December 27, 2011 – State of New Mexico v. Candace S., No. 30,331

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	DECEMBER 27, 2011
NO. 30,331
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CANDACE S.,
Child-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
William C. Birdsall, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM
for Appellee
Jacqueline L. Cooper, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
FRY, Judge.
{1} 	Candace S., a minor at the relevant time, appeals the district court’s denial of
her motion to suppress the results of her field sobriety tests (FSTs) and breath alcohol
tests. 	She argues that FSTs are searches that must be supported by a warrant, an
exception to the warrant requirement, or voluntary consent. She further argues that
the Children’s Code required the officer investigating her traffic violation to advise
her of her right to remain silent and her right to withhold consent to the FSTs and the
breath tests. Because the officer did not so advise her, Candace maintains that her
consent to the FSTs and breath tests was involuntary.
{2} 	We conclude that FSTs must be supported by reasonable suspicion, that there
is no requirement for an officer to advise a minor of a right to withhold consent, and
that failure to advise a minor of a right to remain silent does not render FSTs
inadmissible. We therefore affirm the district court’s denial of Candace’s suppression
motion.
BACKGROUND
{3} 	While on patrol in September 2009, Officer Brian Kinley observed a vehicle
swerving across the white line on the roadway and traveling at least ten miles under
the posted speed limit. He stopped the vehicle and made contact with Candace, who

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was driving the car. He asked Candace for her driver’s license, and Candace said that
she had left it at home. He told the occupants that he smelled alcohol in the car, and
a passenger said that she had been drinking. Officer Kinley asked Candace to step out
of the car and noticed that Candace smelled of alcohol and that she was weaving as
she walked away from the car. 	Officer Kinley asked Candace if she had been
drinking, and she said that she had not. He asked her again after he administered an
FST, and she said that she had had “one can.”
{4} 	Officer Kinley administered additional FSTs, during which Candace swayed,
stumbled, and failed to follow directions. Officer Kinley asked Candace if she wanted
to take a portable breath test and, without waiting for an answer, instructed her how
to provide a breath sample. The portable breath test yielded a result of .153. Officer
Kinley estimated that the time from contacting Candace in her car to her arrest was
about five minutes. 	He then transported Candace to the New Mexico State Police
office, where he obtained two breath samples from the Intoxilyzer testing machine,
which registered .14 and .16. Officer Kinley did not advise Candace of her right to
remain silent prior to this time.
{5} 	The State filed a delinquency petition against Candace alleging that she drove
while under the influence of intoxicating liquor (DWI), failed to maintain her traffic
lane, and drove without a valid license. Candace’s attorney filed a motion to suppress

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all statements made by Candace and the results of the FSTs and the breath tests. As
grounds for the motion, Candace asserted that the New Mexico Constitution and
NMSA 1978, Section 32A-2-14 (2009), of the Children’s Code provide broad
protections to children during police questioning and that, as a result, Candace’s
unwarned statements to Officer Kinley should be suppressed. 	In addition, Candace
argued that the greater protections provided by Article II, Section 10 of the New
Mexico Constitution and by State v. Javier M., 2001-NMSC-030, 131 N.M. 1, 33 P.3d
1, compelled the suppression of the FSTs and breath tests because Candace’s consent
to the tests was not voluntary.
{6} 	In its response to the suppression motion, the State agreed that “any statements
of [Candace] made in response to Officer Kinley’s questioning should be suppressed.”
However, the State opposed suppression of the FST and breath test results.
Following an evidentiary hearing, the district court suppressed all statements made by
Candace, whether in response to Officer Kinley’s questions or volunteered, but it
further determined that the FST and Intoxilyzer breath test results were admissible.
Candace entered a conditional plea admitting to the allegations in the delinquency
petition while reserving her right to appeal the denial of her suppression motion. This
appeal followed.

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DISCUSSION
{7} 	Candace makes one overarching argument with several sub-parts. Her general
argument is that the district court should have suppressed the FST and breath test
results because Officer Kinley’s failure to advise her of her right to remain silent and
of her right to refuse the testing rendered her consent to the tests involuntary and
invalid. In support of this argument, Candace further argues that: (1) FSTs violate
the right against self-incrimination under Article II, Section 15 of the New Mexico
Constitution; (2) FSTs constitute a search and, under Section 32A-2-14 and the
holding of Javier M., Candace should have been advised of her right to refuse consent
before being asked to perform FSTs; and (3) Candace’s consent to the breath tests was
involuntary.
Standard of Review
{8} 	The same standard of review applies to all of Candace’s arguments. 	“In
reviewing an order of suppression, we defer to the district court’s findings of fact that
are supported by substantial evidence, and we review the district court’s application
of the law to the facts de novo.” State v. Randy J., 2011-NMCA-105, ¶ 10, ___ N.M.
___, ___ P.3d ___, cert. denied, 2011 NMCERT 009, ___ N.M. ___, ___ P.3d ___.
In the present case, the facts are undisputed, so we review the district court’s order to

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determine whether it was correct as a matter of law. See id. In addition, we review
the district court’s interpretation of Section 32A-2-14 de novo. Id.
Article II, Section 15 of the New Mexico Constitution and the Right Against Self-
Incrimination
{9} 	Candace argues that the FSTs violated her right against self-incrimination,
which is guaranteed by Article II, Section 15 of the New Mexico Constitution, and
that Article II, Section 15 provides broader protections than the Fifth Amendment to
the United States Constitution. 	We agree with the State that Candace failed to
preserve this argument.
{10} 	Our Supreme Court recently clarified what is required in order to preserve an
argument that the state constitution provides greater protection than the federal
constitution in State v. Leyva, 2011-NMSC-009, ¶ 49, 149 N.M. 435, 250 P.3d 861.
The Court stated:
Where a state constitutional provision has previously been interpreted
more expansively than its federal counterpart, trial counsel must develop
the necessary factual base and raise the applicable constitutional
provision in trial court. 	Where the provision has never before been
addressed under our interstitial analysis, trial counsel additionally must
argue that the state constitutional provision should provide greater
protection, and suggest reasons as to why, for example, a flawed federal
analysis, structural differences between state and federal government, or
distinctive state characteristics.
Id. (internal quotation marks and citation omitted). 	In the present case, Candace
acknowledges that Article II, Section 15 has never been addressed under our

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interstitial analysis because, as she notes, it “has been interpreted in lock step with the
Fifth Amendment.” 	Yet she failed in the district court to suggest reasons why the
provision should be interpreted as providing greater protection than the federal
constitution. Indeed, in the district court, the only mention of Article II, Section 15
was Candace’s statement in her written suppression motion that she “relie[d] upon the
New Mexico Constitution, Article 2 [sic], Sections 14, 15, and 18 . . . to support the
proposition that children in New Mexico are provided broader and greater protections
during police questioning than are provided to children . . . under the United States
Constitution.” She did not elaborate on this conclusory statement in either her written
motion or her argument at the hearing on her motion.
{11} 	Even if Candace had properly preserved her argument, our decision in Randy
J. disposes of her contentions. In that case, we concluded that a child’s performance
during FSTs is not a testimonial communication subject to suppression under the Fifth
Amendment’s 	privilege 	against 	self-incrimination 	or 	in 	accordance 	with 	the
protections provided by Section 32A-2-14(D) of the Children’s Code. 	Randy J.,
2011-NMCA-105, ¶¶ 14, 17-18. Because our courts have never interpreted Article
II, Section 15 differently from Fifth Amendment case law, the same holding would
apply in the present case.

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Prerequisite to Performance of FSTs
{12} 	Candace argues that FSTs are searches implicating constitutional protections
and that they cannot be undertaken without establishing an exception to the warrant
requirement or voluntary consent. Apparently assuming that there were no warrant
exceptions established, Candace then contends that, consistent with Section 32A-2-14
and Javier M., a child must be told that consent to FSTs may be withheld. She further
maintains that because Officer Kinley did not tell her this, any consent she may have
given was involuntary.
{13} 	We begin by considering Candace’s argument that FSTs constitute a search
with constitutional ramifications. Candace summarizes cases from other jurisdictions
holding that FSTs constitute searches and notes that some of these jurisdictions
require a showing of probable cause while some require only reasonable suspicion to
justify FSTs. 	See, e.g., People v. Carlson, 677 P.2d 310, 316-18 (Colo. 1984) (en
banc) (holding that FSTs constitute searches that must be supported by probable
cause); Blasi v. State, 893 A.2d 1152, 1164, 1168 (Md. Ct. Spec. App. 2006) (holding
that FSTs constitute a search subject to a showing of reasonable suspicion). Other
cases hold that FSTs constitute an expansion of an investigatory detention, rather than
a search, and that they require the articulation of reasonable suspicion to justify the
expansion. See, e.g., State v. Little, 468 A.2d 615, 617-18 (Me. 1983) (determining

8
that FSTs are part of an investigatory stop that must be based on reasonable
suspicion); State v. Gray, 552 A.2d 1190, 1194-95 (Vt. 1988) (same).
{14} 	We need not decide whether FSTs constitute a search or an expansion of an
investigatory detention. 	Regardless of how they are labeled, FSTs implicate
constitutional protections under the Fourth Amendment to the United States
Constitution and Article II, Section 10 of the New Mexico Constitution. 	Candace
focuses on Article II, Section 10 and, as a result, we limit our analysis to that
constitutional provision.
{15} 	Our Supreme Court’s decision in Leyva provides the framework for our
discussion. Although that case involved an officer’s expansion of an investigatory
detention with questioning unrelated to the initial traffic stop, the analysis is
applicable to any search or seizure conducted in connection with any investigatory
detention. 2011-NMSC-009, ¶¶ 4-5, 10. In Leyva, the Court reassessed its decision
in State v. Duran, 2005-NMSC-034, 138 N.M. 414, 120 P.3d 836, and concluded that
Duran no longer represented proper Fourth Amendment analysis in light of recent
United States Supreme Court precedent. However, the Court further determined that
the Duran analysis continues to be proper when a court assesses searches and seizures
under Article II, Section 10. Leyva, 2011-NMSC-009, ¶¶ 2-3.

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{16} 	Duran considered when an officer’s questions about travel plans during a traffic
stop are reasonable under the Fourth Amendment. 	Leyva, 2011-NMSC-009, ¶ 11.
The Duran Court applied the two-part test first set out in Terry v. Ohio, 392 U.S. 1
(1968), for determining the propriety of a detention expansion. Leyva, 2011-NMSC-
009, ¶ 11. The Terry test considers “[(1)] whether the officer’s action was justified
at its inception, and [(2)] whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.” 392 U.S. at 20.
{17} 	The Court in Leyva determined that the Terry-type test had been replaced in
Fourth Amendment jurisprudence with a bright-line test holding that if the initial stop
was lawful, officers may ask questions unrelated to the initial reason for the stop “so
long as they do not measurably extend the length of the stop.” Leyva, 2011-NMSC-
009, ¶ 15 (internal quotation marks and citation omitted). However, in considering
the propriety of a similar expansion of a traffic stop under the New Mexico
Constitution, Leyva held that the two-part Terry test should still be utilized. Leyva,
2011-NMSC-009, ¶ 55 (stating that “Duran’s two-part analysis, adhering to the scope
and duration requirements set forth in 	Terry, best protects the right against
unreasonable searches and seizures under Article II, Section 10 of the New Mexico
Constitution”). The Court concluded that “[t]he overall reasonableness of the stop
continues to be determined [under the New Mexico Constitution] by balancing the

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public interest in the enforcement of traffic laws against an individual’s right to
liberty, privacy, and freedom from arbitrary police interference.” 	Leyva, 2011-
NMSC-009, ¶ 55 (internal quotation marks and citation omitted).
{18} 	Applying this analysis to FSTs, we hold that an officer may administer FSTs
if the officer has developed independent reasonable suspicion that would support the
extension of the traffic stop to conduct the FSTs. 	There is a “compelling public
interest in eradicating DWI occurrences and the potentially deadly consequences” of
that crime. City of Santa Fe v. Martinez, 2010-NMSC-033, ¶ 13, 148 N.M. 708, 242
P.3d 275. In accordance with Leyva, we must weigh this compelling interest against
the intrusion of FSTs that assess the physical performance of a suspected drunk driver.
In our estimation, such an intrusion is warranted if the investigating officer has
reasonable, articulable facts upon which to base a suspicion that the driver in question
may be impaired. See State v. Williamson, 2000-NMCA-068, ¶¶ 8, 9, 129 N.M. 387,
9 P.3d 70 (explaining that an officer may expand an investigatory detention related to
a traffic stop if the officer “has a reasonable and articulable suspicion that the driver
is impaired” and that the administration of FSTs may reasonably be a part of this
investigation); see also Randy J., 2011-NMCA-105, ¶¶ 33-34 (holding that, under
Article II, Section 10, the officer had reasonable suspicion to expand a traffic stop into

11
an investigation of the possibility that the minor driver had been driving while
impaired).
{19} 	We find support for our determination in cases from other jurisdictions that
have reached a similar conclusion. For example, in State v. Superior Court, 718 P.2d
171, 176 (Ariz. 1986) (in banc), the Arizona Supreme Court weighed the intrusion of
FSTs against the public’s interest in removing drunk drivers from the state’s
highways. Consistent with Terry, which involved an officer conducting a pat-down
search based on reasonable suspicion that the suspect might be armed, see 392 U.S.
at 6-7, the Arizona court concluded that “the threat to public safety posed by a person
driving under the influence of alcohol is as great as the threat posed by a person
illegally concealing a gun.” Superior Court, 718 P.2d at 176. Similarly, the Vermont
Supreme Court balanced the intrusion of FSTs against law enforcement interests and
determined that the “minimal level of intrusion” of FSTs is “clearly outweighed by
the strong law enforcement interest in attempting to keep a suspected drunk driver off
the roads.” Gray, 552 A.2d at 1195; see Little, 468 A.2d at 617-18 (holding that FSTs
may be conducted if they are supported by reasonable suspicion); State v. Royer, 753
N.W.2d 333, 340 (Neb. 2008) (same); People v. Walter, 872 N.E.2d 104, 114 (Ill.
App. Ct. 2007) (same).

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{20} 	Given our disposition of this issue, we reject one premise underlying Candace’s
argument—that administration of FSTs must be supported by a warrant, an exception
to the warrant requirement, or valid consent. Instead, an officer may administer FSTs
if the officer has reasonable suspicion that a driver was driving impaired. We turn
now to Candace’s argument that she was entitled to additional protections due to her
status as a minor.
Application of Section 32A-2-14 to FSTs
{21} 	Candace relies on Section 32A-2-14 to argue that Officer Kinley was required
to advise her of her right to remain silent and of her right to refuse consent to the
FSTs. Because Officer Kinley did not give Candace these warnings, she maintains
that the district court should have excluded the FST results from evidence.
{22} 	We begin our analysis with a review of the applicable provisions of Section
32A-2-14. In relevant part, that statute provides:
A. 	A child subject to the provisions of the Delinquency Act is
entitled to the same basic rights as an adult, except as otherwise provided
in the Children’s Code, including rights provided by the Delinquency
Act, except as otherwise provided in the Children’s Code [NMSA 1978,
§§ 32A-1-1 to -21 (1993, as amended through 2009)].
. . . .
C. 	No person subject to the provisions of the Delinquency Act
who is alleged or suspected of being a delinquent child shall be
interrogated or questioned without first advising the child of the child’s
constitutional rights and securing a knowing, intelligent and voluntary
waiver.

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D. 	Before any statement or confession may be introduced at a
trial or hearing when a child is alleged to be a delinquent child, the state
shall prove that the statement of confession offered in evidence was
elicited only after a knowing, intelligent and voluntary waiver of the
child’s constitutional rights was obtained.
These provisions require that any child subject to an investigatory detention be
advised of his or her “right to remain silent and that anything they say can be used
against [the child].” 	Javier M., 2001-NMSC-030, ¶ 41. In addition, under Section
32A-2-14(D), if a child is not so advised, “any statement or confession obtained as a
result of the detention or seizure is inadmissible in any delinquency proceeding.”
Javier M., 2001-NMSC-030, 	¶ 1. 	The State does not dispute that Candace was
subject to an investigatory detention when Officer Kinley stopped her car and that he
failed to advise her of the rights specified in Javier M.
{23} 	Candace contends that, consistent with Section 32A-2-14 and Javier M., any
child subject to an investigatory detention must also be advised that he or she has the
right to deny consent to the performance of FSTs. 	She argues that a request to
perform FSTs is a question like any other and, as a result, if a child is not advised of
his or her right to decline the request and/or if the state fails to prove that the child’s
consent was voluntary, the results of the FSTs are inadmissible.
{24} 	Candace’s argument boils down to the contention that the holding in Javier M.
should be expanded. She maintains that, in addition to advising a child of the right

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to remain silent and of the fact that anything said can be used against the child, an
officer detaining a child must also advise the child of the right to withhold consent to
FSTs.
{25} 	Our Supreme Court’s decision in Javier M. does not support Candace’s
contention. In that case, the Court interpreted Section 32A-2-14(C) as requiring that
“children who are subject to investigatory detentions are statutorily entitled only to be
warned of their right to remain silent and that anything they say can be used against
them.” 	Javier M., 2001-NMSC-030, ¶ 41 (emphasis added). Thus, we do not read
Javier M. as requiring any additional warnings to a child, such as a warning that the
child need not consent to FSTs.
{26} 	In addition, the Court in Javier M. made it clear that Section 32A-2-14 “only
protects against a child’s statements which are made during an investigatory detention
in response to a police officer’s questioning.” 	Javier M., 2001-NMSC-030, ¶ 40
(emphasis added). It is also clear that a child’s “lack of muscular coordination during
the [FSTs] is not a statement subject to suppression under Section 32A-2-14(D).”
Randy J., 2011-NMCA-105, ¶ 18. Because Section 32A-2-14 was narrowly drawn
to protect a child’s statements and because a child’s physical conduct in an FST is not
a statement, it follows that Section 32A-2-14 does not require a police officer to
advise a child that he or she may decline to perform FSTs. Indeed, it may well be a

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disservice to a child to advise him or her in this way because a refusal to perform
FSTs may be admissible in evidence. See State v. Wright, 116 N.M. 832, 835-36, 867
P.2d 1214, 1217-18 (Ct. App. 1993) (holding that admission of evidence that the
defendant refused to take an FST did not violate the right to be free of self-
incrimination).
{27} 	Furthermore, the Court in Javier M. interpreted Section 32A-2-14 as a very
narrowly drawn statutory protection. 	The Court noted that Subsection (C) of the
statute “is an exception to Subsection (A)’s general recognition that children are
entitled to the same basic rights as adults.” Javier M., 2001-NMSC-030, ¶ 32 (internal
quotation marks and citation omitted). Thus, with the exception of this very limited
statutory requirement to advise a child of the right to remain silent and of the
consequences of waiving that right, a child’s constitutional rights are the same as an
adult’s rights. 	See id. ¶ 42 (noting that “in enacting Section 32A-2-14(C), the
Legislature is providing juveniles with a separate statutory right, not codifying a
constitutional mandate”). Candace has not directed us to any authority holding that
an adult must be advised that he or she need not consent to FSTs, and we conclude
that there is no constitutional mandate requiring an officer to so inform either an adult
or a child. Cf. McKay v. Davis, 99 N.M. 29, 31, 653 P.2d 860, 862 (1982) (explaining
that “there is no constitutional right to refuse to take a chemical test” for the presence

16
of alcohol). We therefore reject Candace’s argument that the holding in Javier M.
should be expanded to require a child to be advised that consent to FSTs may be
withheld.
Application of Holding to the Facts
{28} 	Having disposed of Candace’s arguments with respect to the FSTs, we apply
our determinations to the facts of this case. Officer Kinley had reasonable suspicion
to administer FSTs to Candace because he observed her erratic driving, smelled the
odor of alcohol on her person, and saw her sway as she walked to the back of her car.
See State v. Walters, 1997-NMCA-013, ¶ 26, 123 N.M. 88, 934 P.2d 282 (stating that
an officer had reasonable suspicion to investigate further when he detected the odor
of alcohol). Officer Kinley had no obligation to advise Candace of a right to refuse
FSTs in order to administer the FSTs. And, while Section 32A-2-14 required Officer
Kinley to advise Candace of her right to remain silent and of the consequences of her
waiver of that right, his failure to explain this to her did not render the FSTs
inadmissible because her performance of the FSTs did not constitute statements
subject to suppression. Therefore, we affirm the district court’s denial of Candace’s
motion to suppress the results of the FSTs.

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Admissibility of Breath Test Results
{29} 	Candace’s final argument is that Officer Kinley had to advise her of her right
to refuse the portable breath test. In support of this contention, she relies on the same
authorities and logic she relied on in arguing that Officer Kinley was required to
advise her of her right to withhold consent to the FSTs. For the same reasons that we
rejected her argument with respect to the FSTs, we also reject her argument regarding
the portable breath test.
{30} 	The district court stated that the results of the portable breath test would not be
admissible. However, Candace argues that the Intoxilyzer breath tests taken at the
police station after her arrest were “tainted by the earlier breath test which was a
product of involuntary consent.” 	We are not persuaded by this argument. 	Before
Officer Kinley transported Candace to the police station for the Intoxilyzer breath
tests, he had probable cause, even without the portable breath test, to arrest her for
DWI in light of her performance on the FSTs, her erratic driving, and the odor of
alcohol. State v. Granillo-Macias, 2008-NMCA-021, ¶ 12, 143 N.M. 455, 176 P.3d
1187 (holding that “the smell of alcohol emanating from [the d]efendant, [his] lack of
balance at the vehicle, and the manner of [his] performance of the FSTs” constituted
probable cause to arrest him for DWI). As a result, the Intoxilyzer breath test results

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obtained at the station were not rendered inadmissible by anything that preceded them.
CONCLUSION
{31} 	For the foregoing reasons, we affirm the district court’s order denying
Candace’s motion to suppress the results of the FSTs and the Intoxilyzer breath tests.
{32} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
LINDA M. VANZI, Judge