66-8-105 to -112 (1978, as amended through 2015). See Marshall 1, 345

F.3d at 1172-74 The court noted that Section 66-8-111 provides that a warrant may
only issue to compel chemical testing, including blood testing, in two circumstances:
(1) upon probable cause “to believe that the person has driven a motor vehicle while
under the influence of alcohol or a controlled substance, thereby causing the death
or great bodily injury of another person,” or (2) upon probable cause “to believe that
the person has committed a felony while under the influence of alcohol or a
controlled substance.” Section 66-8-111(A); see Marshall I, 345 F.3d at 1173-74.
Accordingly, the court reasoned, “[w]hen a crime is not important enough to justify
a warranted search, it is not important enough to justify an ‘exigent circumstances’
search.” Marshall I, 345 F.3d at 1173. The court noted that the record contained no
evidence that the plaintiff had either caused death or great bodily injury, or that the
blood test would produce material evidence in a felony prosecution because by all
accounts, the plaintiff was charged with a first DWI offense, a petty misdemeanor.
Id. at 1174. Concluding that exigent circumstances did not exist under the facts of
that case—meaning the warrantless blood draw was unreasonable in violation of the
Fourth Amendment—the court reversed the grant of summary judgment and
remanded for further proceedings. /d. at 1176, 1181.

31} It is difficult to imagine a case more instructive than Marshall I for purposes
of determining whether the law was clearly established as of 2013 that an officer in

New Mexico who orders a blood draw in a misdemeanor DWI case in the absence

of either a warrant, consent, or both probable cause and exigent circumstances
violates a person’s Fourth Amendment rights. The similarities—both factual and
legal—between the cases abound. First, like in Marshall I, Defendant’s probable
cause determination to support a blood draw consisted of nothing more than
Plaintiff's performance on the SFSTs. Second, Plaintiff had already passed two
breath tests before being subjected to blood testing. Third, Plaintiff was charged with
only a misdemeanor offense, meaning that under the plain language of Section 66-
8-111(A), Defendant could not have obtained a warrant to test Plaintiff's blood
under any circumstances. But most importantly and dispositive of the legal question
here at issue Is that like in Marshall I, Defendant failed to identify, let alone establish
the existence of, any exigent circumstances that would support a warrantless blood
draw in a misdemeanor DWI case.

{32} To the extent there remained any question after Marshall I regarding the
unconstitutionality of a warrantless nonconsensual blood draw in New Mexico in
cases where the person was arrested for misdemeanor DWI, Marshall II
unequivocally established that to be the law. In Marshall IJ, the court considered an
appeal by the defendant officers in Marshall I, who, on remand following Marshall
J, were found liable by a jury for violating the plaintiff's Fourth Amendment right
based on the warrantless blood test. Marshall I, 474 F.3d at 735. The officers argued

that “the district court erred when it denied their post-judgment motion for judgment

Loe)

as a matter of law based on qualified immunity.” /d. at 737. Specifically, the officers
contended that at the time they ordered the blood draw, “no clearly established law
precluded a warrantless nonconsensual blood test.” /d. The Marshall I] court flatly
rejected that contention. Reiterating and expanding upon Marshall I’s analysis of
Schmerber and the NMICA, the court concluded that (1) “the officers had fair
warning of [the] exigent circumstances requirement under federal law[,]” and (2) the
_ NMICA is “uniquely clear” regarding “whether or not a search or seizure conducted
in violation of state law would also infringe the Fourth Amendment.” Marshall I,
474 F.3d at 742, 743. The court—agreeing with the district court’s conclusion that
“it was objectively unreasonable for [the officers] to think they could lawfully give
‘this blood test in the absence of [the plaintiff's] consent”—stated, “it is difficult to
imagine how a competent officer could think it could make sense or be reasonable
to violate state law.” /d. at 746 (internal quotation marks and citation omitted).

{33} Defendant’s only attempt to distinguish Marshall I rests on his contention that

|
_ the plaintiff in Marshall I expressly refused to consent to the blood test whereas

Plaintiff, here, consented to the blood test. He contends that Schmerber and McNeely
also do not apply for the same reason: because those cases involved nonconsensual

searches unlike the consensual search he contends occurred here. However, for the

19! reasons already discussed, Defendant’s arguments based on a contention that |

Plaintiff consented to the blood test are unavailing because Defendant has not, in

—

fact, established that Plaintiff consented. In the absence of a factual distinction
regarding the issues of consent between this case and those cited, we conclude that
the violative nature of Defendant’s particular conduct here at issue was clearly
established and that he is, therefore, not entitled to qualified immunity on Plaintiff's
warrantless blood draw claim.

CONCLUSION

34} We affirm the district court’s grant of summary judgment to Defendant as to
Plaintiff's unlawful arrest claim. We reverse the district court’s grant of summary
Judgment to Defendant based on qualified immunity as to Plaintiff's unreasonable
seizure claim insofar as it is based on the warrantless blood draw and remand for

further proceedings in light of this opinion.

2 [WA ~—

J. MILES HANISEE, Judge

35} IT TS SO ORDERED.

WE CONCUR:

November 19, 2018- Debra Gallegos v. New Mexico State Police Officer Charles J. Vernier, No. A-1-CA-35785

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