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State v. Gamlen, New Mexico Court of Appeals, 28,215, Filed June 17, 2009 State v. Willie, New Mexico Supreme Court, 30,909, Filed June 24, 2009 State v. Downey, New Mexico Supreme Court 30,263, (Maes) Oct 16, 2008 Retrograde extrapolation evidence is admissible when the expert makes certain assumptions; whether the assumptions are true goes to the weight of the evidence, not admissibility, which is established because Defendant did not challenge the reliability of retrograde extrapolation as a scientific technique; Hughey does not compel a different result because in that case, appellate court affirmed the exclusion of evidence as within the discretion of the trial court and here court is affirming the admission of evidence; nor does Day compel a different result because in that case the only holding was that retrograde extrapolation was necessary, not that it required certainty in the underlying variables and the discussion of the variables in that case was dicta; Defendant was not denied a speedy trial where some delay was caused by Defendant’s medical condition and court scheduling problems, Defendant did not raise his right until just before trial; and there was no undue prejudice (Bustamante, concurring in the speedy trial analysis, but dissenting as to the retrograde extrapolation and would hold, as to that issue, that the proponent of the evidence must show a proper application of the scientific technique). Reversed on the ground that there being no evidence on when Defendant stopped drinking in relation to the BAC test, there was no way to know whether he was pre-absorbtive, at peak, or post-absorbtive and therefore no way to relate back a BAC to the time of driving; moreover, the admission of the test results was harmful and Defendant was entitled to a new trial because the evidence of retrograde extrapolation tainted an alternative of a general verdict and therefore the verdict needed to be set aside. The court does not throw out retrograde extrapolation, however. Specifically, the court assumes without deciding that "retrograde extrapolation is a valid scientific method and focus[es] on Defendant's claim that the evidence was insufficient to permit its reliable application under the present factual circumstances." State v. Marquez, CA 27,735, Jul 28, 2008 Defendant’s appearing for his metro court trial in military uniform, contrary to the instructions of his attorney, and his leading the court to believe that he could not go home to get a change of clothes in time for trial was an exceptional circumstance that allowed the metro court to grant a 30-day extension on the 182-day rule; sufficient evidence supported the DWI conviction where there was evidence of bad driving and other indications of drinking and driving; admission of evidence of 90% chance that Defendant was over the legal limit based on field sobriety tests including HGN was error, but it was harmless under the facts of this case where fact of DWI was supported by abundant evidence, Defendant’s denials were not plausible, and Defendant was not charged with per se offense (Kennedy, dissenting on the ground that scientific evidence of guilt of another offense than that charged was harmful). State v. Aleman, CA 25,224 & 25,225, Jun 30, 2008 Drug Recognition Evaluator (DRE) Protocol pursuant to which an trained police officer examines DWI suspects in ordered way was not expert testimony based on scientific knowledge and trial court did not err in ruling it admissible; even if one aspect of it was scientific (HGN), that aspect was satisfactorily proved in this case; even if whole Protocol was deemed scientific, there was sufficient evidence that it was reliable; that DRE was unable to observe one or two elements did not render testimony inadmissible as a matter of law. State v. Pacheco, CA 26,356 (Wechsler) Feb 12, 2008 When a defendant is charged with felony DWI and wants to challenge prior convictions, he or she must produce evidence of invalidity before the state is required to prove validity because this is a collateral attack; Defendant’s complaint that the municipal judge did not follow formal plea-taking procedures did not amount to fundamental error because the municipal judge testified that it was his practice to advise defendants of required issues and Defendant did not present any specific evidence of why her pleas were involuntary or not made on the basis of constitutionally required advisements. State v. Lewis, CA 27,316 (Sutin) Feb 6, 2008 Colorado conviction for driving while ability impaired can be used to enhance NM DWI sentence because an amendment to the DWI law defined conviction under this section to mean a conviction by any jurisdiction in the US that is similar to our DWI law and Colorado’s law fits that definition. State v. Willie, CA 26,116 (Fry) Dec 17, 2007 State failed to lay a sufficient foundation for a breath test when officer did not ascertain, either by looking in Defendant’s mouth or asking him, that Defendant did not have anything in his mouth at the beginning of the 20-minute deprivation period; strict compliance with this regulation that goes to accuracy of test is required. State v. Hughey, CA 24,732 (Fry) Jun 27, 2005, Court of Appeals affirmed that trial court was within its discretion in excluding the relation back evidence in this case after hearing two experts testify about relation back evidence, one saying that body metabolizes a certain amount of alcohol per hour and the other saying that there are many factors involved such that he could not say what Defendant’s BAC was at the time of driving, Supreme court reversed the trial court on the ground that the dispute in the evidence between the State’s and Defendant’s experts is a question of fact that cannot be decided by the judge in a pretrial motion and instead should be determined by the jury at trial, or perhaps at least by the judge at trial, which is the appropriate time to make decisions about whether to exclude evidence on the grounds of prejudice, confusion or waste of time. The court remanded the case to the trial court. State v. Lizzol,
CA 25,794 (Bustamante), Aug 28, 2006, Where metro court suppressed evidence and then dismissed the case because without the suppressed evidence, the judge stated that there would be reasonable doubt, the order dismissing was a final judgment that could be appealed; double jeopardy did not prevent appeal because the suppression was arguably a question of trial error and the judgment dismissing did not acquit defendant; metro court correctly ruled that police witness who knew nothing about certification of breath test machine was not qualified witness to testify that it was properly certified and small sticker about which the officer knew little apart that it was a reduction of the actual certificate was insufficient proof that machine was properly certified (Robinson, specially concurring on the ground that the state should have proceeded under the alternative DWI that did not require breath test results). Rev’d on the ground that double jeopardy precluded the State’s appeal (the Court reaching the merits of the qualification issue in the next case - Martinez, below); Court clarified that State may NOT appeal the dismissal of a case based on a judge's decision to exclude evidence for lack of foundation. HELD: double jeopardy principles do not allow the State to appeal in such circumstances. Because of this holding, court did not reach the issue of whether the judge's evidentiary ruling in this case was in error (see State v. Martinez, below). State v. Martinez, SC 30,122 (Chavez) Whether a breath testing machine is certified is a foundational matter that is handled under Rule 11-104(A), not (B), so the relevant question is whether the judge in making that preliminary determination of admissibility can rely on evidence that may be inadmissible under the rules of evidence, and the judge can, so that testimony by a police officer that the officer saw a sticker indicating that the scientific laboratory division certified a particular machine and that the certification is still current on the date of the test suffices to allow breath test results into evidence; a defendant may challenge that certification if desired, but no further foundation need be laid; certification is not part of the elements of DWI; because Defendant did not raise confrontation in the trial court, Court does not reach that issue. Brendlin v. California A passenger as well as a driver has the right to challenge the legality of a police officer’s decision to stop a car, State v. Diaz State v. Day, New Mexico Court of Appeals, 25,290, July 12, 2006 In a case where an alcohol test is right on the legal
limit of .08, but the test was taken some time after the actual driving, an
expert might be required to relate the test results to the subject’s alcohol
level when he was behind the wheel. State v. Worrick State v. Duarte, CA 25,878 (Sutin) Dec 7, 2006 Maso,
v. State Taxation and Revenue Dept. Where constitutional issues arising out of driver's license revocation are not among the issues statutorily required to be considered and therefore there was no hearing before a hearing officer and no hearing procedure to review on appeal, a district court may still consider the constitutional issues pursuant to its original jurisdiction; court expresses preference for filing solely an appeal, rather than an appeal and petition for mandamus, for example, but states that original jurisdiction issues should be separately noted in the statement of issues. State
v. Wildgrube Vehicular homicide. — The trial court could reasonably conclude that vehicular homicide in violation of 66-8-101 NMSA 1978 was a serious violent offense where, in addition to other evidence, it considered information contained in the presentence report that the vehicular homicide was the fourth time that the defendant had been arrested for an alcohol-related driving offense and that he had two previous convictions for DWI. State
v. Calvert, Legislature's
use of word “consecutive” in establishing mandatory minimum DWI
penalties does not preclude the award of presentence confinement credit, even
if the award of credit means that a defendant will spend, for example, 16 hours
of a 48 hour sentence when he or she is arrested and then 32 hours after sentencing,
or 89 days presentence and then one day (instead of a consecutive 90) after
sentencing; court follows the weight of authority in other jurisdictions to
reach its result and is also persuaded by the fact that legislature made the
award of credit mandatory for a first offense and fourth offense (Judge Wechsler,
dissenting on the ground that the legislature wanted to make DWI penalties more
punitive and the award of credit would destroy consecutiveness). City of Albuquerque v. One 1984 White Chevy New Mexico Supreme Court SC 27,067, Apr 24, 2002 Court upholds Albuquerque City ordinance that permits forfeiture of vehicles used by repeat DWI offenders who have had their licenses revoked. Ordinance does NOT constitute double jeopardy in that it is remedial and fact that owners or holders of security interests must be shown to have consented to the unlicensed person's driving does not show that the ordinance is punitive. Because taking away the instrumentality of the crime is remedial, it is proper to forfeit a vehicle that is knowingly used to create danger on highways. State
v. Martinez Evidence supported defendant's conviction for DWI by driving with BAC of .08 when Defendant's BAC one and a half hours after driving was .09 and defendant said he drank 3 hours before driving, he failed field sobriety tests, he acted drunk, he put his hands and keys out the window when he was stopped and gave a false name. State v.
Lasworth Trial court decision to exclude Horizontal Gaze Nystazmus (HGN) evidence is affirmed where State did not present a medical or biological or other expert who could explain how and why HGN worked and also explain why testing results were not due to coincidence; opinion contains thorough discussion of HGN as it applies to Torres/Alberico standards. State v. Casteneda New Mexico Court of Appeals Docket No. 21,091 April 26, 2001 Certiorari denied July 11, 2001. Double jeopardy did not preclude Defendant's conviction and sentences for both DWI and child abuse when the child abuse could have been based on not restraining kids in child safety seats (even though jury acquitted of failure to restrain) and when statutes have different purposes anyway. Double jeopardy (single unit of prosecution) did preclude multiple convictions and sentences for all the kids in the car because, since there was no injury or death, the child abuse statute proscribes the acts, not the results, and Defendant committed only one act of child abuse n her driving in the manner she did; substantial evidence supported convictions. State v. Coyazo New Mexico Court of Appeals Docket No. 21,265 2001-NMCA-018, 40 N.M. St. B. Bull. 19, 25 P.3d 267, 2001 N.M. App. LEXIS 8 March 02, 2001 Certiorari Denied, No. 26,858, April 19, 2001. The legislature did not intend to punish fourth-time or subsequent DWI offenders in the same manner as other fourth-degree felons and therefore the aggravation statute ( § 31-18-15.1 NMSA 1978, allowing the judge to add up to 1/3 of the underlying sentence for aggravating circumstances) cannot be used to enhance the basic sentence for conviction of a DWI felony. State
v. Santillanes When a vehicular homicide charge is based on driving while intoxicated, a defendant cannot be convicted of both vehicular homicide and DWI as separate offenses. To do so would violate the defendant’s constitutional right against double jeopardy because in those circumstances DWI is a lesser-included offense of vehicular homicide. When a defendant causes the death of a child by driving while intoxicated, the prosecution has discretion to charge the defendant with either vehicular homicide or child abuse resulting in death (§30-6-1), or both. State v. Santillanes, 2001-NMSC-018, ¶ 27, 27 P.3d 456 (N.M. 2001). The constitutional protection against double jeopardy precludes conviction on both charges, however. When a defendant is convicted of both, the conviction for vehicular homicide must be vacated because it merges into the greater offense of child abuse resulting in death with respect to the death of the same victim. State v. Sanchez New Mexico Court of Appeals Docket No. 21,752 November 7, 2001 (Cert. not applied for) Officer had probable cause to make arrest for DWI at roadblock, even though no impaired driving was observed, when Defendant refused field sobriety tests, smelled of alcohol, had bloodshot eyes and admitted drinking two beers before driving; Defendant was properly convicted of aggravated DWI when he refused to submit to chemical testing and when the evidence of his DWI was as indicated above for probable cause. Additionally, the court viewed the videotape of the arrest, which showed Defendant babbling and acting as though he were under the influence; roadside questioning of Defendant did not require Miranda warnings and thus, Defendant's statements were admissible. The trial court did not err in relieving counsel and appointing substitute when Defendant's only claim was that counsel would not investigate whether videotape was tampered with (Judge Robinson specially concurring). State v. Baldwin, New Mexico Court of Appeals Docket No. 21,006 June 22, 2001 (Cert. not applied for) When a substantial period of time has elapsed between arrest and a chemical test of a driver's BAC, the .08 per se standard will not stand alone without other evidence of intoxication. In this case, a substantial period of time was two hours and 15 minutes. State v. Saiz New Mexico Court of Appeals Docket No. 21,797 Apr 18, 2001 A moped is a vehicle under DWI statute. State Taxation and Revenue Dept,
MVD v. Bargas Based on legislative language and remedial purpose of statute, ninety-day time limit on hearing of driver's license revocation is mandatory and cannot be waived; to extent they held otherwise, Weber and Dente are overruled. State v. Duquette New Mexico Court of Appeals 2000-NMCA-006, 128 N.M. 530, 994 P.2d 776, 1999 N.M. App. LEXIS 144 December 30, 1999, Filed (Second Correction February 23, 2000. As Corrected February 15, 2000. Released for Publication January 28, 2000.) DWI can be the underlying felony offense for which officer must provide probable cause to justify a search warrant under Section 66-8-111(A). (Word Format) State v. Wenger, New Mexico Court of Appeals Docket No. 19,692 May 19, 1999 The DWI statute, Section 66-8-102, does not apply to an individual solely in actual physical control of a non-moving vehicle when it is on private property. This case has been reversed by the New Mexico Supreme Court Case of State v. Johnson filed December 20, 2000, 2001 NMSC-001, Wenger Held: the DWI statute, Section 66-8-102, does not apply to an individual solely in
actual physical control of a non-moving vehicle on private property. State v. Torres, Supreme Court of New Mexico Docket No. 23,334 1999-NMSC-010 February 15, 1999 Held: Testimony as to the results of a Horizontal Gaze Nystagmus (HGN) test should not have been admitted at trial, because the State failed to lay a proper foundation for the admission of this expert testimony. Although the State qualified a police officer as an expert in administering the test, it failed to show the evidentiary reliability of HGN testing. State v. Montoya Court of Appeals of New Mexico Docket No. 19,222 1999-NMCA-001, 1998 N.M. App. LEXIS 170 November 17, 1998, Filed This case addresses the question of whether the result of the breath alcohol test administered to Defendant is admissible when the breathalyzer machine is calibrated within seven days immediately preceding the test, but the subsequent calibration was not done within the seven-day period prescribed by Department of Health Regulations. Held: the test will be admissible. Medrow v. State Court of Appeals of New Mexico Docket No. 18,980 1998-NMCA-173, 968 P.2d 1195, 1998 N.M. App. LEXIS 154 October 20, 1998, Filed Held: Collyer decision is inapplicable to license revocation under the Implied Consent Act because Collyer refers to plea agreements made within the criminal system, while Medrow's license revocation was made under the separate and administrative Implied Consent Act. State v. Gardner Court of Appeals of New Mexico 1998-NMCA-160, 967 P.2d 465, 1998 N.M. App. LEXIS 142 September 11, 1998, Filed Certiorari Denied, No. 25,398, October 30, 1998. The question in this case is whether a breath alcohol test taken after the Defendant was continuously observed for only fifteen minutes is admissible in a criminal case for driving while intoxicated (DWI). Held: Test is not admissible, and conviction was reversed.
State v. Guerro Held: the maximum sentence for vehicular homicide is six years, not three years. Defendant had argued that because the vehicular homicide statute does not include the language "resulting in the death of a human being," our legislature did not intend to include this crime in the six-year sentence authorized by Section 31-18-15(A)(4). The Court of appeals was not convinced and affirmed that since the crime of vehicular homicide necessarily results in the death of a human being, that language does not have to be specifically included in the statute for the six year penalty (rather than the three year penalty for a third degree felony) to apply. State v. Jones A prior uncounseled misdemeanor conviction can be used to enhance a subsequent conviction, provided the prior conviction did not result in a sentence of imprisonment or, if it had resulted in a sentence of imprisonment, the right to counsel had been validly waived. In this case, the record does not indicate whether a prior conviction resulted in a term of imprisonment. However, the docketing statement recites that the court's order found Defendant "guilty of DWI and other offenses . . . but did not impose any period of incarceration." Such corroborative proof is acceptable as a correct statement of the facts. In this case, the Court has decided that no independent state constitutional ground for precluding the use of a prior uncounseled misdemeanor conviction has been established. State v. Gonzales Supreme Court of New Mexico 947 P.2d 128, 36 N.M. St. B. Bull. 44 September 24, 1997, Filed Original Proceeding on Certiorari, Sandra A. Grisham, District Judge. Motion for Rehearing Denied October 10, 1997. Where a prior conviction results in a sentence of some confinement, a defendant is entitled to counsel before he decides whether or not to plead guilty, unless he waives the right to counsel. The Supreme Court provides guidance for a trial court to determine that a defendant's written waivers of the right to counsel were knowing, intelligent and voluntary. State v. Rivera Defendant was found unconscious or asleep at the wheel of his car in the front yard of his house with the car's engine running. Defendant contends that there was insufficient evidence of driving because his wife testified that he liked to sit in the car and listen to the radio. However, such testimony does not negate the required element of driving, which is defined as being in actual physical control of the vehicle.
State v. Tafoya State vs. Anaya Supreme Court of New Mexico Nos. 22,889, 23,204, 22,978, 23,236 123 N.M. 14, 933 P.2d 223 1997 NMSC 010, 1996 N.M. LEXIS 474 Filed December 6, 1996; motion for Rehearing Denied January 29, 1997
The trial court denied Defendant's request for bail pending appeal of his convictions for driving while intoxicated (DWI) (second offense), reckless driving, great bodily injury by vehicle (alternatively by reckless driving or DWI), and four counts of vehicular homicide (alternatively by reckless driving or DWI). This case affirms the trial court’s denial of bail pending appeal of the defendant’s DWI conviction, and reverses the trial court’s denial of bail pending appeal of the remaining convictions and sentences. Thus, once the defendant had served his sentence for DWI, the trial court was instructed to hold a hearing to set conditions of release pending appeal of the remaining convictions and sentences. Evans vs. State of New Mexico Court of Appeals of New Mexico Filed June 21, 1996, cert. denied August 15, 1996 The Implied Consent statute ( NMSA 1978, Section 66-8-112(B)) does not authorize telephonic revocation hearings, and therefore under current law these hearings are required to be held in person.
The results of a defendant's blood test are protected by the physician-patient privilege because they constitute a privileged confidential communication between a physician and a patient under SCRA 11-504
A defendant who had a DWI conviction on his record pled no contest to a second charge of DWI on the condition that the conviction be adjudicated as a first offense. The magistrate court accepted the plea and expressly provided that the conviction was a “first conviction within the meaning of Section 66-8-102... and shall be treated as such for all lawful purposes.” After the plea was accepted by the defendant, the court and the DA, the MVD tried to revoke the license on the basis of the offender’s true first conviction, as required by law. The court wrote: " The MVD must revoke the license, but it is a holding of this case that the court, not the MVD, determines whether or not the conviction is a first or subsequent."
A conviction under the state’s DWI felony law does not require that all of a defendant’s previous convictions have occurred after the passage of the felony law in 1993. A defendant was convicted of DWI based on an incident that occurred in June of 1994. Defendant was given notice that the state would seek to enhance the charge of DWI pursuant to the 1993 statute that made a fourth offense a felony. The defendant admitted to the charge of DWI but objected to using previous convictions to enhance his sentence, contending that the three prior convictions had to be under the new law. The court did not agree and affirmed his conviction for a fourth degree felony DWI. County
of Los Alamos v. Beckman This case further defines the assignment of responsibility when the six month rule has been breached. The six month rule (8-506(B) for municipal courts) provides that a charge which is still pending six months from the date of the arrest of the defendant or the filing of the complaint or citation against the defendant, whichever occurs latest shall be dismissed, unless the defendant was responsible for the failure of the court to commence trial. A defendant who asked for two trial delays (continuances) totaling 11 days, and requested that his trial be held either on a Monday or Friday to accommodate travel from another state, has not necessarily caused a trial to run over the six months allowed by the rule. If the court cannot accommodate the request to hold trial on a Monday or Friday while at the same time complying with the six-month rule, the court must either schedule the trial within the time limit on whatever days are available, or ask that the defendant specifically sign a waiver of the rule and hold the trial after the time limit has run. The court cannot simply schedule the trial after the time limit has run and assume, because the defendant has made scheduling requests including two continuances, that the defendant has waived the six month rule. A request for a continuance cannot be reasonably interpreted as an unlimited waiver of the six month rule. Additionally, if a violation of the six month rule is found, the court is not required automatically to consider the constitutional test to determine if the right to a speedy trial has been denied. Rodarte
v. State The Division of Motor Vehicles is not required to hold a hearing on administrative revocation of driver’s licenses for violations of the Implied Consent Act within 30 days of the revocation. The phrase from Section 66-8-112(B), “...A date for the hearing shall be set by the department, if practical, within 30 days after receipt of notice of revocation...” should be interpreted as directory, not mandatory. State ex. Rel Second Judicial District Attorney v. Kennedy Supreme Court of New Mexico, 904 P.2d 1044, 34 N.M. St. B. Bull. 45 Filed October 18, 1995 Administrative license revocation and a subsequent prosecution in court for the same DWI incident do not, taken together, constitute double jeopardy, for the reason that an administrative license revocation under the Implied Consent Act does not constitute “punishment” for the purpose of the Double Jeopardy Clause. Rather, the primary purpose of administrative license revocation is remedial: to remove dangerous drivers from the road. State
v. Suazo A motorist will be permitted to change his mind after refusing to take a breath alcohol test if the change of mind occurs within the reasonable time it takes to understand the consequences of his refusal; (2) the test would still be accurate; (3) testing equipment or facilities would still be available; (4) honoring the change would not result in substantial inconvenience or expense to the police; and (5) the motorist has been in police custody and under observation for the entire time since arrest. The burden of proving these elements is on the driver, and the time involved will always be very short, never more than a matter of minutes. Martinez vs. State Court of Appeals of New Mexico, 874 P.2d 796, 117 N.M. 588 Filed April 7, 1994, cert. not applied for An order of the district court remanding a cause to an administrative agency for a new hearing and preparation of a proper administrative record is not a final, appealable order subject to review by an appeals court. State v. Wright Court of Appeals of New Mexico, 867 p.2d 1214, 116 N.M. Decided December 8, 1993, cert. denied January 19, 1994. Evidence of refusal to take a field sobriety test is admissible in trial for DWI. State vs. Harrison Court of Appeals of New Mexico, 846 P.2d 1082, 115 N.M. 73 Decided December 29, 1992, cert. denied February 3, 1993 A person who is discovered unconscious or asleep at the wheel of an automobile, whose engine is on and tires are blocked, can be convicted of DWI. Under those circumstances, there is sufficient evidence to support a conviction for DWI. Additionally, the court held that the criminal offense of DWI, NMSA 1978, Section 66-8-102(A), (C) is a strict liability crime. Littlefield v. State Court of Appeals of New Mexico, 839 P.2d 134, 114 N.M. 390 Filed July 13, 1992, Appeal from the District Court of San Juan County The district court has jurisdiction to review an MVD license revocation that results from a DWI conviction, although the statute does not specifically provide this. The failure of the Motor Vehicle Division to hold a hearing on a license revocation within 20 days after a formal request has been filed does not require reinstatement of the license. Delay beyond the statutory period is unfortunate and not to be condoned, but the language is directory, not mandatory unless the defendant is prejudiced by the delay. State v. Vigil Court of Appeals of New Mexico, 839 P.2d 641, 114 N.M. 431 Filed July 6, 1992, Appeal from the District Court of Santa Fe County Under the six month rule, defendants are entitled to a trial within six months from the date charges are filed. In this case, the court determined that if an amended criminal complaint is filed containing significant changes in the offenses charged, the date of the amended complaint supersedes the original complaint for purposes of the rule. The case does give some guidance as to what constitutes “new” charges under an amended complaint. Bierner v. State Taxation and Revenue Department Court of Appeals of New Mexico, 831 P.2d 995, 113 N.M. 696 Filed March 26, 1992, Appeals from the District Court of Bernalillo County. This case establishes that licenses are revoked for DWI offenses based on the blood/breath alcohol content at the time the test is taken not at the time of driving. The state is not required to prove the BAC at the time the suspect was driving. State v. Russell Court of Appeals of New Mexico, 823 P.2d 921, 113 N.M. 121 Filed October 31, 1991 (NOTE: THIS CASE HAS BEEN SUPERSEDED BY A CHANGE IN THE LAW) New Mexico law requires that fourth or subsequent DWI offenders be sentenced to a minimum of six months jail time, under the mandatory provisions of Section 66-8-102(G). At the time of this opinion, a fourth offense was not a felony, but it did carry a mandatory sentence of six months in jail. This case held that the jail sentence on a third or fourth offense is not mandatory if the prior DWI convictions took place in municipal court. The convictions are still taken into account and the judge could still order six months under the court’s discretionary sentencing authority. The Court’s reasoning under the law at the time was that the mandatory provisions only applied on a first offense because the pertinent section of the law, Section 66-8-102(F) (now 66-8- 102(J)) provided that a municipal court conviction “shall be deemed to be a conviction under this section for the purposes of determining whether a conviction in magistrate court is a second conviction” (emphasis added). The court determined that since the law was silent about third, fourth and subsequent convictions, that the mandatory jail for a third and fourth offense (which was not a felony at the time) did not apply when the previous convictions were in municipal court. (The law now provides “A conviction under a municipal or county ordinance prescribing penalties for driving while under the influence of intoxicating liquor or drugs shall be deemed to be a conviction under this section for purposes of determining whether a conviction is a second or subsequent conviction.” (emphasis added). State v. Watchman Court of Appeals of New Mexico, 809 P.2d 641, 111 N.M. 727 Filed January 22, 1991, cert. denied March 4, 1991 Evidence of uncounseled prior convictions in tribal courts may not be used to enhance a sentence for a subsequent DWI offense, unless the record affirmatively shows that the defendant knowingly, voluntarily and intelligently waived counsel. The defendant has the duty to call the trial court’s attention to any inaccuracies contained in a presentence report. Once the defendant challenges the validity of the prior convictions, the burden shifts to the state to show that the conviction did not violate the defendant’s constitutional rights. Weber v. Dept. Of Motor Vehicles State of New Mexico Court of Appeals of New Mexico, 818 P.2d 1221, 112 N.M. 697 Filed, June 13, 1991 When a driver whose license has been revoked under the Implied Consent Act timely requests a hearing on the revocation, the Motor Vehicle Division must hold the hearing within 90 days of filing, or the Division may not revoke the license. Pennsylvania v. Muniz United States Supreme Court, 110 S.Ct. 2638 Decided June 18, 1990 Evidence of intoxication captured on videotape is admissible in court in DWI prosecutions, subject to certain rules. In this case, incriminating audio portions of a videotape showing the booking and sobriety testing were admissible as evidence of intoxication, although when the tape was made the driver had not received his Miranda warnings. The slurred nature of defendant’s answers to police questions was not testimonial and was therefore admissible. An answer to a question regarding the date of his sixth birthday was testimonial because the answer showed impaired mental capacity and was therefore self-incriminating. Answers to questions eliciting his name, address, height, weight, eye color, date of birth and current age were admissible; remarks made by defendant in connection with videotaped efforts to perform sobriety tests and regarding his refusal to take breathalyzer tests were also admissible. State v. Valdez Court of Appeals of New Mexico, 790 P.2d 1040, 109 N.M. 759 Filed February 13, 1990, cert. denied March 22, 1990 The state has six months to conduct a criminal trial, in most cases. The rules determining when the six months begins varies slightly between the magistrate and district courts. Cases which have not been heard within six months will be dismissed with prejudice unless, after a hearing, the magistrate finds that the defendant was responsible for the failure of the court to commence trial. Where a DWI case was removed from magistrate court and consolidated in district court with two other DWI cases against a single defendant, the six month rule began to run from the time of the consolidation of charges, at the arraignment in district court, not from the date of the first offense arraignment in magistrate court. The court distinguished this situation from the filing of a new complaint in the same court when the second complaint has merely taken out some of the charges of the first: in this situation, the six month rule would not restart. State of New Mexico v. Sanchez Supreme Court of New Mexico, 786 P.2d 42, 109 N.M. 428 Filed February 5, 1990, certification from the New Mexico Court of Appeals When the aggregate maximum authorized penalty for a conviction amounts to more than six months incarceration, the defendant has the right to a jury trial, even when the court determines that it will not impose a sentence greater than six months if convicted. State of New Mexico v. Barber Court of Appeals of New Mexico, 778 P.2d 546, 108 N.M. 709 Filed July 18, 1989, cert. denied August 18, 1989. The state is permitted to appeal to the district court from a final decision of the magistrate court. In this case, there was no double jeopardy, since the state sought only a correction of the sentence, not a retrial of any factual issue. The correction sought was the imposition of impoundment or immobilization of the offender’s car, under a statute that stated that vehicles of convicted offenders “shall” be impounded or immobilized. However, the legislature did not include language in the impoundment section similar to the language in another part of the DWI statute, that the penalty could not be suspended or deferred. From this, the court determined that the legislature intended to permit the sentencing court the discretion to suspend or defer the imposition of impoundment or immobilization even though the statute says “shall.” However, the court cannot simply ignore the sanction; it must enter an order either imposing the sanction, suspending it or deferring imposition of the sentence. (Note: the legislature has subsequently removed the provision for impoundment/immobilzation in the DWI statute, although it remains in the penalties section for driving on a license revoked for DWI.) Incorporated County of Los Alamos v. Bishop Court of Appeals of New Mexico, 772 P.2d 891, 108 N.M. 361 Filed February 7, 1989, cert. denied March 21, 1989 A Los Alamos County ordinance contains stricter penalties for first offense DWI than those of state law: a BAC of .15 or greater on a first offense draws 72 hours of mandatory jail time. (At the time this case was decided, there were no mandatory penalties for driving with a BAC of .15 or greater under state law, as currently exist under the state’s aggravated DWI statute.) Defendants claimed that because law enforcement officers could cite either under state law or the stricter county ordinance, this gave the law enforcement officers too much discretion and would violate the equal protection clause of the U.S. Constitution. An ordinance is not invalid simply because it provides for greater restrictions than state law. An ordinance will be declared invalid if its stricter requirements conflict with state law or if the ordinance permits an act the general law permits or prohibits the same act the general law permits. Under state law, municipalities may prescribe penalties for DWI, so there is no conflict. And the ordinance prohibits the same act of DWI prohibited by the state statute. Using these tests, the court affirmed the validity of the ordinance. The court also concluded that defendants “are not denied equal protection because a first offense for drunk driving within Los Alamos County carries mandatory jail time, while a first offense elsewhere does not. If this were a plausible argument, any ordinance that differed from a state statute or another county’s ordinance would deny equal protection.” To show a violation of equal protection when duplicative laws are involved, a defendant must show a discriminatory basis for the prosecution (i.e. race, religion, age, etc.). This case also affirmed that an offender does not have the right to a deferred sentence on a first offense, but rather, it is within the discretionary power of the court to defer sentence. Richardson v. Carnegie Library Supreme Court of New Mexico, 763 P.2d 1153, 107 N.M. 688 Filed October 18, 1988, Motion for Rehearing Denied November 21, 1988; As Amended December 5, 1988 A driver who had been drinking at a tavern in Artesia stole a
dumptruck and drove it into a car, killing its driver Wade Richardson. Richardson's estate
brought a wrongful death action against the bar owner, claiming the bar had violated the
Dramshop Act by serving liquor to the driver Billibob Lewis, when he was already
intoxicated. The bar owner did not answer the compaint or appear in court and a default
judgment was entered. The court found the plaintiff's damages were $250,000; however, it
awarded judgment of only $50,000 because the dramshop Act limits recoveries against
tavernkeepers to a maximum of $50,000. The court fund no legitimate public good or
policy reasons for offering special protection to tavernkeepers and creating a class of
tort victims who are denied full recovery because of the cap on a tavernkeeper's
liability. The court held that the damage limitation has no substantial relationship to a
legitimate or important governmental purpose and is therefore constitutionally invalid as
violative of the equal protection clause of the New Mexico Constitution. Cordova v. Mulholland Court of Appeals of New Mexico, 763 P.2d 368, 107 N.M. 659 Filed August 9, 1988, cert. denied Sept. 12, 1988 An officer must have reasonable grounds to suspect that a person was driving while under the influence and the officer must arrest the suspect, before a revocation under the Implied Consent Act can take place. Meyer v.
Jones The fact that a crime carries a probationary sentence longer than 90 days does not present the degree of liberty deprivation that would convert a petty offense to a serious offense. Thus, a probationy sentence of longer than 90 days does not trigger the right to a jury trial. In the state’s magistrate courts anyone who requests a jury trial in a criminal case has the right to one, regardless of the possible sentence of jail. In the metropolitan court, only someone facing a sentence over 90 days has the right to a jury trial. This does not violate the equal protection clauses of the U.S. and N.M. constitutions, the Court held. The Court noted that metropolitan court judges must be attorneys and these “advanced judicial qualifications” provide extra protections to defendants in metropolitan court. City of Las Cruces vs. Betancourt Court of Appeals of New New Mexico, 735 P.2d 1161, 105 N.M. 655 Filed March 5, 1987, cert. denied April 9, 1987 Appeal from the District Court of Dona Ana County Police roadblocks set up for the purpose of detecting and apprehending drunk drivers are constitutionally permissible in New Mexico. This case outlines eight guidelines to determine the reasonablenes of a sobriety checkpoint. Boone v. State Supreme Court of New Mexico 731 P.2d 366, 105 N.M. 223 December 31, 1986, Filed ORIGINAL PROCEEDING ON CERTIORARI, William J. Schnedar, District Judge. Motion for Rehearing Denied February 3, 1987 The offense of DWI under Section 66-8-102 does not require motion of the vehicle; the offense is committed when a person under the influence drives or is in actual physical control of a motor vehicle or exercises control over or steers a vehicle being towed. Smith v. Maldonado Supreme Court of New Mexico, 711 P.2d 15, 103 N.M. 570 Filed December 16, 1985 Defendants may voluntarily and intelligently waive their right to be represented by counsel. Whether counsel has been intelligently waived depends on the particular facts of each case. Under Section 31-16-6, Waiver of right to representation, the court must find that the defendant “acted with full awareness of his rights and of the consequences of a waiver [and] shall consider such factors as the person’s age, education and familiarity with English and the complexity of the crime involved.” The judge is statutorily charged with assuring that the defendant understands the significance of the waiver. The arraigning or sentencing judge must thoroughly question the defendant to ascertain that he understands the effect of his decision in order that the waiver be legally sufficient. State v. Sisneros Defines, "under the influence of intoxicating liquor" for the first time in New Mexico. "A person who has taken a drink of intoxicating liquor is not necessarily under its influence; but if it affects him so that, to the slightest degree, he is 'less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle as powerful and dangerous a mechanism as a modern automobile with safety to himself and the public' ( Hasten v. State, supra), he is under the "influence of intoxicating liquor" within the meaning of the statute."
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