September 28, 2017- State of New Mexico v. Julian Storey, No. A-1-CA-35013

OCR transcription for search; preserved printed pages are authoritative

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Filed

Court of Appeals of New Mexico
9/28/2017 9:42:37 AM

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ September 28, 2017

No. A-1-CA-35013

STATE OF NEW MEXICO,
Plaintiff-Appellee,

v.

JULIAN STOREY,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Brett R. Loveless, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

John Kloss, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Santa Fe, NM

Steven J. Forsberg, Assistant Appellate Defender
Albuquerque, NM

for Appellant

Ma

of the Clerk

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—_—

rk Reynolds

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OPINION

BOHNHOFF, Judge.

(3 Julian Storey (Defendant) was arrested in Albuquerque, New Mexico on
suspicion of driving under the influence of marijuana. Following a jury trial in
Bernalillo County metropolitan court, he was convicted of aggravated driving under
the influence of a drug (DUI), possession of drug paraphernalia, and failing to
maintain lane. The district court affirmed these convictions. On appeal to this Court,
Defendant raises five challenges to the aggravated DUI conviction: (1) the trial court
erred when it denied Defendant’s motion to strike three potential jurors for cause,
thus denying Defendant a fair trial; (2) there was insufficient evidence to support the
jury’s finding that Defendant was guilty of aggravated DUI; (3) the trial court erred
by denying Defendant’s motion for a mistrial due to the prosecutor’s comments
regarding the legal standard for DUI; (4) NMSA 1978, Section 66-8-102(D)(3)
(2016) is unconstitutional because it criminally punishes defendants for refusing to
submit to a warrantless blood draw; and (5) on the same constitutional grounds,
fundamental error occurred when the prosecutor commented during closing argument
on Defendant’s refusal to submit to the blood draw. Pursuant to the United States
Supreme Court’s holding in Birchfield v. North Dakota, _ U.S. _, 136 S. Ct.

2160 (2016), and following this Court’s ruling in State v. Vargas, 2017-NMCA-023,

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4 15, 389 P.3d 1080, cert. granted, 2017-NMCERT-___, (No. A-1-CA-33718, Feb.
14, 2017), we conclude that Section 66-8-102(D)(3) is unconstitutional under the
facts of this case. Pursuant to the Fourth and Fourteenth Amendments to the United
States Constitution, a state cannot criminally punish an individual for refusing to
submit to a warrantless blood draw. However, we also conclude that the constitutional
proscription announced in Birchfield does not extend to the introduction of evidence
of, or a prosecutor’s comment on, such refusal to consent. Thus, the trial court did not
err by allowing the prosecutor to comment during closing argument on Defendant’s
refusal to submit to a blood draw. We are not persuaded by Defendant’s remaining
arguments. We thus affirm in part and reverse in part, and remand for entry of
judgment and sentence for violation of the underlying DUI offense.
BACKGROUND

I. New Mexico’s Impaired Driving Laws

{23 Section 66-8-102(A) generally prohibits driving under the influence ofalcohol:
“Tt is unlawful for a person who is under the influence of intoxicating liquor to drive
a vehicle within this state.” “[U]nder the influence,” as that phrase is used in Section
66-8-102(A), means that “as a result of drinking liquor, the driver [is] less able to the
slightest degree, either mentally or physically, or both, to exercise the clear judgment

and steady hand necessary to handle a vehicle with safety.” (DWI).

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State v. Neal, 2008-NMCA-008, J 21, 143 N.M. 341, 176 P.3d 330 (alteration,
emphasis added) (internal quotation marks and citation omitted). Section 66-8-102(B)
generally prohibits driving under the influence of a drug: “It is unlawful for a person
who is under the influence of any drug to a degree that renders the person incapable
of safely driving a vehicle to drive a vehicle within this state.” (Emphasis added.)

43}. The New Mexico Implied Consent Act (the Act), NMSA 1978, §§ 66-8-105 to
-112 (1978, as amended through 2015), aids in the enforcement of Section 66-8-102.
The Act generally provides that any person who operates a motor vehicle within the
state is deemed to have consented to a breath or blood test if he or she is arrested on
suspicion of driving under the influence of intoxicating liquor or drugs. Section 66-8-
107(A); State v. Watchman, 1991-NMCA-010, 31, 111 N.M. 727, 809 P.2d 641,
overruled in part on other grounds by State v. Hosteen, 1996-NMCA-084, § 21, 122
N.M. 228, 923 P.2d 595. The subject may refuse to consent to the test, Section 66-8-
111(A), but the Act provides sanctions for refusing: revocation of the subject’s
driver’s license for one year, Section 66-8-111(B), and a mandatory jail sentence if
he or she is convicted of the underlying DUI offense, Section 66-8-102(E). That is,
Section 66-8-102(D)(3) establishes the offense of aggravated driving while under the
influence of intoxicating liquor or drugs (aggravated DUI): “refus[al] to submit to

chemical testing, as provided for in [the Act, while,] in the judgment of the court,

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based upon evidence of intoxication presented to the court, the driver was under the
influence of intoxicating liquor or drugs.” Id.

II. Defendant’s Arrest

{44 Deputy Sarah Young of the Bernalillo County Sheriff's Department was on
duty during the early morning hours of November 7, 2013. She was traveling
westbound on Montano Boulevard in Albuquerque, New Mexico (Montano), in the
same direction as a sport utility. vehicle (SUV) that was ahead of her and was
traveling in the far right lane. The deputy observed the SUV cross over the solid
painted lane divider into the right shoulder lane three times. Deputy Young then
observed the vehicle move the opposite direction into the far left lane and appear to
graze the concrete lane divider. After the SUV turned southbound onto Coors
Boulevard, Deputy Young initiated a traffic stop. When she made contact with
Defendant, who was the driver of the SUV, the deputy smelled the odor of burnt
marijuana coming from the vehicle. Deputy Young then asked Defendant whether
there was anything in the vehicle she should be aware of, and Defendant produced a

marijuana pipe from the center console. Based on the odor of burnt marijuana, the

'«'Elvery [s]tate . . . has long had what are termed ‘implied consent laws.’
These laws impose penalties on motorists who refuse to undergo testing when there
is sufficient reason to believe they are violating the [s|tate’s drunk-driving laws.”
Birchfield, 136 S. Ct. at 2166; see, e.g., South Dakota v. Neville, 459 U.S. 553, 559- |
60 (1983).

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marijuana pipe, and how Defendant was driving, Deputy Young called dispatch to
request a DUI officer. Deputy Johan Jareno responded to the call.

{5} | When Deputy Jareno arrived, he was briefed by Deputy Young and then made
contact with Defendant. Deputy Jareno also smelled the odor of burnt marijuana
coming from the vehicle, and Defendant admitted to Deputy Jareno that he had
smoked marijuana “a couple hours” earlier. Deputy Jareno asked Defendant if he
would perform standardized field sobriety tests (FSTs) and Defendant agreed.
Defendant followed Deputy Jareno’s instructions for the horizontal gaze nystagmus
test, but missed the heel-to-toe twice, turned incorrectly, and used his arms for
balance during the walk-and-turn test. Defendant also failed to follow Deputy
Jareno’s instructions during the one-leg stand test, hopping once and failing to look
at his foot or keep his hands by his sides.

{6} Deputy Jareno testified that standardized FSTs help a law enforcement officer
assess a driver’s ability to operate a motor vehicle safely, because “the tests are
divided attention tests that require multitasking, as does driving.” FSTs are designed
to assess a person’s intoxication regardless of the intoxicating substance. Deputy
Jareno had training in Advanced Road Impairment Detection and Enforcement, where
he learned how to identify drugs by look, smell, and consistency, and he also received

specialized training as a Drug Recognition Examiner.

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{; Following completion of the initial FSTs, Deputy Jareno then decided to give
Defendant two alternate tests. For the first test, Deputy Jareno asked Defendant to
estimate thirty seconds of time. When Defendant performed this exercise, forty-one
seconds actually passed. For the second test, Deputy Jareno asked Defendant to recite |
the alphabet from J to Y, but Defendant was able to recite the alphabet only between
J and P. Based on the results from the standardized FSTs and the two alternate tests,
Deputy Jareno concluded that Defendant was not able to safely operate a vehicle and
arrested him for DUI.
{8}. For Defendant’s part, he testified that “he did not feel intoxicated and thought
he was safe to drive.” He testified that his truck was “beat up” and that he had “blown |
out” the suspension, causing the truck to sway between the lanes because the road
was “very bumpy.” Defendant also testified that he believed his driving was fine and
that his vehicle did not strike the barrier. Defendant also denied that the marijuana
pipe he turned over to Deputy Young belonged to him.
993 After Defendant’s arrest, but while still on the scene, Deputy Jareno read
Defendant a scripted advisory statement for implied consent that states:

You are under arrest for driving under the influence of intoxicating

liquor and/or drug[s].The New Mexico Implied Consent Advisory [sic]

requires you to submit to a breath test, a blood test, or both to determine

the alcohol or drug content of your blood. After you take one or both of

our tests, you will have the right to choose an additional independent
test... . Do you agree to take our test or tests—yes or no?

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Defendant stated that he understood the advisory and he agreed to be tested. Deputy
Jareno transported Defendant to a police station where Defendant was administered
a breath test. The test showed negative for alcohol. Deputy Jareno then asked
Defendant to submit to a blood test and Defendant refused. Deputy Jareno then stated:

I cannot force you to take our test but if you refuse you will lose your

New Mexico driver’s license or non-resident operating privilege for up

to one year. If you are also found guilty in court of driving while under

the influence you may receive a greater sentence because you refused to

submit to be tested.
Defendant still refused to submit to a blood test.
I. District Court Appeal
03 The metropolitan court (trial court) jury found Defendant guilty of possession
of drug paraphernalia, failure to maintain traffic lane, and aggravated DUI. The trial
court entered its sentencing order and judgment on July 14, 2014. Defendant appealed
his conviction to the district court, asserting error based on the trial court’s dental of
his motion to strike the three potential jurors for cause, the claimed lack of sufficient
evidence to prove failure to maintain traffic lane, the claimed lack of sufficient
evidence to prove Defendant was guilty of DUI, and the trial court’s denial of his
mistrial motion based on the prosecutor’s claimed misstatement of the law during

closing argument. In a motion to dismiss, the State contended that Defendant had

waived any claim of error with respect to the sufficiency of the evidence. In its

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memorandum opinion entered on July 29, 2015, the district court did not address the
State’s waiver argument and instead proceeded to address the merits of Defendant’s
arguments, but ultimately found no reversible error and affirmed the sentencing order. |
Defendant timely filed his notice of appeal to this Court. We note that the State has
not appealed the district court’s de facto denial of its motion to dismiss, and thus we
do not address the waiver issue.

ANALYSIS

1. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s
Motion to Strike Jurors for Cause

{11} Defendant’s jury selection argument focuses on two members of the venire
panel, Baker and Romero, who were not selected to serve on the jury, and one,
Lucero, who was selected as a juror.

42} During voir dire, in response to a question from defense counsel (“How many
of you think that if you have used drugs or alcohol, no matter in what amount, in just
the slightest amount, that you are not okay to drive?”), Baker stated, “I don’t allow
drugs of any sort, even one drink is breaking the law.” Baker spoke only the one time
during voir dire. Defense counsel never followed up with Baker to ascertain whether,
notwithstanding his incorrect understanding of the law, he still could follow the
court’s instructions and decide the case fairly and impartially.

13}. Later during voir dire, defense counsel asked the following question: “Ms.

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Lucero? Okay. Let’s see—how do you feel about . . . the questions regarding whether
if you’ve used any amount of marijuana, whether or not you’re safe to drive—do you
think that’s the case?” Lucero responded, “Yes it is because it’s endangering himself
and endangering other people.” That response was the only time that Lucero spoke
during voir dire. Defense counsel did not follow up with Lucero to ascertain whether
she could follow the court’s instructions and decide the case fairly and impartially.
4144 Defense counsel then asked Romero the following question: “Ms. Romero, I
guess the same question to you—what do you think—would somebody who had any
amount of marijuana in their system, would they be unable to drive safely?” Romero
responded, “Well yeah, they’d be unable to drive because it’s illegal to drink and
drive.” Similar to Baker and Lucero, defense counsel did not follow up with Romero
to ascertain whether she could follow the court’s instructions and decide the case
fairly and impartially. That was the only time she spoke during voir dire.

{15} Outside the presence of the venire panel, defense counsel moved to strike
Baker, Lucero, and Romero, as well as another panel member, Pilcher, for cause. As
is discussed below, the trial court agreed to strike Pilcher, but otherwise denied the
motion. During the course of selecting the six members of the jury, defense counsel
used one of Defendant’s two peremptory excusals to strike Baker, but accepted

Lucero. During the course of selecting an alternate juror, defense counsel exercised

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Defendant’s remaining peremptory challenge on Romero.

416} Defendant argues that the trial court erred in denying his motion to strike
Baker, Lucero, and Romero for cause. Defendant asserts that all three stated that,
because marijuana is illegal, a driver who uses any amount cannot drive safely. In
response, the State argues that Defendant failed to demonstrate how these three panel
members were unwilling or unable to decide the case based on the evidence and the
trial court’s instructions. The State also points out that, of the three panel members
that Defendant moved to strike, only one, Lucero, actually served on the jury.

{17} “rial courts... are given broad discretion in overseeing the voir dire process.
... The trial court, who is listening first hand to counsel’s questions and the panel
members’ responses, is in the best position to determine whether voir dire has
sufficiently exposed any biases that may preclude jurors from acting fairly and
impartially.” State v. Martinez, 2002-NMCA-036, JJ 31, 35, 131 N.M. 746,
42 P.3d 851. “In general, we review the trial court’s rulings regarding the selection
of jurors for an abuse of discretion because the trial court is in the best position to
assess a juror’s state of mind, based upon the juror’s demeanor and credibility.” State
v. Allen, 2000-NMSC-002, ¥ 83, 128 N.M. 482, 994 P.2d 728 (internal quotation
marks and citation omitted). Further, and crucially, “[the d]efendant cannot prevail

on appeal unless he demonstrates that the jurors finally selected were biased or

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prejudiced.” State v. Gardner, 2003-NMCA-107, { 16, 134 N.M. 294, 76 P.3d 47.
418} In State v. Rackley, 2000-NMCA-027, 128 N.M. 761, 998 P.2d 1212, the
defendant was convicted of multiple crimes in connection with arobbery. On appeal,
he challenged the trial court’s refusal to excuse for cause three members of the venire
panel based on the fact that, during voir dire, two of the panel members commented
generally about the defendant’s decision to not testify and the third commented about
the defendant’s status as a convicted felon. Jd. JJ 10, 12. This Court noted that these
comments implicated rules regarding the presumption of innocence, the privilege not
to testify, and the rules of evidence limiting character and propensity evidence. Jd.
q§ 11-12. This Court then observed that

[the dJefendant is trying to convert a juror’s admission of a layperson’s
natural response into prima facie evidence of impermissible bias.
Evidentiary rules restricting the use of propensity evidence reflect a
judgment that the probative value of such evidence is outweighed by
unfair prejudice, confusion, and waste of time. Although these rules and
the policies they represent may be known to and accepted by lawyers,
they are not necessarily familiar to non-lawyers, who routinely rely on
information about a person’s past behavior in making social and
business judgments. The fact that a juror is unaware at the outset of a
criminal trial of the complicated scheme regulating the use of collateral
offenses/character evidence is not at all surprising and should not, of
itself, give rise to a presumption that a juror is incapable of following
the trial court’s instructions on the proper uses of evidence of collateral
offenses. Indeed, the very purpose of instructions is to educate jurors
about the applicable law.

Id. {12 (citations omitted). This Court concluded that, with respect to all three panel

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members, the defendant failed to demonstrate that any of the three panel members
was “biased or otherwise incapable of deciding [the] case on the facts established at
trial and the trial court’s instructions on the law.” Id.

9} Defendant’s jury selection argument herein can be resolved on similar grounds.
The three panel members in question simply expressed their layperson views about
the physiological effects of marijuana and/or the law governing driving under the
influence of drugs. Defense counsel did not follow up on those questions and inquire
whether they could and would follow the trial court’s instructions on the law and
decide the case on the basis of the testimony and exhibits that were introduced into
evidence. In the absence of that information, we decline to speculate about whether
any of the three members would not have obeyed the trial court’s instructions and
instead would have decided the case on the basis of their layperson views or any
actual biases. We therefore conclude that the trial court did not abuse its discretion
during jury selection.

II. Section 66-8-102(D)(3) Is. Unconstitutional as Applied to a Motorist’s
Refusal to Submit to a Blood Test

20} Citing Birchfield, Defendant argues that in aggravating the sanction for driving
under the influence of marijuana based on his refusal to consent to a blood test, the State
is punishing him for invoking his constitutional right to be free from warrantless searches

of his person. He urges that the aggravated DUI charge therefore must be reversed.

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A. Standard of Review

a1; “The legality of a search . . . ultimately turns on the question of
reasonableness.” State v. Ryon, 2005-NMSC-005, J 11, 137 N.M. 174, 108 P.3d
1032. While this “inquiry is necessarily fact-based it compels a careful balancing of
constitutional values, which extends beyond fact-finding,” and is therefore subject to
de novo review. State v. Rowell, 2008-NMSC-041, 9 8, 144 N.M. 371, 188 P.3d 95
(internal quotation marks and citation omitted). The constitutionality of a statute is
reviewed de novo as well. See Rodriquez v. Brand West Dairy, 2016-NMSC-029,
q 10, 378 P.3d 13.

B. Preservation of Error

7223. The State contends that, because he did not raise it below, Defendant waived
his Fourth Amendment argument. “To preserve an issue for review it must appear that
a ruling or decision by the trial court was fairly invoked.” Rule 12-321(A) NMRA.
As discussed below, however, the grounds for the constitutional argument were not
apparent until June 23, 2016, when the United States Supreme Court announced its
opinion in Birchfield. “[W]here a decision by the district court was not fairly invoked
on a particular issue, an appellate court may still consider jurisdictional questions,
issues of general public interest, or matters involving fundamental error or

fundamental rights of a party.” Vargas, 2017-NMCA-023, { 15 (internal quotation

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marks and citation omitted). Here, where Defendant’s trial and district court appeal
occurred well before the legal ground became known, “we will exercise our discretion
to consider whether compelling [the d]Jefendant to submit to a blood test constitutes
an illegal search under the Fourth Amendment because freedom from illegal search
and seizure is a fundamental right that may, in particular circumstances, come within
the exception to the preservation requirement.” /d. (internal quotation marks and
citation omitted).

C. Fourth Amendment Principles Applicable to Blood Testing for Impaired
Driving

23} The Fourth Amendment to the United States Constitution provides in pertinent
part that: “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
[w]arrants shall issue, but upon probable cause[.]” U.S. Const. amend. IV. The Fourth
Amendment expresses a clear preference that law enforcement should obtain a search
warrant prior to conducting a search. See State v. Williamson, 2009-NMSC-039, § 14,
146 N.M. 488, 212 P.3d. 376. “Any warrantless search analysis must start with the
bedrock principle of both federal and state constitutional jurisprudence that searches
conducted outside the judicial process, without prior approval by a judge or
magistrate, are per se unreasonable, subject only to well-delineated exceptions.”

Rowell, 2008-NMSC-041, { 10 (emphasis, internal quotation marks, and citation

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omitted); accord Missouri v. McNeely, 569 U.S. ___,133 S. Ct. 1552, 1558 (2013)
(holding that a warrantless search is reasonable only if it falls within a recognized
exception). Courts have recognized exceptions for, among others, searches incident
to arrests, exigent circumstances, and searches where the subject consents. See
Rowell, 2008-NMSC-041 7 13 (noting that an exception permits search ofan arrestee,
following a lawful arrest, to prevent him or her from obtaining a weapon or
destroying evidence); State v. Gomez, 1997-NMSC-006, ff 36-44, 122 N.M. 777, 932
P.2d | (stating that an exception allows search “to prevent imminent danger to life or
serious damage to property, or to forestall the imminent escape of a suspect or
destruction of evidence” (internal quotation marks and citation omitted)); State v.
Garnenez, 2015-NMCA-022, 95, 344 P.3d 1054 (“Consent and arrest are exceptions
to the warrant requirement.”).

4} Drawing an individual’s breath or blood for purposes of testing for alcohol
content constitutes a search within the meaning of the Fourth Amendment. Birchfield,
1368. Ct. at 2174; State v. Richerson, 1975-NMCA-027, { 23, 87 N.M. 437, 535 P.2d 644,
On several occasions over the past half century, the United States Supreme Court has
applied the Fourth Amendment to breath and blood alcohol testing regimens that
states have established to combat the problem of drunk driving. See Schmerber v.

California, 384 U.S. 757, 771-72 (1966) (concluding under the circumstances of that

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case that a warrantless blood alcohol test (BAT) was justified under the exigent
circumstances exception and therefore not an unreasonable search); see also
McNeely, 133 S. Ct. at 1557 (clarifying Schmerber and holding that the exigency
exception for warrantless blood testing must be applied on a case-by-case basis,
reasoning that the natural metabolism and thus dissipation of alcohol in the
bloodstream does not, by itself, justify a per se rule); ef Neville, 459 U.S. at 559
(answering in the negative the question of whether a South Dakota implied consent
statute, which expressly authorized admission into evidence of a defendant’s refusal
to consent to a BAT when arrested on suspicion of drunk driving, violated the United
States Constitution’s Fifth Amendment’s privilege against self-incrimination).

D. Birchfield and Vargas

25} Birchfield considered whether the search incident to arrest exception was
applicable to both breath and blood alcohol testing. After reviewing the exception’s
history, the United States Supreme Court began its analysis by observing that, when
there is a lack of guidance from the founding era, “we generally determine whether
to exempt [on the basis of the search incident to arrest doctrine] a given type of search
from the warrant requirement by assessing, on the one hand, the degree to which it
intrudes upon an individual's privacy and, on the other, the degree to which it is

needed for the promotion of legitimate governmental interests.” 136 S. Ct. at 2176

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(interna! quotation marks and citation omitted). The Court reasoned that while breath
tests do not implicate significant privacy concerns, blood tests are a different matter
because “[t]hey require piercing the skin and extract a part of the subject’s body...
the process is not one [many people] relish. It is significantly more intrusive than
blowing into a tube.” Jd. at 2178 (internal quotation marks and citation omitted).
Blood tests are also different from breath tests because a blood test “places in the
hands of law enforcement authorities a sample that can be preserved and from which
it is possible to extract information beyond a simple [blood alcohol content (BAC)}
reading.” Id. at 2178.

26; The Court then assessed the government’s interest in BAT. The Court
acknowledged that laws that make it a crime to refuse to submit to alcohol testing via
breath and blood tests “serve a very important function.” Jd. at 2179. However,
because the search incident to arrest doctrine is categorical, as opposed to the
exigency exception to the warrant requirement, which, McNeely teaches, requires a
case-by-case analysis, the Fourth Amendment does not permit warrantless blood
draws for alcohol testing as searches incident to arrest: “[b]lood tests are significantly
more intrusive, and their reasonableness must be judged in light of the availability of
the less invasive alternative of a breath test.” Birchfield, 136 S. Ct. at 2183-84.

Warrantless breath alcohol tests, on the other hand, are constitutional as searches

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incident to arrest. See id. at 2184.

27 Lastly, the Birchfield Court considered but rejected the argument that
warrantless blood draws could be justified under the Fourth Amendment’s consent
exception: “motorists cannot be deemed to have consented to submit to a blood test
on pain of committing a criminal offense.” Jd. at 2186.

283 In Vargas, this Court applied Birchfield’s holding to a conviction for
aggravated DWI of a motorist who refused to consent to a blood test after being
arrested for driving under the influence of alcohol: “[The dJefendant’s refusal to
submit to the search cannot be the basis for aggravating [the DWI] sentence.” Vargas,
2017-NMCA-023, J 25. We reversed the aggravated DWI conviction but remanded
the case to the trial court for resentencing on the underlying DWI offense.

E. Applying Birchfield to Defendant’s Conviction for Aggravated Driving
Under the Influence of Marijuana

29} Notwithstanding its reliance on the availability of breath alcohol testing as one
of the key reasons for its conclusion that blood alcohol testing did not merit a per se
search incident to arrest exception to the warrant requirement, the Court in Birchfield
declined to recognize such an exception for warrantless blood testing where a driver
is arrested on suspicion of driving while under the influence of substances for which
a breath test is not available:

One advantage of blood tests is their ability to detect not just alcohol but

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also other substances that can impair a driver’s ability to operate a car

safely. A breath test cannot do this, but police have other measures at

their disposal when they have reason to believe that a motorist may be

under the influence of some other substance (for example, ifa breath test

indicates that a clearly impaired motorist has little if any alcohol in his

blood). Nothing prevents the police from seeking a warrant for a blood

test when there is sufficient time to do so in the particular circumstances

or from relying on the exigent circumstances exception to the warrant

requirement when there is not.
136 S. Ct. at 2184 (citation omitted). Thus, the United States Supreme Court appears
to have foreclosed any argument that a warrantless blood test for a drug other than
alcohol, such as marijuana, can be justified under the search incident to arrest
exception.
30} The State argues that Birchfield’s holding should not be applied retroactively,
but the rule is to the contrary. “[A] new rule for the conduct of criminal prosecutions
is to be applied retroactively to all cases, state or federal, pending on direct review or
not yet final[.]” Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (eliminating
retroactive application exception “for cases in which the new rule constitutes a ‘clear
break’ with the past”); see United States v. Johnson, 457 U.S. 537, 562 (1982)
(holding that “a decision of [the United State Supreme] Court construing the Fourth
Amendment is to be applied retroactively to all convictions that were not yet final at

the time the decision was rendered”); State v. McCumber, 893 N.W.2d 411, 417 (Neb.

2017) (noting that “with Birchfield pronouncing a new constitutional rule, it applies

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retroactively to any case on direct appeal”).

31} The State also argues that, because Defendant did not assert the
unconstitutionality of the aggravated DUI charge until after his conviction and
pending the appeal, the State had “no occasion to present evidence or argument below
as to whether concerns over the loss of evidence due to the metabolization of
marijuana, exigent circumstances generally, or some other case-specific information
could have provided an alternative basis on which to justify a warrantless test of
[Defendant’s] blood.” Under the Act, a law enforcement agency may not, without a
warrant, force a driver to undergo a blood test. See § 66-8-111(A). In other words,
under the Act, the exigent circumstances exception is not available to New Mexico
law enforcement to obtain a blood test where a driver is arrested for DUI and refuses
to consent to the test. Further, law enforcement generally may not seek a warrant for
a blood test of a motorist who is arrested for driving under the influence of alcohol
or other drug, the only exceptions being where the driver has either caused death or
great bodily harm, or committed a felony and chemical tests will produce material |
evidence in the felony prosecution. See id. Thus, it is a moot point whether in this
case the State could establish exigent circumstances to justify an involuntary blood
test of Defendant.

{32} As stated above, Section 66-8-102(D)(3) provides that aggravated DUI consists

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of “refusing to submit to chemical testing, as provided for in [the Act], and in the
judgment of the court, based upon evidence of intoxication presented to the court, the
driver was under the influence of intoxicating liquor or drugs.” The offense thus
consists of the underlying offense of driving under the influence of alcohol or another
drug, plus refusal to consent to a blood test. Section 66-8-102(E) imposes criminal
penalties for the act of refusal, in addition to those imposed for the underlying
offense: for a first aggravated DUI offense, “the offender shall be sentenced to not
less than forty-eight consecutive hours in jail.” Jd. In light of Birchfield, and
consistent with Vargas, we hold that Section 66-8-102(D)(3) is unconstitutional to
the extent violation of it is predicated on refusal to consent to a blood draw to test for
the presence of any drug in the defendant’s blood. We conclude that Birchfield’s
holding—the constitution does not support an enhanced criminal penalty based upon
a defendant’s refusal to consent to a blood test for the presence of aleohol—must be
extended to any enhanced criminal penalty for a defendant’s refusal to consent to a
blood test for the presence of other drugs, in this case marijuana. Defendant herein
cannot be criminally punished for his refusal to submit to a blood test, and we
therefore reverse his conviction for aggravated DUI.

Ill. Birchfield Does Not Invalidate the Introduction of Evidence of a
Defendant’s Refusal to Submit to a Blood Chemical Test

33; During his opening statement, defense counsel asserted, “They’re not going to

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be able to show you that he has any actual marijuana in his system because aside from
this pipe that [Defendant] turned over to them, they really have no evidence that he
had been using marijuana while driving or that he was under the influence of
marijuana while driving. They don’t have a blood test, [Defendant] refused to take
one, but they have no actual proof that he ha[d] marijuana in his system, and this isn’t
necessarily—well, we’re gonna see some evidence about, perhaps, why he refused
and we think that when you see it, you will conclude that he’s not refusing in order
to evade detection of drugs in his system.”
34 During his initial closing argument, the prosecutor commented on Defendant’s
refusal: “[D]efendant refused because he was afraid of the results.” Defense counsel
immediately objected, and the parties approached the bench for a side bar conference.
Defense counsel argued that the prosecutor’s statement called for speculation. Both
the prosecutor and the judge pointed out that the prosecutor’s statement concerned
consciousness of guilt, and the judge overruled the objection. The prosecutor
continued, stating: “It was [D]efendant’s fear that drove him to refuse that [testing].”
Later, at the end of his initial closing argument, the prosecutor stated:

It’s his admissions, the odor, his performance on the field sobriety tests, his

poor driving, his refusal. He’s under the influence. [Defendant believes he’s

sober but the evidence points otherwise. That’s his belief, an individual who

admittedly was smoking marijuana, and that can play into your credibility

assessment of him. I don’t believe he was being dishonest. J believe he was
impaired. The State asks you to find [D]efendant guilty.

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Defense counsel did not object to this statement.

35} During his rebuttal following defense counsel’s closing argument, the
prosecutor stated, “He was honest, so there should be some other reason as to why he
would refuse the test... . Ladies and Gentlemen, yes, he was honest with you, and
handed the pipe over, admitted to smoking—auntil he was arrested for [DUI]... . Until
there’s the very real probability that the blood needle goes into his arm and he gets
tested and there is no doubt that he is under the influence.” Defense counsel then
objected, and the parties approached the bench for a sidebar conference. Defense
moved for a mistrial. The trial judge denied the motion, but stated, “I am concerned
about saying sticking the needle in his arm that would have proven beyond—that
would have proven he was guilty, because he can’t prove that, that’s purely
speculation, so I’1l sustain the objection to that, and I think you need to withdraw that
statement.” The prosecutor then continued his rebuttal, stating, “Ladies and
Gentlemen, counsel has pointed out that I made a bit of a misstatement there. Just
because he had his blood drawn wouldn’t have removed all doubt. The State still
would have to produce that evidence in court. But [D]efendant was afraid of it.”
Defense counsel did not object to this statement.

36} Based on Birchfield, and reasoning that he should not be penalized for

asserting his Fourth Amendment right, Defendant urges that the trial court also erred

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in allowing the prosecutor to argue during final argument that Defendant’s refusal to
consent to a blood test was evidence of consciousness of his guilt. For the same
reasons this Court considers Defendant’s constitutional challenge to his aggravated
DUI conviction notwithstanding his failure to preserve the claimed error, we also will
consider this argument. Therefore, it is not necessary to undertake the plain or
fundamental error analysis that Defendant pursues. However, we reject the substance
of the argument and determine that the trial court did not err in allowing the comment.
A. Birchfield and Its Predecessors

{37} As mentioned above, Neville addressed the constitutionality ofa South Dakota
law that expressly permitted the introduction of evidence of a motorist’s refusal to
consent to a BAT. South Dakota courts had concluded that the statute violated the
federal constitutional privilege against self-incrimination on the theory that
introducing evidence of refusal to consent to a blood test was analogous to
introducing evidence of a criminal defendant’s refusal to testify. The United States
Supreme Court disagreed. The Court noted that most state courts that had considered
the question had concluded that refusal to submit is a physical act rather than a
communication, and therefore not encompassed by the privilege. Instead, “evidence
of refusal to take a potentially incriminating test is similar to other circumstantial

evidence of consciousness of guilt, such as escape from custody and suppression of

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evidence.” 459 U.S. at 560-61. The Court ultimately grounded its ruling, however,
on the alternative rationale that, because a defendant has a choice in taking or
refusing to take the test, the blood test is not coerced, and therefore the refusal is not
protected by the privilege. See id. at 561-64. It follows, therefore, that introduction
of evidence of such refusal does not violate the Fifth Amendment privilege against
self-incrimination.
gs: The Court did not address in Neville whether the admission of evidence of
refusal to consent to a blood test infringed on a defendant’s Fourth Amendment right
against unreasonable searches. Since Neville, however, the United States Supreme
Court has spoken to that question twice. First, the court addressed the question in
McNeely in connection with its holding that the natural metabolization of alcohol in
the bloodstream does not constitute a per se exigency that justifies non-consensual,
warrantless blood testing. In response to the state’s argument that its compelling
interest in combating drunk driving justified a per se exigency exception, the Court
noted with approval the availability of other means of addressing the problem,
including introduction of evidence of refusal to consent to a BAT:

States have a broad range of legal tools to enforce their drunk-driving

laws and to secure BAC evidence without undertaking warrantless

nonconsensual blood draws. For example, all 50 [s]tates have adopted

implied . . . consent to BAC testing if [motorists] are arrested or

otherwise detained on suspicion of a drunk-driving offense. Such laws
impose significant consequences when a motorist withdraws consent;

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typically the motorist’s driver’s license is immediately suspended or
revoked, and most [s]tates allow the motorist’s refusal to take a BAC
test to be used as evidence against [them] in a subsequent criminal
prosecution.

133 S. Ct. at 1566 (emphasis added) (internal quotation marks and citation omitted).
39} Second, in Birchfield, and relying in part on the aforementioned language in
McNeely, the United States Supreme Court spoke to the question in the context of
distinguishing between criminalizing the refusal to take a BAT (which it deemed
unconstitutional as a proposed exception under the consent doctrine) and using that
refusal as evidence of consciousness of guilt on the underlying driving while
intoxicated offense (which it signaled is constitutional):

Our prior opinions have referred approvingly to the general concept of

implied-consent laws that impose civil penalties and evidentiary

consequences on motorists who refuse to comply. Petitioners do not

question the constitutionality of those laws, and nothing we say here

should be read to cast doubt on them. It is another matter, however, for

a [s]tate not only to insist upon an intrusive blood test, but also to

impose criminal penalties on the refusal to submit to such a test. There

must be a limit to the consequences to which motorists may be deemed

to have consented by virtue of a decision to drive on public roads.
Birchfield, 136 8. Ct. at 2185 (emphasis added) (internal quotation marks and
citations omitted);” see also Dill v. Texas, No. 05-15-01204-CR, 2017 WL 105073,

at *1-2 (Tex. App., Jan. 11, 2017) (not designated for publication) (rejecting, based

*Based on this same qualifying language, Birchfield does not call into question
the Act’s provision for revocation of one’s driver’s license as a civil penalty for
refusal to consent to a blood test.

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on McNeely and Birchfield, the defendant’s DUI argument that admission into
evidence of her refusal to consent to blood test violated her Fourth Amendment
rights).

B. New Mexico Precedent

{40} Independent of the United States Supreme Court’s application of the Fourth
Amendment, New Mexico courts have not identified any constitutional or other legal
obstacles to the introduction of evidence of, or prosecutor comment on, a defendant’s
refusal to take a blood test for alcohol or other drugs. In McKay v. Davis, 1982-
NMSC-122, 99 N.M. 29, 653 P.2d 860, the defendant was arrested for driving while
under the influence of alcohol. He refused to consent to a breath alcohol test. At a
pre-trial hearing, the metropolitan court advised that it would permit the introduction
of evidence of, and comment on, the defendant’s refusal to consent to the test. The
defendant successfully sought a writ from the district court, prohibiting the
metropolitan court from allowing evidence and comments regarding the defendants’s
refusal to consent to testing. On appeal, our Supreme Court reversed. Citing
Schmerber and decisions from other states, the Court held that “evidence of a
defendant’s refusal to take a breath-alcohol test is admissible under the . . . Act.”
McKay, 1982-NMSC-122, 7 6. Foreshadowing Neville, the Court then ruled that the

defendant’s refusal was not protected as a privileged communication, McKay, 1982-

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NMSC-122, 77, and that the refusal reflected consciousness of guilt that was relevant
and thus admissible pursuant to Rule 11-401 NMRA. McKay, 1982-NMSC-122,
{7 14-16. Since 1982, New Mexico courts repeatedly have relied on evidence of
refusal to consent to breath and blood alcohol tests to support convictions for driving
while under the influence of alcohol. See, e.g., State v. Marquez, 2009-NMSC-055,
147 N.M. 386, 223 P.3d 931, overruled on other grounds by State v. Tollardo, 2012-
NMSC-008, 275 P.3d 110; State v. Caudillo, 2003-NMCA-042, 133 N.M. 468, 64
P.3d 495. The logic underlying these decisions is equally applicable to Defendant’s
prosecution for, and conviction of, driving while under the influence of marijuana.
(44; | Weconclude on the basis of the foregoing federal and New Mexico precedent
that the prosecutor’s commentary on Defendant’s refusal to consent to a blood test did
not violaté his constitutional rights under the Fourth Amendment.

C. Defendant Opened the Door

{42} In his opening statement, defense counsel raised the issue of Defendant’s
refusal to consent to the blood test. However, Defendant did not present any evidence
at trial to follow-up with his opening statement about his refusal to consent. In both
his initial and his rebuttal closing arguments, the prosecutor commented on
Defendant’s refusal, urging that, “It was [D]efendant’s fear that drove him to refuse

that [testing],” and “[D]efendant was afraid of it.”

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{43} Birchfield does not prohibit the introduction of evidence of, and commentary
on, evidence establishing a defendant’s refusal to take a blood test. The trial court}
therefore did not err, fundamentally or otherwise, in allowing the prosecutor’s
comments during closing argument regarding Defendant’s refusal to take a blood test.
But we also cannot ignore the defense counsel’s comment to the jury during opening
statements—that there was some explanation other than consciousness of guilt for
Defendant’s refusal to consent to a blood test. A court is “least likely to find
[fundamental] error where the defense has opened the door to the prosecutor’s
comments by its own argument or reference to facts not in evidence.” State v. Sosa,
2009-NMSC-056, { 33, 147 N.M. 351, 223 P.3d 348 (internal quotation marks and
citation omitted); cf State v. Smith, 2001-NMSC-004, 45, 130 N.M. 117, 19P.3d254
(noting, in a murder trial, that defense counsel stated during opening that the
defendant remained in the vehicle and did not participate in the killing; declining to
reverse conviction based on the prosecutor’s comment on lack of testimony to bear
out counsel’s representation, since the defense invited the argument). “That the
prosecutor can refer to the defendant’s failure to testify if the door is opened by the
defense, is well supported by case law.” State v. Ruffino, 1980-NMSC-072, J 9, 94
N.M. 500, 612 P.2d 1311. Defense counsel’s comment on Defendant’s refusal to

consent in his opening statement constitutes independent grounds for rejecting

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Defendant’s complaint about the prosecutor’s comments during closing argument.

IV. Sufficient Evidence Supported Defendant’s Conviction for Aggravated
DUI

{444 Defendant contends that the evidence presented at trial was insufficient to
establish each of the elements of aggravated DUI beyond a reasonable doubt.
Defendant maintains that, while he wasn’t driving “perfectly,” the fact that Deputy
Young followed him for two miles indicated that he was capable of driving safely,
and that his performance on the FSTs was “quite good].]”

{45} “The test to determine the sufficiency of evidence in New Mexico is whether
substantial evidence of either a direct or circumstantial nature exists to support a
verdict of guilt beyond a reasonable doubt with respect to every element essential to
a conviction.” State v. Montoya, 2015-NMSC-010, § 53, 345 P.3d 1056 (alteration,
omission, internal quotation marks, and citation omitted). “[T]his test involves two.
separate parts. First, a reviewing court must view the evidence in the light most
favorable to the state, resolving all conflicts therein and indulging all permissible
inferences therefrom in favor of tlie verdict. Second, an appellate court determines
whether the evidence, viewed in this manner, could justify a finding by any rational
trier of fact that each element of the crime charged has been established beyond a.
reasonable doubt.” State v. Graham, 2005-NMSC-004, 9 6, 137 N.M. 197,

109 P.3d 285 (alteration, emphases, internal quotation marks, and citations

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omitted).“[S]ubstantial evidence means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion[.]” State v Salgado, 1999-NMSC-
008, 7 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation
omitted). “[W]hen there is a conflict in the testimony, we defer to the trier of fact.”
Buckingham v. Ryan, 1998-NMCA-012, J 10, 124 N.M. 498, 953 P.2d 33. Thus,
“[c]lontrary evidence supporting acquittal does not provide a basis for reversal
because the jury is free to reject [the d]efendant’s version of the facts.” State v. Rojo,
1999-NMSC-001, 7 19, 126 N.M. 438, 971 P.2d 829.

{46} Section 66-8-102(B) provides that, “[i]t is unlawful for a person who is under
the influence of any drug to a degree that renders the person incapable of safely
driving a vehicle to drive a vehicle within this state.” Section 66-8-102(D)(3)
provides that, “[a] ggravated driving while under the influence of intoxicating liquor
or drugs [includes a driver’s refusal] to submit to chemical testing, as provided for in
[the] Act, and in the judgment of the court, based upon evidence of intoxication
presented to the court, the driver was under the influence of intoxicating liquor or
drugs.” Substantial evidence supported all of the elements of aggravated DUI, and |
thus, DUI as well.

{47} First, the State presented substantial evidence that Defendant was under the

influence ofa drug. Both Deputy Young and Deputy Jareno smelled burnt marijuana

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emitting from Defendant’s vehicle. Defendant produced a marijuana pipe from his

vehicle and gave it to Deputy Young. Defendant admitted to Deputy Jareno that he
had smoked marijuana, and the jury was free to reject his claim that he had done SO
a “couple hours” before operating his vehicle and that the pipe belonged to someone
else.

{48} Second, the State presented substantial evidence that Defendant was incapable
of safely driving a vehicle. Deputy Young followed Defendant and observed that he
could not maintain his lane of traffic on Montano, swerving multiple times onto the
right shoulder and then to the left and possibly grazing the concrete lane divider.
Defendant failed the standardized FSTs. The FSTs, as well as Defendant’s additional
testimony that mechanical problems and the “bumpiness” of Montano caused his
vehicle to swerve, all address the credibility and weight of the State’s evidence,
factual issues that are left to the jury to resolve. See Rojo, 1999-NMSC-001, 4 19
(recognizing that under the proper standard of review, appellate courts cannot apply
the conflicting evidence offered by a defendant that might have supported an
acquittal).

449} Regarding the third and fourth elements of DUI, Defendant did not dispute that
he was operating his vehicle in New Mexico and that he refused to consent to take a

blood test. Thus, the State presented substantial evidence at trial to support the jury

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verdict of guilt beyond a reasonable doubt with respect to each element of aggravated
DUI. While we have concluded that Defendant’s conviction of the aggravated DUI
was unconstitutional under United States Supreme Court precedent and therefore
must be reversed, it nevertheless follows that sufficient evidence would support his
conviction of the lesser DUI charge, which Defendant in fact argues in his brief in |
chief.
Vv. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s |
Motion for Mistrial Based on the Prosecutor’s Comments About the Legal
Standard for Driving Under the Influence of Drugs
50} Lastly, Defendant contends that the prosecutor’s comments during jury
selection and final argument about the legal standard for driving under the influence
of drugs were inaccurate and for that reason the trial court should have declared a
mistrial and granted him a new trial.
$1} “Since the granting ofa mistrial is discretionary with the trial court, we will not
disturb the decision on appeal absent an abuse of discretion.” State v. Sutphin,
1988-NMSC-031, 7 18, 107 N.M. 126, 753 P.2d 1314. “Moreover, the power to
declare a mistrial should be exercised with the greatest caution.” Jd. “The trial judge
is in a much better position to know whether a miscarriage of justice has taken place
and his opinion is entitled to great weight in the absence of a clearly erroneous

decision.” /d. (internal quotation marks and citation omitted). “An abuse of discretion

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occurs when the ruling is clearly against the logic and effect of the facts and
circumstances of the case.” Id.

A. Venire Panel Member Pilcher’s and the Prosecutor’s Comments About the
Legal Standard for DUI During Jury Selection

{52}, During voir dire, and in response to the same general question that defense
counsel asked other panel members about whether the use of any amount of alcohol
or marijuana would impair one’s ability to drive, Pilcher gave the following extended
response:

[W]ell, according to as far as alcohol is concerned, the law states as to
[0.08] percent [0.16] percent... alcohol in your bloodstream, that that
is automatic infraction. It also says that even if you do not have that
level of alechol in your blood, that it is by level of “impairment.” So the
level of impairment is really what they go on. It’s not, even if you are
under the legal amount, if you cannot drive safely, then you shouldn’t
be driving. Um, after that it goes for alcohol and tobacco—or not
tobacco—but, . . . marijuana or any other impairing substances, even
medicated, prescribed drugs . . . affect how you can function behind the
wheel of a car. And if you have anything that impairs your ability to
drive, you shouldn’t be driving. And that’s different for different people.
Some people can probably down a couple of beers and be functioning
behind the wheel ofa car, but other people probably have halfa beer and
not be able to function. So really it’s level of function and then whatever
the legal standard is of .. . allowed substance in the bloodstream.

I believe that no one should be drinking or doing alcohol or drugs
anyway, but that’s—ifit’s legal, then they can do it. But, I don’t believe
if they are under the influence . . . that they should be driving.

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[To determine whether somebody is unable to drive,] I would need to
‘know... how much alcohol is in their bloodstream and I would need to
know if they have passed or failed the . . . sobriety tests—the
coordination. So if the officer is of [the opinion] that they had passed
within satisfactory measures, then I would be okay with that. But if
they— had shown that they had not passed the . .. coordination the other
tests that the officer’s conduct, then as far as I’m concerned, he’s
impaired.
53} Following completion of voir dire, and while the trial court and counsel were
selecting the jury but outside the presence of the venire panel, the prosecutor made
the following comment about Pilcher: “As far as a non-attorney juror, I think that Mr.
Pilcher has most accurately stated what the standard is for driving while intoxicated:
out of any individual I’ve ever run across. This is an individual who knows the law
and accurately recited it to the court. He doesn’t drink. He doesn’t use drugs. But he’s
also said he will follow the law and he has to find impairment in order to convict and
this is an individual who actually knows the law.” The prosecutor continued, “And
Your Honor, regarding the statement of law, there is actually case law and ifthe court
wants me to go get it right now, I will, that says driving while impaired to the
slightest degree is exactly the same as driving while incapable of operating safely.
The Court of Appeais has decided that that language is basically interchangeable and

means the same thing.” The trial court ultimately struck Mr. Pilcher for cause.

B. The Prosecutor’s Comments During Closing Argument on the Legal
Standard for DUI

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54 During the State’s closing argument, the prosecutor distinguished the correct
standard for DUI with drugs (incapable of safely driving a vehicle (Section 66-8-
102(B))), from the standard for DUI with alcohol (impairment to the slightest degree
(Section 66-8-102(A); UJI 14-4501 NMRA)). See generally State v. Gurule,
2011-NMCA- 042, 7 7, 149 N.M. 599, 252 P.3d 823. The prosecutor then stated,
“Any impairment by a drug renders you incapable of operating a vehicle[.]” Defense
counsel immediately objected and moved for a mistrial. The trial judge sustained the
objection, characterizing the prosecutor’s statement as “a misstatement of the law”
and telling the prosecutor to rephrase his statement, but denied the mistrial motion.
The prosecutor suggested rephrasing to say “any intoxicating drug,” although it ts
unclear what exactly the prosecutor planned to say, and the trial judge added “may
impair.” The prosecutor then continued with closing argument by stating, “Defendant
was impaired by marijuana, and there’s plenty of evidence to support that. And any
impairment, the smallest impairment by an intoxicating drug makes you unsafe. Half
a second difference is unsafe. Six seconds, six seconds is way unsafe. Not even
noticing that you’ve grazed a barrier because you’re high is unsafe.” Defense counsel
did not object to this rephrasing.

C. The Trial Court Did Not Abuse Its Discretion in Denying a Mistrial

{55} Defendant insists that the trial court “abused its discretion in refusing to grant

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a mistrial in the face of the prosecution’s continuing efforts to mislead the jury with
misstatement and misapplication of the law.” We disagree.

{56} First, the prosecutor’s comments during jury selection were made to the trial
court out of the presence of the venire panel. Whether or not the prosecutor’s
characterization of the law was incorrect, Defendant cannot claim any resulting
prejudice.

{57} Second, after the prosecutor stated in closing argument that, “Any impairment
by a drug renders you incapable of operating a vehicle,” the trial court sustained
defense counsel’s objection, characterized the prosecutor’s statement as “a.
misstatement of the law” and told the prosecutor to rephrase his statement. We cannot
say that these actions by the trial court, together with the definition of the offense
contained in the instructions that the jury ultimately received and to which Defendant
does not object, did not eliminate any prejudice that Defendant otherwise might have
suffered.

58} Further, following the trial court’s instruction to rephrase his statement, the
prosecutor stated: “[D]efendant was impaired by marijuana, and there’s plenty of
evidence to support that. And any impairment, the smallest impairment by an|

intoxicating drug makes you unsafe. Half a second difference is unsafe. Six seconds,

six seconds is way unsafe. Not even noticing that you’ve grazed a barrier because

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you’re high is unsafe.” Defense counsel did not object to this rephrasing.

59} The emphasized language essentially repeats the prosecutor’s previous
misstatement of the law. But he then blunted any impact of the error by equating
“impairment” to the evidence of Defendant’s unsafe driving as opposed to his mental
state. We note as well that, prior to making this comment, the prosecutor himself had
articulated the difference in the legal standards for driving under the influence of
alcohol versus drugs. Consequently, we view the error as harmless under the
circumstances. But in any event, defense counsel failed to object, and therefore
waived the error.’

{60} Third, Defendant suggests that the lengthy statement of venire panel member
Pilcher had already tainted the jury’s collective thinking and predisposed them to }
apply an incorrect legal standard for establishing driving under the influence of a
drug. This amounts to speculation. There is no evidence that the jury members did not
follow the trial court’s instructions regarding this standard and that the jury generally
must follow its instructions. The trial court is given, and must exercise, considerable
discretion in evaluating the propriety of argument and in curing any alleged defects.

The trial court denied Defendant’s motion for new trial, stating that the prosecutor’s

Defendant does not contend that the prosecutor’s second statement about the
applicable legal standard rose to the level of fundamental error, and therefore we do
not engage in that analysis. See Sosa, 2009-NMSC-056, {| 26.

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comments had not deprived Defendant of a fair trial. “We believe that the court acted

within the proper bounds of its discretion, and we will not reverse a decision denying
a new trial on such arecord.” State v. Sellers, 1994-NMCA-053, 731, 117 N.M. 644,
875 P.2d 400. Based on the foregoing, we conclude that the trial court did not abuse
its discretion in denying Defendant’s motion for mistrial.

CONCLUSION

{61}. This Court 1s keenly aware of the “grisly toll,” see Birchfield, 136 8. Ct. at
2166, that drunk drivers take on our state’s roads. The risk to society will only be
exacerbated if individuals also get behind the wheel of a vehicle after they have
consumed marijuana, a prospect that could occur more frequently in the future if
trends toward the legalization of marijuana around the country continue. While
Birchfield has taken away one of the tools—aggravation of the crime and punishment
for refusing to consent to a blood test—that our Legislature has provided courts to use |
to address this serious problem, as we explain above, evidence of such refusal still
may be introduced into evidence and commented on during trial of the underlying
driving under the influence offense. Birchfield also does not foreclose the Legislature
from authorizing law enforcement to obtain a warrant when a motorist refuses to
consent to a blood test or seeking to obtain a warrantless blood test upon a showing

of exigent circumstances. It is the province of the Legislature to consider these

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1]

12

13
14

15

16
17

options. See, e.g., H.B. 129, 53rd Leg., Ist Sess. (N.M. 2017), available at
hitp://www.nmlegis.gov/Legislation/Legislation?Chamber=-H&LegType=B&Leg
No=129&year=17 (proposing amendments to Section 66-8-107 and Section 66-8-
1 11, to authorize warrantless blood tests where exigent circumstances exist and to
broaden the authorization for issuance of a warrant where there is probable cause to |
believe that the motorist is under the influence of alcohol or a controlled substance).
{623 Wereverse Defendant’s conviction for the aggravated portion of his DUI and
affirm his conviction for DUI without any aggravation resulting from his refusal to
submit to a blood test. We otherwise affirm Defendant’s remaining convictions, and
remand to the metropolitan court for entry of judgment and sentencing consistent with
this opinion.

{3} IT ISSO ORDERED.

HENRY M. BOHNHOFF, Judge

I CONCUR:

TIMOTHY L/GARCIA, Judge

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ZAMORA, Judge (specially concurring).

64; [concur in the majority opinion but write separately to express my concerns
with inconsistencies in our conclusions in Sections II and III of the majority’s
analysis. Majority Op. Jj 20-41. With the advent of Birchfield, these conclusions
generate inconsistencies. 136 S. Ct. 2160. While on one hand we are concluding that
Defendant has the Fourth Amendment right to refuse to comply with a warrantless
blood test, Majority Op. ff 31-32, it appears that on the other hand we are taking that
right away by using Defendant’s refusal as evidence of consciousness of guilt.
Majority Op. 7 41. Another source of inconsistency arises from our conclusion that
Defendant cannot be charged criminally for refusal to comply with a warrantless
blood test, Majority Op. | 32, but yet the refusal may be used against him to support
a conviction for driving while under the influence of drugs: Majority Op. 4] 40-41.
{65} While the majority cites to federal and state precedent in support of the use of |
Defendant’s refusal to consent to a blood test to prove his consciousness of guilt, I
did not see a principled analysis that resolves these inconsistencies. Nonetheless, our
courts have spoken. See Trujillo v. City of Albuquerque, 1998-NMSC-03 1,933, 125
N.M. 721, 965 P.2d 305 (“Stare decisis is the judicial obligation to follow precedent,
and it lies at the very core of the judicial process of interpreting and announcing

law.”). Birchfield, Vargas, and now this case have laid the ground work that may

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require a look to the New Mexico Constitution, Article I], Section 10 for solutions to

these inconsistencies.

LU ee

M. MONICA ZAMQRA, Judge

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