March 25, 2020- State of New Mexico v. Richard Gipson, No. A-1-CA-37313

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37313	4
RICHARD GIPSON,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	7
Karen L. Townsend, District Judge	8
Hector H. Balderas, Attorney General	9
Eran Sharon, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Santa Fe, NM	14
Steven J. Forsberg, Assistant Appellate Defender	15
Albuquerque, NM	16
for Appellant	17
MEMORANDUM OPINION	18
ATTREP, Judge.	19
{1} 	Defendant Richard Gipson appeals the district court’s denial of his motion to	20
suppress blood test results following his conditional, no contest plea to driving while	21
under the influence of intoxicating liquor or drugs (DUI), NMSA 1978, § 66-8-	22
102(C)(1) (2010, amended 2016). Defendant argues the blood test results should	23
Court of Appeals of New Mexico
Filed 3/25/2020 11:59 AM

2
have been suppressed because they were the product of a warrantless blood draw,	1
without voluntary consent. Defendant additionally contends he received ineffective	2
assistance of counsel during the plea process, resulting in a plea that was not	3
knowing and voluntary. We affirm.	4
MOTION TO SUPPRESS	5
I. 	Warrantless Blood Draws	6
{2} 	Defendant moved to suppress blood test results,1 arguing that the warrantless	7
blood draw was unconstitutional pursuant to the United States Supreme Court’s	8
decision in Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160 (2016), which	9
addressed, 	inter 	alia, 	implied 	consent 	laws 	requiring 	motorists 	to 	submit 	to	10
warrantless blood draws under threat of criminal penalties. Under the New Mexico	11
Implied Consent Act (ICA), NMSA 1978, §§ 66-8-105 to -112 (1978, as amended	12
through 2019), anyone who operates a motor vehicle in New Mexico is deemed to	13
have consented to chemical tests of his breath and/or blood if he is arrested for DUI,	14
1 Although Defendant’s motion cited both the Fourth Amendment of the
United 	States 	Constitution 	and 	Article 	II, 	Section 	10 	of 	the 	New 	Mexico
Constitution, Defendant makes no argument that our New Mexico Constitution
affords greater protections than the federal Constitution. We will not develop this
argument for Defendant and, consequently, 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).

3
see § 66-8-107(A), and is subject to additional criminal penalties for refusing such	1
testing, see § 66-8-102(D)(3). Birchfield held that a blood draw is a search subject	2
to the warrant requirement and, contrary to implied consent laws like the ICA,	3
motorists cannot be deemed to have consented to such a search on pain of	4
committing a criminal offense. 136 S. Ct. at 2185-86. Our Supreme Court has	5
accordingly declared that “[i]mplied consent laws can no longer provide that a driver	6
impliedly consents to a blood draw.” State v. Vargas, 2017-NMSC-029, ¶ 22, 404	7
P.3d 416. Voluntary consent to a blood draw, however, continues to serve as an	8
exception 	to 	the 	warrant 	requirement. 	See 	Birchfield, 	136 	S. 	Ct. 	at 	2186.	9
Furthermore, a warrantless breath test incident to a lawful DUI arrest is still	10
constitutionally permissible, and consent remains implied in such circumstances. Id.	11
at 2185; Vargas, 2017-NMSC-029, ¶ 19.	12
{3} 	This Court recently addressed the issue presented here—the voluntariness of	13
consent to a warrantless blood draw in light of an ICA advisory. See State v.	14
Franklin, 2019-NMCA___, ¶¶ 15-18, ___ P.3d ___ (No. A-1-CA-36905, Dec. 9,	15
2019). In Franklin, the defendant asserted his consent was per se invalid because he	16
had been threatened with criminal penalties if he did not submit to the blood draw,	17
pursuant to the ICA. Id. ¶ 7. We declined to adopt such a rule and instead held that	18
“when a defendant . . . assert[s] his or her consent to a blood test was involuntary	19
due to a partially inaccurate advisory, the district court must assess the voluntariness	20

4
of the consent in light of the totality of the circumstances, including the improper	1
implied consent advisory.” Id. ¶ 16.	2
II. 	Relevant Background	3
{4} 	In this case, Defendant was not threatened with heightened criminal penalties.	4
Instead, according to officer testimony at the suppression hearing, Defendant was	5
read a portion of the ICA prior to “consenting” to a blood draw. The officer testified	6
that after Defendant performed poorly on field sobriety tests, Defendant was	7
arrested, handcuffed, and placed in the back of the patrol unit. The following	8
exchange, recorded via dashcam video, then occurred.2
9
Officer: 	The Implied Consent Act requires you to submit to	10
a breath test, a blood test, or both, to determine the alcohol or drug	11
content of your blood. After you take one or both of our tests you have	12
a right to choose an additional independent test. . . . Do you agree to	13
take our test?	14
Defendant: 	And which test would that be?	15
Officer: 	It’s going to be a breath test, sir; you’re going to	16
blow into a machine.	17
Defendant: 	And what’s the blood test going to do?	18
Officer: 	The blood test, we’ll get a blood draw, if you wish,	19
and then we’ll send it out and go from there.	20
Defendant: 	Let’s do that.	21
2 The dashcam video was admitted into evidence and played at the suppression
hearing but was not designated as an exhibit on appeal. See Rule 12-212(A) NMRA.
The audio from the dashcam video, however, was captured on the hearing recording
and is quoted herein.

5
Officer: 	You want to do a blood test?	1
Defendant: 	Yeah.	2
Officer: 	Okay.3
3
{5} 	The officer never read Defendant the portion of the ICA relating to the	4
imposition of criminal penalties for refusing chemical testing because Defendant did	5
not refuse testing. The officer took Defendant to the hospital and provided a blood	6
draw kit to the nurse, who performed the blood draw. The officer testified that there	7
is a consent card in the blood draw kit and the officer asked Defendant if he wanted	8
to sign the consent card but he did not. Defendant was cooperative during the blood	9
draw and did not ask to stop the blood draw.	10
{6} 	Defendant and his wife also testified at the suppression hearing. They both	11
testified to Defendant’s mental impairment resulting from an accident in 2010.	12
Defendant additionally testified that he felt he had to take a blood test. On cross	13
examination, when asked, “Did you choose the blood test?” Defendant testified, “I	14
believe so, I don’t know, no.” When Defendant testified that he “was offered both	15
tests,” he again was asked, “But you chose the blood test?” Defendant replied that	16
he “didn’t know what [he] was doing.”	17
3 Defendant cites to another portion of the dashcam audio, in which he claims
another officer told him, “You know you didn’t have a choice, right?” Although we
do not have the corresponding video, it is clear from our review of the record and
the audio that the exchange cited by Defendant occurred between the testifying
officer and a second officer and does not contain the aforementioned quotation.

6
{7} 	The district court took the matter under advisement and issued a letter	1
decision, denying the motion to suppress. The district court reasoned that, under	2
Birchfield, voluntary consent to a blood draw was still a permissible exception to the	3
warrant requirement and such consent was given in this case. Defendant later pled	4
no contest to DUI, reserving only the right to appeal the denial of his motion to	5
suppress.	6
III. 	Voluntariness of Defendant’s Consent to the Blood Draw	7
{8} 	Defendant argues his consent to the blood draw was involuntary—due to the	8
officer’s ICA advisory among other things—and, consequently, the district court	9
erred in denying his motion to suppress. “The voluntariness of a consent to search is	10
a factual question. The government has the burden of proving that a consent to search	11
was given freely and voluntarily.” State v. Anderson, 1988-NMCA-033, ¶ 7, 107	12
N.M. 165, 754 P.2d 542 (citation omitted).	13
Courts utilize a three-tiered analysis when determining voluntariness:	14
(1) there must be clear and positive testimony that the consent was	15
specific and unequivocal; (2) the consent must be given without duress	16
or coercion; and (3) the first two factors are to be viewed in light of the	17
presumption that disfavors the waiver of constitutional rights. Because	18
the third prong is an acknowledgment of our presumption against	19
waiving constitutional rights, we focus on the first two prongs.	20
State v. Davis, 2013-NMSC-028, ¶ 14, 304 P.3d 10 (internal quotation marks and	21
citation omitted). “The question is whether, given the totality of the circumstances,	22
the consent was voluntary.” Anderson, 1988-NMCA-033, ¶ 7; see also Franklin,	23

7
2019-NMCA-___, 	¶ 	16 	(reviewing 	voluntariness 	under 	the 	totality 	of 	the	1
circumstances).	2
{9} 	In undertaking our review, we bear in mind the district court’s role as fact-	3
finder and the deference owed to that court as such.	4
It is for the trial court to weigh the evidence, determine the credibility	5
of witnesses and decide if the evidence is sufficient to clearly and	6
convincingly establish that the consent was voluntary. The appellate	7
court reviews the evidence in the light most favorable to the trial court’s	8
decision and will uphold the decision if it is supported by substantial	9
evidence. The question is whether the trial court’s result is supported	10
by substantial evidence, not whether the trial court could have reached	11
a 	different 	conclusion. 	The 	finding 	of 	facts 	frequently 	involves	12
selecting which inferences to draw. The possibility that on similar facts	13
another trial court may have drawn different inferences and found the	14
consent in this case [in]voluntary does not mean that we must reverse	15
here.	16
Anderson, 1988-NMCA-033, ¶ 8 (citations omitted).	17
A. 	Specific and Unequivocal Consent	18
{10} 	As for the first factor, Defendant argues his consent was equivocal because he	19
refused to sign the consent form in the blood draw kit. The officer testified that	20
Defendant verbally consented to the blood draw, and the dashcam audio confirms	21
this. “Specific and unequivocal consent can be given in a variety of ways[,]”	22
including “an affirmative and direct oral response to an officer’s request to search,”	23
as here. Davis, 2013-NMSC-028, ¶¶ 16-18 (providing that consent may be given	24
orally or in writing).	25

8
{11} 	Defendant nevertheless contends that his subsequent declination to sign the	1
written consent form amounted to a revocation of his earlier consent. Neither the law	2
nor the record supports this contention. Defendant’s apparent “claim that the	3
subsequent refusal to sign a consent form operates to make the prior oral consent a	4
nullity has been rather summarily rejected by the courts[.]” 4 Wayne R. LaFave,	5
Search and Seizure: A Treatise on the Fourth Amendment § 8.2(f), at 133 (5th ed.	6
2012). Instead, a defendant’s refusal to sign a written consent after providing oral	7
consent is among the totality of the circumstances to consider when determining	8
voluntariness. See id. at 134. And although Defendant declined to sign the consent	9
card, there is no indication that his denial was meant to withdraw his earlier consent	10
to the blood draw—indeed, he never asked to stop the test nor requested the	11
alternative breath test. From this, the district court could reasonably infer that	12
Defendant’s declination to put his consent in writing was simply that and did not	13
serve to revoke his prior verbal consent. See State v. Jason L., 2000-NMSC-018,	14
¶ 10, 129 N.M. 119, 2 P.3d 856 (“All reasonable inferences in support of the district	15
court’s decision will be indulged in, and all inferences or evidence to the contrary	16
will be disregarded.” (alterations, internal quotation marks, and citation omitted)).	17
B. 	Consent Without Duress or Coercion	18
{12} 	As for the second factor, Defendant makes various arguments why his consent	19
was the product of duress or coercion, rendering it involuntary. “Coercion involves	20

9
police overreaching that overcomes the will of the defendant.” Davis, 2013-NMSC-	1
028, ¶ 23 (internal quotation marks and citation omitted). “Specific factors indicating	2
coercion include the use of force, brandishing of weapons, threat of violence or	3
arrest, lengthy and abusive questioning, deprivation of food or water and promises	4
of leniency in exchange for consent.” Id.	5
{13} 	Defendant emphasizes the fact that his consent was obtained only after he was	6
arrested and placed in custody. While it is true that Defendant was handcuffed and	7
placed in the patrol unit prior to the officer requesting Defendant to submit to	8
chemical testing, there is no indication in the record that this procedure was	9
uncommon in a DUI arrest or exerted unusual pressure on Defendant. See State v.	10
Carlos A., 2012-NMCA-069, ¶ 22, 284 P.3d 384 (upholding the district court’s	11
determination of voluntary consent where the officer did not exert any unusual	12
pressure on the child, the contact between the officer and the child took place quickly	13
in a public setting, and the contact was not hostile). The officer calmly explained	14
that Defendant was required to submit to chemical testing and eventually requested	15
that Defendant submit to a breath test, to which Defendant’s consent is implied. See	16
Vargas, 2017-NMSC-029, ¶ 19. During the brief exchange, the officer remained	17
congenial and, as captured by the dashcam audio, Defendant felt free to ask questions	18
and express his testing preference for the more-invasive blood draw. See State v.	19
Munoz, 2008-NMCA-090, ¶ 20, 144 N.M. 350, 187 P.3d 696 (concluding that the	20

10
defendant’s compliance with the officer’s requests was not coerced based on the	1
officer’s non-confrontational demeanor). There was no use of force, threats of	2
violence or promises of leniency, lengthy or abusive questioning, or repeated	3
requests for consent. See Davis, 2013-NMSC-028, ¶ 23. Under these circumstances,	4
we are not persuaded by Defendant’s claim that the fact he was under arrest or in	5
custody rendered his consent a product of coercion.4 See State v. Herring, 1966-	6
NMSC-266, ¶¶ 13, 21, 77 N.M. 232, 421 P.2d 767 (explaining that “[a]lthough the	7
fact that consent is given while in custody or under arrest is clearly a factor to	8
consider, 	we 	do 	not 	believe 	that 	such 	a 	situation 	makes 	voluntary 	consent	9
impossible”).	10
{14} 	Defendant also contends his request for and consent to the blood draw was “a	11
mere acquiescence to a claim of lawful authority[,]” Davis, 2013-NMSC-028, ¶ 23	12
(internal 	quotation 	marks 	and 	citation 	omitted), 	because 	the 	officer 	advised	13
4 Likewise the fact that Defendant was asked to submit to chemical testing
without being informed he could refuse testing and without being Mirandized does
not persuade us to the contrary. “We have previously stated that proof of knowledge
of the right to refuse is not required in order to have effective consent.” State v.
Flores, 2008-NMCA-074, ¶ 16, 144 N.M. 217, 185 P.3d 1067 (internal quotation
marks and citation omitted); see also City of Rio Rancho v. Mazzei, 2010-NMCA-
054, ¶¶ 24-25, 148 N.M. 553, 239 P.3d 149 (concluding that a defendant arrested for
DUI was not entitled to receive a Miranda warning prior to being given an implied
consent advisory or chemical testing because the law does not require such warnings
for physical evidence). “Rather, the presence or absence of such knowledge is but
one factor to consider in the matrix to determine whether a consent to search is
voluntary.” Flores, 2008-NMCA-074, ¶ 16.

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Defendant that he was required to submit to chemical testing, per the ICA. We first	1
observe that the officer’s advisory in this case was, at most, partially inaccurate—	2
i.e., breath tests are still lawful searches incident to DUI arrests, see Vargas, 2017-	3
NMSC-029, ¶ 19, and there is no indication in the record that Defendant was	4
threatened with what Birchfield found constitutionally offensive—i.e., heightened	5
criminal penalties for refusing to submit to a blood test, see 136 S. Ct. at 2186. See	6
State v. Shaulis-Powell, 1999-NMCA-090, ¶¶ 11-12, 127 N.M. 667, 986 P.2d 463	7
(citing LaFave for the proposition that “it is not coercion for an officer to accurately	8
inform the individual of his precise legal situation” and noting that an assertion by	9
an officer that he could obtain a warrant does not invalidate a subsequent consent	10
where there is probable cause to support the warrant (alteration, internal quotation	11
mark, and citation omitted)). Further, to the extent that Defendant argues his consent	12
was per se involuntary due to the officer’s advisory, this approach was necessarily	13
rejected in Franklin, 2019-NMCA___, ¶ 16, by our application of the totality of	14
circumstances test and would run contrary to our well-established approach to	15
determining voluntariness, see Davis, 2013-NMSC-028, ¶¶ 13, 23 (examining the	16
totality of circumstances, including a claim of lawful authority, in determining	17
voluntariness); Shaulis-Powell, 1999-NMCA-090, ¶¶ 9, 12 (same). Here, the district	18
court could reasonably determine that the advisory, even if partially inaccurate, was	19
overcome by other circumstances, including the officer’s subsequent inquiry to	20

12
Defendant whether he agreed to a test—in particular, a breath test—and Defendant’s	1
selection of a blood draw instead.	2
{15} 	Defendant also contends that his mental impairment supported his claim of	3
involuntary consent. While Defendant testified that due to an accident in 2010, he is	4
“not all there,” a review of the dashcam audio shows that Defendant asked pointed	5
questions about the testing, clearly chose the blood test upon inquiry by the officer,	6
and at no point indicated he did not understand the officer or what was going on. Cf.	7
State v. Gutierrez, 2011-NMSC-024, ¶¶ 16, 21, 150 N.M. 232, 258 P.3d 1024	8
(observing that the child never indicated any problems with comprehension and gave	9
detailed responses in determining that there was a knowing, intelligent, and	10
voluntary waiver of Miranda rights). The district court’s letter decision indicates it	11
gave little, if any, weight to the evidence about Defendant’s impairment or his	12
testimony that he did not know what he was doing and he had no choice but to take	13
a blood test. And this was well within the district court’s discretion. See State v.	14
Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164 P.3d 57 (“recognizing that the	15
district court has the best vantage from which to resolve questions of fact and to	16
evaluate witness credibility” and “deferring to the district court’s factual findings so	17
long as substantial evidence exists to support those findings”).	18
{16} 	In sum, viewing the evidence in the light most favorable to the district court’s	19
ruling and considering the totality of the circumstances, we hold substantial evidence	20

13
supports a finding that Defendant’s will was not overborne and his consent to the	1
search was voluntary. We therefore affirm the district court’s denial of Defendant’s	2
motion to suppress the blood evidence.	3
INEFFECTIVE ASSISTANCE OF COUNSEL	4
{17} 	Defendant next argues that his “plea was not knowing and voluntary because	5
he received ineffective assistance of counsel and the judge conducted an insufficient	6
colloquy.” Defendant acknowledges this issue was not reserved in his plea for	7
appellate review. See Rule 5-304(A)(2) NMRA (setting out procedure for reserving	8
appellate 	issues 	in 	a 	conditional 	plea 	agreement). 	More 	critically, 	however,	9
Defendant’s arguments are directed at the validity of his plea, and there is no	10
indication in the record that Defendant challenged his plea in district court through	11
a motion to withdraw or otherwise. As this Court repeatedly has held, “if a defendant	12
fails to file a motion to withdraw a plea in the district court, he or she cannot attack	13
the plea for the first time on direct appeal” and instead must seek relief in collateral	14
proceedings. State v. Andazola, 2003-NMCA-146, ¶ 25, 134 N.M. 710, 82 P.3d 77;	15
see also State v. Dominguez, 2007-NMSC-060, ¶ 14, 142 N.M. 811, 171 P.3d 750	16
(holding that the defendant failed to preserve his objection to his guilty plea because	17
he failed to move to withdraw his plea in district court). In sum, we do not review	18
Defendant’s claims relating to the validity of his plea, including the contention that	19

14
he received ineffective assistance of counsel; pursuit of these claims must occur in	1
collateral proceedings.	2
CONCLUSION	3
{18} 	For the foregoing reasons, we affirm.	4
{19} 	IT IS SO ORDERED.	5
_________________________________	6
JENNIFER L. ATTREP, Judge	7
WE CONCUR:	8
_________________________________	9
JULIE J. VARGAS, Judge	10
_________________________________	11
KRISTINA BOGARDUS, Judge	12