December 9, 2019- State of New Mexico v. Warren Brand Franklin, No. A-1-CA-36905

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________________	2
Filing Date: December 9, 2019	3
No. A-1-CA-36905	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
WARREN BRAND FRANKLIN	8
a/k/a WARREN B. FRANKLIN,	9
Defendant-Appellant.	10
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY	11
Drew D. Tatum, District Judge	12
Hector H. Balderas, Attorney General	13
Santa Fe, NM	14
John Kloss, Assistant Attorney General	15
Albuquerque, NM	16
for Appellee	17
Gary C. Mitchell, P.C.	18
Gary C. Mitchell	19
Ruidoso, NM	20
for Appellant	21
Court of Appeals of New Mexico
Filed 12/9/2019 10:34 AM

OPINION	1
ATTREP, Judge.	2
{1} 	Defendant 	appeals 	his 	conviction 	for 	driving 	under 	the 	influence 	of	3
intoxicating liquor or drugs (DUI), contrary to NMSA 1978, Section 66-8-102(A)	4
(2010, amended 2016), raising, among other issues, the voluntariness of his consent	5
to a blood draw in light of the United States Supreme Court’s decision in Birchfield	6
v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016). Birchfield held that a blood	7
draw was not a valid search incident to a DUI arrest and motorists cannot be said to	8
impliedly consent to such a search “on pain of committing a criminal offense.” Id.	9
at 2184-86. As for a motorist who consents to a blood test after threat of heightened	10
criminal penalties—commonplace in many states’ implied consent laws at the	11
time—the Supreme Court held that the voluntariness of such consent must be	12
determined from the totality of the circumstances, including the inaccurate threat.	13
Id. at 2186.	14
{2} 	In light of Birchfield, our courts have held that “[i]mplied consent laws can	15
no longer provide that a driver impliedly consents to a blood draw” and a defendant	16
can no longer be subjected to criminal penalties for refusing to submit to a	17
warrantless blood draw. State v. Vargas, 2017-NMSC-029, ¶ 22, 404 P.3d 416; see	18
also State v. Storey, 2018-NMCA-009, ¶ 1, 410 P.3d 256. In this case, Defendant	19
did not refuse but instead consented to the requested blood test. Our courts have yet	20

2
to analyze Birchfield under such circumstances, and we thus take this opportunity to	1
formally adopt the portion of Birchfield that addresses these circumstances. The	2
district court below failed to properly consider and apply Birchfield in denying	3
Defendant’s motion to suppress his blood evidence. We thus reverse and remand for	4
the district court to redetermine its ruling in light of Birchfield and this opinion and	5
for any further proceedings consistent therewith. As for Defendant’s remaining	6
arguments, we conclude they are without merit.	7
BACKGROUND	8
{3} 	The following facts were established at trial. Defendant was involved in an	9
accident with another vehicle while driving his truck one afternoon in Curry County,	10
New Mexico. Defendant was driving a dually-trailer combination and slowed to	11
make a left turn when another driver operating a tractor-trailer attempted to pass him	12
in the left lane. The tractor-trailer struck the driver’s side of Defendant’s truck and	13
Defendant was ejected from his truck. Both drivers sustained injuries; Defendant	14
suffered a broken back, ribs, and lacerations. The first law enforcement officer who	15
responded to the scene of the accident discovered a pack of beer in Defendant’s	16
truck—one bottle was open, four were unopened, and several were unaccounted for.	17
Defendant testified that the beers were in the truck from the day before, he had not	18
drunk any while driving, and he had not drunk anything within an hour-and-a-half	19

3
before the accident. Defendant, however, admitted he had a beer or two with lunch	1
earlier that day.	2
{4} 	Defendant was initially transported by ambulance from the scene of the	3
accident to a hospital in Clovis for treatment for his injuries before being airlifted to	4
a hospital in Lubbock, Texas. Deputy Antonio Salazar, of the Curry County Sheriff’s	5
Office, was present at the Clovis hospital. Pursuant to the Implied Consent Act,	6
NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2019), Deputy Salazar	7
advised Defendant that his consent for a breath or blood test was being requested	8
and that Deputy Salazar was choosing a blood test. Deputy Salazar testified that he	9
read Defendant an implied consent advisory from a card. The parties dispute whether	10
Deputy Salazar advised Defendant that his failure to consent could cause Defendant	11
to face enhanced criminal penalties, as provided in Section 66-8-102(D)(3) and (E).	12
At first, Deputy Salazar testified that he read the enhanced penalties from the card,	13
but then on redirect was more equivocal. Defendant testified that, while being treated	14
at the hospital, Deputy Salazar asked for a blood test and then read the implied	15
consent advisory. Defendant stated that he initially refused the blood test and	16
requested a breath test; however, Deputy Salazar told him that he did not have a	17
breathalyzer available and that a blood test was “the only thing that they could do.”	18
Defendant testified that he submitted to the blood test after Deputy Salazar	19
threatened him with enhanced criminal penalties.	20

4
{5} 	Deputy Salazar oversaw the administration of the blood draw and provided to	1
the blood drawer a kit approved by the Scientific Laboratory Division of the	2
Department of Health (SLD). Deputy Salazar testified that he witnessed a nurse or	3
technician employed by the hospital draw Defendant’s blood and ensured the kit	4
would be submitted to SLD. Steve Schenick, the SLD analyst who analyzed	5
Defendant’s blood sample, was certified by the district court as an expert in drug	6
analysis. Mr. Schenick testified that the result of the blood test was a blood alcohol	7
content (BAC) of .08 grams of alcohol per 100 milliliters of blood. The State did not	8
seek to admit the blood test report or related documents.	9
{6} 	The State initially filed charges against Defendant in magistrate court. A jury	10
was selected and a trial date was set approximately three weeks later. Before the trial	11
commenced and prior to swearing in the jury, the State moved to dismiss the matter	12
without prejudice, over Defendant’s objection. The State thereafter refiled the case	13
in district court. In the district court, Defendant filed a combined motion to dismiss	14
and motion to suppress. In support of his motion to dismiss, Defendant argued that	15
the proceedings in district court violated his right to be free from double jeopardy	16
since a jury had been selected in magistrate court. In support of his motion to	17
suppress, Defendant argued that the blood test results should be suppressed pursuant	18
to Birchfield.	19

5
{7} 	At the suppression hearing, the district court took no evidence. Defendant	1
argued for suppression based on the premise that the officer threatened Defendant	2
with criminal penalties to obtain his consent to a blood test and that this violated	3
Birchfield. The State responded that the penalty portion of the implied consent	4
advisory was not read, and, regardless of whether Birchfield applies, exigent	5
circumstances justified the warrantless search. The district court took the matter	6
under advisement and then issued a written order denying the motion without	7
explanation. Defense counsel renewed the motion to suppress at the beginning of the	8
trial and prior to any evidence being taken. The district court again denied the	9
motion, explaining only that, based on current New Mexico case law, the court could	10
not grant the motion. The matter proceeded to a bench trial, and, based on the	11
evidence outlined above, Defendant was convicted of DUI.	12
DISCUSSION	13
{8} 	Defendant argues the district court erred in denying his motion to suppress	14
because, under Birchfield, his consent to the blood test was not voluntary. Defendant	15
additionally contends that the State failed to lay a proper foundation for the	16
admission of testimony regarding the blood draw, the State violated his right to	17
confrontation, and the State failed to establish a nexus between BAC and time of	18
driving. Defendant finally asserts the district court erred in denying his motion to	19

6
dismiss on double jeopardy grounds. We reverse and remand based on Defendant’s	1
Birchfield argument. We reject Defendant’s remaining claims of error.	2
I. 	Harmless Error	3
{9} 	Since the vast majority of Defendant’s claims of error relate to the admission	4
of the blood test results, as an initial matter, we dispose of the State’s contention that	5
even if the blood test results were admitted in error, such error was harmless. The	6
State maintains the admission of the blood test results was harmless because ample	7
evidence supported the finding that Defendant drove impaired, and the district court	8
need not have relied on the testimony concerning the blood test results in finding	9
Defendant guilty of DUI. As support for its position, the State cites State v.	10
Hernandez, 1999-NMCA-105, 127 N.M 769, 987 P.2d 1156, where we stated “the	11
erroneous admission of evidence in a bench trial is harmless unless it appears that	12
the judge must have relied upon the improper evidence in rendering a decision.” Id.	13
¶ 22.	14
{10} 	Although Defendant was convicted under the “impaired to the slightest	15
degree” standard, rather than a per se standard of DUI, see § 66-8-102(A), (C)(1),	16
we previously have held that BAC remains relevant in cases where DUI is based on	17
a defendant’s impairment to the slightest degree. See, e.g., State v. Garnenez, 2015-	18
NMCA-022, ¶ 34, 344 P.3d 1054 (“BAC results are relevant under the [impaired] to	19
the slightest degree theory to show that a defendant had alcohol in his or her system	20

7
and, regardless of the numerical BAC, tended to show that the defendant’s poor	1
driving was a result of drinking liquor.” (alterations, omission, internal quotation	2
marks, and citation omitted)). In the present case, there is no indication that the	3
district court did not consider testimony concerning the blood test results. To the	4
contrary, when announcing its verdict, the district court expressly stated the blood	5
test results of .08 were “concerning.” In addition, two of the State’s witnesses,	6
Deputy Salazar and Mr. Schenick, testified in detail regarding the process to obtain	7
a blood test, procedures for analyzing the sample, and the blood test results. Under	8
these circumstances, it is not possible to conclude the district court did not rely on	9
the blood test results. See Hernandez, 1999-NMCA-105, ¶¶ 22-23. Accordingly, any	10
error that may exist with respect to the admission of the blood test results was not	11
harmless.	12
II. 	Birchfield and Warrantless Blood Tests	13
{11} 	Relying on Birchfield, Defendant argues that individuals can no longer be	14
deemed to have consented to a blood test “on pain of committing a criminal offense,”	15
and that the implied consent advisory Deputy Salazar read to Defendant was	16
unconstitutional because it informed Defendant of the possibility for enhanced	17
criminal penalties if he refused to consent to a blood test. 136 S. Ct. at 2186.	18
Defendant therefore asserts that, because his consent to the blood test was premised	19
on an inaccurate threat of heightened criminal penalties for refusal, the consent was	20

8
not voluntary. The State argues there was no error under Birchfield 	because	1
Defendant consented to the blood test without threat of heightened criminal	2
penalties, and, in any event, exigent circumstances permitted taking Defendant’s	3
blood without a warrant.	4
{12} 	As explained later, we do not delve into the factual disputes inherent in the	5
parties’ arguments. We instead limit our inquiry to a legal matter—the validity of a	6
search premised on a motorist’s consent to a blood test on threat of criminal penalty	7
in light of Birchfield—which we conduct de novo. See State v. Vargas, 2017-NMSC-	8
029, ¶ 16, 404 P.3d 416 (reviewing a defendant’s Fourth Amendment argument	9
founded on Birchfield de novo).1 In Birchfield, the United States Supreme Court	10
held that a warrantless breath test may lawfully be administered upon arrest for drunk	11
driving, but “the search incident to arrest doctrine does not justify the warrantless	12
taking of a blood sample.” 136 S. Ct. at 2185. The Court then analyzed whether	13
implied consent laws that impose criminal penalties on a refusal to submit to such a	14
test could provide a legal basis for obtaining a warrantless blood sample. Id. at 2185-	15
86. Answering in the negative, the Court “conclude[d] that motorists cannot be	16
1 In addition to making a search and seizure argument, Defendant invokes the
due process clause. Defendant, however, does not develop his due process argument
and we decline to consider it further. See State v. Duttle, 2017-NMCA-001, ¶ 15,
387 P.3d 885 (“For this Court to rule on an inadequately briefed constitutional issue
would essentially require it to do the work on behalf of [the d]efendant.”); see also
State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031, 1037 (explaining that
appellate courts do not review unclear or undeveloped arguments).

9
deemed to have consented to submit to a blood test on pain of committing a criminal	1
offense.” Id. at 2186.	2
{13} 	Our Supreme Court subsequently has recognized that “Birchfield prohibits	3
punishment under implied consent laws based on an arrestee’s refusal to consent to	4
and submit to a warrantless blood test.” Vargas, 2017-NMSC-029, ¶ 3. Further,	5
“[i]mplied consent laws can no longer provide that a driver impliedly consents to a	6
blood draw.” Id. ¶ 22. Thus, the law in New Mexico is clear that warrantless blood	7
draws are not permitted in the absence of either (1) valid consent or (2) probable	8
cause to require the blood test in addition to exigent circumstances. See id. ¶¶ 1, 3,	9
19 (holding that “when a subject does not consent to such a search, officers must	10
obtain a warrant or establish probable cause and exigent circumstances to justify a	11
warrantless search”); see also Gallegos v. Vernier, 2019-NMCA-020, ¶ 25, ___ P.3d	12
___ (“A warrantless blood test, performed without consent, is presumptively	13
unreasonable unless the state actors involved had probable cause and exigent	14
circumstances sufficient to justify it.” (alteration, internal quotation marks, and	15
citation omitted)), cert. denied, 2019-NMCERT-___ (No. S-1-SC-37431, Feb. 18,	16
2019).	17
{14} 	In the present case, it is undisputed that Defendant’s blood was drawn without	18
a 	warrant. 	The 	State 	nevertheless 	argues 	that 	the 	blood 	draw 	withstands	19

10
constitutional scrutiny because Defendant validly consented to the blood test or,	1
alternatively, exigent circumstances combined with probable cause existed.	2
A. 	Consent	3
{15} 	Since Birchfield, our courts have not yet had the opportunity to examine a case	4
where, as here, a defendant consents to a blood test, but argues the consent was not	5
voluntary because it was given only in response to inaccurate threats of heightened	6
criminal penalties for refusal. Birchfield involved three consolidated matters, one of	7
which addressed the scenario at issue in this case. In pertinent part, petitioner	8
Beylund submitted to a blood test after police told him that the law required his	9
submission. 136 S. Ct. at 2186. The arresting officer read Beylund an implied	10
consent advisory, which informed him that refusing a blood test was itself a crime.	11
Id. at 2172. Beylund argued his consent was coerced by this warning. Id. The	12
Supreme Court noted that the state supreme court’s determination that Beylund	13
voluntarily consented to the test was based “on the erroneous assumption that the	14
[s]tate could permissibly compel both blood and breath tests.” Id. at 2186. Following	15
its conclusion that the law cannot impose criminal penalties for the refusal to submit	16
to a blood test, the Supreme Court remanded for consideration, based on the totality	17
of the circumstances, of whether Beylund’s consent was voluntary “given the partial	18
inaccuracy of the officer’s advisory.” Id. (citing Schneckloth v. Bustamonte, 412	19
U.S. 218, 227 (1973)).	20

11
{16} 	In New Mexico, we likewise examine the totality of the circumstances to	1
determine whether a defendant’s consent is voluntary. See State v. Davis, 2013-	2
NMSC-028, ¶ 13, 304 P.3d 10 (“The [s]tate has the burden of proving that, under	3
the totality of the circumstances, consent to search was given freely and voluntarily.”	4
(citing Schneckloth, 412 U.S. at 227)). Our courts have been clear that “[t]he	5
voluntariness of consent is a factual question” for the district court. Id.; see also	6
Gallegos, 2019-NMCA-020, ¶ 23 (“[W]hether [the motorist] consented to the blood	7
draw is a question of fact that must be determined by the district court in the first	8
instance.”); State v. Flores, 1996-NMCA-059, ¶ 20, 122 N.M. 84, 920 P.2d 1038	9
(“The voluntariness of a consent to search is initially a question of fact for the trial	10
court.”). We thus hold that when a defendant raises Birchfield, asserting his or her	11
consent to a blood test was involuntary due to a partially inaccurate advisory, the	12
district court must assess the voluntariness of the consent in light of the totality of	13
the circumstances, including the improper implied consent advisory. 136 S. Ct. at	14
2186.	15
{17} 	In this case, the district court twice summarily denied Defendant’s motion to	16
suppress without taking any evidence, apparently believing Birchfield simply did not	17
apply. As a result, not only did the district court make no findings regarding the issue	18
of voluntariness, but it made no findings regarding the preliminary matter of whether	19
Deputy Salazar informed Defendant that he faced heightened criminal penalties	20

12
should he refuse a blood draw. The parties on appeal dispute whether the trial	1
testimony demonstrates this fact and urge us to rule accordingly. We decline to do	2
so because our role is not to find facts the district court neglected to make in the first	3
instance. And while we often rely on presumptions in resolving factual disputes in	4
our review of suppression rulings, see State v. Chacon, 2018-NMCA-065, ¶ 19, 429	5
P.3d 347 (“[W]hen the evidence is conflicting, we indulge in all reasonable	6
presumptions in favor of the district court’s ruling, disregarding all evidence and	7
inferences to the contrary, and when evidence is uncontradicted, we presume the	8
district court believed the uncontradicted evidence, unless it indicates to the contrary	9
on the record.”), cert. denied, 2018-NMCERT-___ (No. S-1-SC-37232, Oct. 11,	10
2018), we decline to do so in this instance—where the district court did not consider	11
any evidence and appears to have ruled on purely legal grounds.	12
{18} 	We thus remand to the district court. See State v. Paul T., 1999-NMSC-037,	13
¶ 29, 128 N.M. 360, 993 P.2d 74 (remanding to the district court to determine	14
voluntariness where the district court did not previously base its suppression ruling	15
on consent). The district court should determine whether the criminal penalty portion	16
of the implied consent advisory was read to Defendant prior to his consent. See State	17
v. Baldonado, 1992-NMCA-140, ¶ 11, 115 N.M. 106, 847 P.2d 751 (remanding to	18
the district court for redetermination of suppression motion where it was unknown	19
what facts the district court found). And, if so, the district court should determine	20

13
whether Defendant’s consent, under the totality of the circumstances, was voluntary	1
“given the partial inaccuracy of the officer’s advisory.” Birchfield, 136 S. Ct. at	2
2186; see also Davis, 2013-NMSC-028, ¶ 10 (“The voluntariness of consent is a	3
factual question in which the trial court must weigh the evidence and decide if it is	4
sufficient to clearly and convincingly establish that the consent was voluntary.”	5
(internal quotation marks and citation omitted)).	6
B. 	Exigent Circumstances	7
{19} 	With regard to the State’s additional argument that probable cause to require	8
the blood test, combined with exigent circumstances, justified the warrantless blood	9
draw, we again are unable to discern from the district court’s ruling whether it	10
considered the applicability of this exception to the warrant requirement. Indeed,	11
nothing in the district court’s written order or later oral denial indicates a resolution	12
of this question. Much like the voluntariness of consent, the question of exigency	13
heavily depends on the particular facts and circumstances of a case. See Gallegos,	14
2019-NMCA-020, ¶ 25 (providing that “[i]n the context of exigent circumstances	15
that would support a warrantless blood draw in a case involving suspected [DUI],	16
there are no categorical rules—such as the dissipation of blood-alcohol evidence—	17
establishing per se exigency” and that “such cases require a finely tuned approach	18
and demand that the courts evaluate each case of alleged exigency based on its own	19

14
facts 	and 	circumstances” 	(alterations, 	internal 	quotation 	marks, 	and 	citation	1
omitted)).	2
{20} 	We therefore leave it to the district court on remand to determine, as	3
necessary, 	whether 	exigent 	circumstances 	and 	probable 	cause 	justified 	the	4
warrantless blood draw. See id. If the district court determines either (1) Defendant	5
validly consented to the blood draw, or (2) probable cause combined with exigent	6
circumstances were present, the warrantless blood draw would be justified. See	7
Birchfield, 136 S. Ct. at 2186 (leaving open the possibility that the petitioner’s valid	8
consent would justify a warrantless blood draw); Vargas, 2017-NMSC-029, ¶ 19	9
(“[W]hen a subject does not consent to [a blood draw], officers must obtain a warrant	10
or establish probable cause and exigent circumstances to justify a warrantless	11
search.”). Otherwise, the blood evidence must be suppressed.	12
III. 	Defendant’s Other Objections to the Blood Test	13
14
{21} 	Although we reverse and remand on the Birchfield issue, in the event the	15
district court determines, on remand, that Defendant’s consent to the blood test was	16
valid or there existed probable cause and exigent circumstances otherwise justifying	17
the blood draw, the evidence will not be suppressed. We therefore address	18
Defendant’s remaining arguments concerning the blood test.	19

15
A. 	Foundation	1
{22} 	Defendant argues that the evidence was insufficient to establish his blood was	2
drawn by an authorized individual, as required by NMSA 1978, Section 66-8-103	3
(1978), the individual who performed the blood draw was required to testify, and the	4
district court erred in admitting testimony concerning the blood test and blood results	5
over his evidentiary objections. “We review the admission of evidence under an	6
abuse of discretion standard and will not reverse in the absence of a clear abuse.”	7
State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72.	8
{23} 	Section 66-8-103 mandates that “[o]nly a physician, licensed professional or	9
practical nurse or laboratory technician or technologist employed by a hospital or	10
physician shall withdraw blood from any person in the performance of a blood-	11
alcohol test.” See § 66-8-109(A) (“Only the persons authorized by Section 66-8-103	12
. . . shall withdraw blood from any person for the purpose of determining its alcohol	13
or drug content.”). The State bears the burden of proving Defendant’s blood was	14
drawn by an authorized individual. State v. Garcia, 2016-NMCA-044, ¶ 23, 370	15
P.3d 791.	16
{24} 	Defendant claims that the individual who performed the blood draw was	17
required to testify. This, however, is not a requirement under the law. To the	18
contrary, we previously have held testimony similar to that elicited here is sufficient	19
to demonstrate “the propriety of the blood draw and the qualification of the blood	20

16
drawer.” See State v. Nez, 2010-NMCA-092, ¶¶ 13-14, 148 N.M. 914, 242 P.3d 481.	1
In Nez, an officer who witnessed the blood draw testified he observed a nurse draw	2
the defendant’s blood using a SLD-approved kit. Id. ¶ 13. We held that the officer’s	3
testimony concerning the blood drawer’s identity and qualifications and the manner	4
in which the blood was drawn was sufficient to satisfy the state’s foundational	5
burden and to establish the qualifications of the blood drawer. Id. ¶ 14.	6
{25} 	Similarly here, Deputy Salazar, who was present at the hospital during the	7
blood draw, testified that he provided hospital staff a blood draw kit approved by	8
SLD, ensured the person who drew Defendant’s blood was certified by the hospital	9
to draw blood, and saw the blood draw performed by a person he knew was either a	10
technician or a certified nurse employed by the hospital. After the blood draw,	11
Deputy Salazar ensured the vials were sealed, initialed them, filled out and signed	12
the form that accompanied the kit, and submitted the kit to an evidence custodian for	13
delivery to SLD. Under these circumstances, we conclude the district court did not	14
abuse its discretion in finding Deputy Salazar’s testimony sufficient to satisfy the	15
State’s foundational burden and to establish the blood drawer was qualified under	16
Section 66-8-103.	17
B. 	Right to Confrontation	18
{26} 	Defendant additionally claims that “[f]ailure to call expert witnesses regarding	19
the blood/alcohol examination would be a denial of the right to cross-examine	20

17
witnesses[.]” “Under the Confrontation Clause, U.S. Const. amend. VI, an out-of-	1
court statement that is both testimonial and offered to prove the truth of the matter	2
asserted may not be admitted unless the declarant is unavailable and the defendant	3
had a prior opportunity to cross-examine the declarant.” State v. Smith, 2016-NMSC-	4
007, ¶ 42, 367 P.3d 420 (internal quotation marks and citation omitted). “We review	5
de novo a challenge made pursuant to the Confrontation Clause.” State v. Gallegos,	6
2016-NMCA-076, ¶ 44, 387 P.3d 296.	7
{27} 	The reasons Defendant believes his right to confrontation was violated are not	8
clear to us. Notably, Defendant has not identified any out-of-court testimonial	9
statements that would give rise to a confrontation violation. And we are under no	10
obligation to develop or review this unclear argument. See Guerra, 2012-NMSC-	11
014, ¶ 21 (explaining that appellate courts do not review unclear or undeveloped	12
arguments); 	Duttle, 	2017-NMCA-001, 	¶ 	15 	(“For 	this 	Court 	to 	rule 	on 	an	13
inadequately briefed constitutional issue would essentially require it to do the work	14
on behalf of [the d]efendant.”). To the extent Defendant argues the nurse who	15
conducted the blood draw should have been called, that issue has been addressed	16
above and furthermore does not present a confrontation problem. See Nez, 2010-	17
NMCA-092, ¶¶ 13-14, 16 (concluding that an officer’s testimony regarding the	18
nurse’s blood draw of the defendant and the officer’s subsequent mailing of the	19
sample to SLD, satisfied foundational requirements and that, once the state had	20

18
satisfied the foundation requirements, “the need to cross-examine the blood drawer	1
is reduced to questions of the chain of custody,” which “does not provide grounds	2
for a confrontation objection to the admissibility of a blood-alcohol report”); see also	3
State v. Martinez, 2007-NMSC-025, ¶ 25, 141 N.M. 713, 160 P.3d 894 (“The	4
protections afforded by the Confrontation Clause do not extend to preliminary	5
questions of fact.”).	6
C. 	Nexus Between BAC and Time of Driving	7
{28} 	Defendant additionally contends the evidence did not sufficiently demonstrate	8
the BAC obtained from the blood draw accurately represented Defendant’s BAC at	9
the time of driving. This, Defendant argues, made the results of the blood test	10
inadmissible as evidence of Defendant’s BAC at the time of driving. Defendant,	11
however, has not developed this argument or even demonstrated whether the State	12
did in fact seek to establish that the test results showed Defendant’s BAC at the time	13
of driving. See Guerra, 2012-NMSC-014, ¶ 21.	14
{29} 	It is possible the State merely sought to admit the testimony regarding	15
Defendant’s BAC as evidence of the alcohol concentration at the time of the test,	16
rather than at the time of driving. See § 66-8-110(E) (stating that if a chemical test	17
“is administered more than three hours after the person was driving a vehicle, the	18
test result may be introduced as evidence of the alcohol concentration in the person’s	19
blood or breath at the time of the test and the trier of fact shall determine what weight	20

19
to give the test result for the purpose of determining a violation of Section 66-8-102”	1
(emphasis added)). Moreover, Defendant was convicted under Section 66-8-102(A),	2
which requires only that the State prove Defendant was impaired to the slightest	3
degree while driving, not that his BAC exceeded a certain level within a certain time	4
of driving. To the extent Defendant’s argument is premised on the notion that the	5
State must have proven Defendant’s BAC was at or above a certain level at the time	6
of driving, we conclude the law does not support this contention. See § 66-8-102(A)	7
(criminalizing driving under the influence of intoxicating liquor); see also § 66-8-	8
102(C)(1) (criminalizing driving if BAC is .08 or more “within three hours of	9
driving” (emphasis added)).	10
IV. 	Double Jeopardy	11
{30} 	Finally, Defendant argues, as he did below, that the State was barred from	12
bringing this case in district court on double jeopardy grounds because the State	13
refiled the case in district court after a jury was selected, but not sworn, in magistrate	14
court. We generally apply a de novo standard of review to the constitutional question	15
of whether there has been a double jeopardy violation. State v. Rodriguez, 2006-	16
NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737. “[W]here factual issues are	17
intertwined with the double jeopardy analysis, . . . the [district] court’s fact	18
determinations [are subject to a] deferential substantial evidence standard of	19
review.” Id. Jeopardy attaches when a defendant is “put to trial before the trier of the	20

20
facts, whether the trier be a jury or a judge.” State v. Davis, 1998-NMCA-148, ¶ 14,	1
126 N.M. 297, 968 P.2d 808 (internal quotation marks and citation omitted). For “a	2
jury trial, jeopardy attaches at the point when a jury is impaneled and sworn to try	3
the case.” State v. Nunez, 2000-NMSC-013, ¶ 28, 129 N.M. 63, 2 P.3d 264.	4
{31} 	The district court found the jury in magistrate court was never sworn to hear	5
evidence. 	Accordingly, 	jeopardy 	never 	attached 	during 	the 	magistrate 	court	6
proceedings, and double jeopardy presented no bar to the proceedings in district	7
court. While Defendant admits the jury was never sworn in, he nevertheless	8
maintains the State’s tactics were unfair and not in good faith. Defendant provides	9
no legal authority in support of his argument that the district court proceedings	10
should have been barred based on principles of unfairness and bad faith. And we	11
“will not consider an issue if no authority is cited in support of the issue and . . .	12
given no cited authority, we assume no such authority exists.” State v. Vigil-Giron,	13
2014-NMCA-069, ¶ 60, 327 P.3d 1129. Further, to the extent Defendant asks us to	14
change well-settled law regarding the point at which jeopardy attaches, we decline	15
to do so.	16
CONCLUSION	17
{32} 	For the foregoing reasons, we reverse the district court’s order denying	18
Defendant’s motion to suppress and remand for the district court to redetermine its	19

21
ruling in light of Birchfield and this opinion and for any further proceedings	1
consistent therewith.	2
{33} 	IT IS SO ORDERED.	3
______________________________	4
JENNIFER L. ATTREP	5
WE CONCUR:	6
___________________________	7
MEGAN P. DUFFY, Judge	8
___________________________________	9
BRIANA H. ZAMORA, Judge	10