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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMSC-029

Filing Date: October 5, 2017

Docket No. S-1-SC-36197

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

LARESSA VARGAS,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI

Briana H. Zamora, District Judge

Hector H. Balderas, Attorney General

John Kloss, Assistant Attorney General

Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender

Steven James Forsberg, Assistant Appellate Defender

Albuquerque, NM

for Respondent

OPINION

CHÁVEZ, Justice.

{1} The United States Supreme Court recently held that (1) a law enforcement officer

may require a warrantless alcohol breath test from a person who is arrested for driving while

intoxicated (DWI) from alcohol because a breath test is a reasonable search incident to

arrest, but (2) an officer cannot require a warrantless blood test unless the officer has

probable cause to require the blood test and demonstrates exigent circumstances. Birchfield

v. North Dakota, ___ U.S. ___, ___, 136 S. Ct. 2160, 2184-86 (2016). Thus, under

Birchfield, a person who is arrested for DWI may be punished for refusing to submit to a
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breath test under an implied consent law, but may not be punished for refusing to consent

to or submit to a blood test under an implied consent law unless the officer either (a) obtains

a warrant, or (b) proves probable cause to require the blood test in addition to exigent

circumstances.

{2} In this case, defendant Laressa Vargas consented to and submitted to two breath tests,

but refused to consent to a blood test. The arresting officer did not obtain a warrant for a

blood test, nor could he do so under New Mexico law, because he did not have probable

cause to believe that Vargas had committed a felony or caused death or great bodily injury

to another person while driving a motor vehicle under the influence of alcohol or a controlled

substance as required by NMSA 1978, Section 66-8-111(A) (2005). Vargas was convicted

of violating NMSA 1978, Section 66-8-102(D)(3) (2010, amended 2016) because she

refused to submit to a blood test; she received a sentence of ninety days in jail, with credit

for seventy-five days for time served.

{3} The Birchfield opinion had not been decided when the Bernalillo County

Metropolitan Court entered its judgment convicting Vargas; however, Birchfield was

published while Vargas’s appeal was pending before the New Mexico Court of Appeals.

The Court of Appeals applied Birchfield and reversed Vargas’s conviction for aggravated

DWI. See State v. Vargas, 2017-NMCA-023, ¶¶ 2, 26, 389 P.3d 1080. We granted the

State’s petition for writ of certiorari to consider whether the Court of Appeals erred in

applying Birchfield. State v. Vargas, 2016-NMCERT-___ (No. S-1-SC-36197, Feb. 14,

2017). We conclude that the Court of Appeals correctly applied Birchfield to the pending

appeal because of a person’s fundamental right under the Fourth Amendment of the United

States Constitution not to be subjected to unreasonable searches, and because Birchfield

prohibits punishment under implied consent laws based on an arrestee’s refusal to consent

to and submit to a warrantless blood test. See Birchfield, ___ U.S. at ___, 136 S. Ct. at 2160,

2186.

I. FACTUAL AND PROCEDURAL BACKGROUND

{4} On April 23, 2011 at approximately 1:00 a.m., Bernalillo County Deputy Sheriff

Patrick Rael was part of a force conducting a DWI checkpoint on Coors Boulevard in

Albuquerque when he encountered Vargas. As Vargas approached the checkpoint, she

stopped fifteen to twenty yards before she reached where Deputy Rael was standing, and

Deputy Rael waved his flashlight to get her attention to indicate that she should move

forward. Vargas then rolled down her window and said “good afternoon,” which Deputy

Rael found odd, given the time of night.

{5} Deputy Rael immediately noticed the odor of alcohol emanating from both Vargas’s

person and her vehicle. He also observed that Vargas’s eyes were bloodshot and watery.

Deputy Rael asked Vargas if she had been drinking, to which she answered that she had not.

She explained that she was the designated driver for her passenger, who had been drinking.

Deputy Rael described Vargas as “confused” and “nervous.”
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While Section 66-8-102(A) does not provide the exact language of “impaired to the

slightest degree,” State v. Sisneros, 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274 effectively

created that standard, and State v. Gurule, 2011-NMCA-042, 149 N.M. 599, 252 P.3d 823

reaffirms it. See Sisneros, 1938-NMSC-049, ¶ 18 (“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,’ he is under the ‘influence of

intoxicating liquor’ within the meaning of the statute.” (citation omitted)); see also Gurule,

2011-NMCA-042, ¶ 7 (stating that a defendant found to be “impaired to the slightest degree”

has violated Section 66-8-102(A)).

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{6} Deputy Rael requested that Vargas submit to field sobriety tests (FSTs), and Vargas

agreed. Vargas performed poorly on the FSTs. At that point Deputy Rael believed that

Vargas was intoxicated and could not safely operate a vehicle, so he placed her under arrest.

{7} Deputy Rael read the pertinent provisions of the New Mexico Implied Consent Act

to Vargas, after which she agreed to a breath test. Vargas provided two breath test samples,

which resulted in readings of 0.04 at 1:33 a.m. and 0.05 at 1:35 a.m. Because he believed

that the breath test results were inconsistent with Vargas’s signs of impairment, Deputy Rael

determined that a blood test was the only other means to confirm Vargas’s intoxication,

particularly because he suspected that drugs were the cause of her impairment. Deputy Rael

then reread the Implied Consent Act to Vargas and explained that he was entitled to ask her

for both a breath test and a blood test. He subsequently asked Vargas to submit to a blood

test, and she agreed to do so. Deputy Rael wanted to verify Vargas’s answer, so he asked

her again if she was willing to submit to a blood test. Deputy Rael explained that the

possible consequences of refusing the blood test included an aggravated sentence and license

revocation. Vargas refused to take the blood test the second time she was asked, and she was

subsequently charged with aggravated DWI.

{8} At the conclusion of the bench trial, the metropolitan court determined that the State

had proved beyond a reasonable doubt that Vargas drove while she was under the influence

of alcohol to the slightest degree.1

 It also concluded that officers have the discretion to

request breath tests, blood tests, or both, and that Vargas’s refusal aggravated the underlying

DWI. The metropolitan court sentenced Vargas to a term of ninety days in jail for

aggravated DWI under Section 66-8-102(D)(3) (2010), which provides that

[a]ggravated driving under the influence of intoxicating liquor or drugs

consists of: refusing to submit to chemical testing, as provided for in the

Implied Consent 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.
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{9} Vargas subsequently appealed to the Second Judicial District Court and then to the

Court of Appeals. After the United States Supreme Court decided Birchfield, Vargas raised

for the first time on appeal to the Court of Appeals the defense that the warrantless request

for the blood test was an unreasonable search under the Fourth Amendment, and that her

refusal to submit to it could not be used to prove aggravated DWI.

{10} Although the Court of Appeals concluded that Vargas’s constitutional argument was

not preserved, it decided the issue on the merits. See Vargas, 2017-NMCA-023, ¶¶ 14-15.

The Court reversed Vargas’s aggravated DWI conviction and remanded the case to the

metropolitan court for resentencing on the DWI charge based on Vargas being impaired to

the slightest degree pursuant to Section 66-8-102(A). Id. ¶¶ 2, 9, 19, 26. The State makes

two arguments before us: (1) Birchfield does not apply retroactively, and (2) the Court of

Appeals erred in applying Birchfield because the issue was not preserved.

II. DISCUSSION

A. Birchfield Applies Retroactively

{11} The State’s argument that Birchfield should not be applied retroactively is not

persuasive. In Teague v. Lane, the United States Supreme Court established the analysis that

courts must follow to determine whether a new rule applies retroactively. See 489 U.S. 288,

299-310 (1989). New Mexico courts have adopted this analysis. See Kersey v. Hatch, 2010-

NMSC-020, ¶¶ 21, 25, 148 N.M. 381, 237 P.3d 683. “An appellate court’s consideration of

whether a rule should be retroactively or prospectively applied is invoked only when the rule

at issue is in fact a new rule.” State v. Mascareñas, 2000-NMSC-017, ¶ 24, 129 N.M. 230,

4 P.3d 1221 (internal quotation marks omitted). The Teague Court determined that “a case

announces a new rule if the result was not dictated by precedent existing at the time the

defendant’s conviction became final.” 489 U.S. at 301 (emphasis omitted). The new rule

“applies to cases pending on direct appeal, as long as the issue was raised and preserved

below . . . .” Kersey, 2010-NMSC-020, ¶ 19 (citing State v. Nunez, 2000-NMSC-013, ¶ 114,

129 N.M. 63, 2 P.3d 264). Vargas did not preserve her Fourth Amendment argument in the

metropolitan court. Nonetheless, the Court of Appeals properly exercised its discretion to

address her unpreserved argument because of the fundamental right to be free from illegal

searches and seizures, including warrantless blood tests. See Vargas, 2017-NMCA-023, ¶

15. Birchfield announced an expansion of courts’ previous understanding of blood tests

under the Fourth Amendment. See ___ U.S. at ___, 136 S. Ct. at 2174-76 (“[T]he founding

era does not provide any definitive guidance as to whether [breath and blood tests to measure

blood alcohol content (BAC)] should be allowed incident to arrest. Lacking such guidance

. . . we examine the degree to which [they] intrud[e] upon an individual’s privacy and . . . the

degree to which [they are] needed for the promotion of legitimate governmental interests.”

(fourth through seventh alterations in original) (footnote omitted) (internal quotation marks

and citation omitted)). Birchfield specifically held for the first time that police officers do

not need to obtain a search warrant for a breath test from a subject because a breath test is

a search incident to arrest, but officers must obtain a search warrant for a blood test unless
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probable cause for the blood test and exigent circumstances are present. Id. at ___, 136 S.

Ct. at 2185. This new rule cannot apply retroactively unless “(1) it is a substantive rule that

alters the range of conduct or the class of persons that the law punishes, or (2) it is a

watershed rule of criminal procedure.” Kersey, 2010-NMSC-020, ¶ 31.

{12} The rule recently announced in Birchfield fits squarely within the first Teague

exception to the general principle against retroactive application because the new rule

“places ‘certain kinds of primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe.’ ” Teague, 489 U.S. at 307 (citation omitted).

Birchfield bars criminal sanctions previously imposed upon a subject for refusing to submit

to warrantless blood tests. See ___ U.S. at ___, 136 S. Ct. at 2185-86. Therefore, Birchfield

is applicable here.

B. The Court of Appeals Had Broad Discretion to Review Sua Sponte the

Unpreserved Fourth Amendment Issue on Appeal

{13} Generally, “[t]o preserve a question for review it must appear that a ruling or decision

by the district court was fairly invoked . . . .” Rule 12-216(A) NMRA (1993); see also Rule

3-706(I) NMRA (“The Rules of Civil Procedure for the District Courts shall govern the

procedure on appeal from the metropolitan court.”). During her bench trial, Vargas moved

to suppress any indication of her drug use and her refusal of the blood test based on three

grounds: (1) Deputy Rael did not perform a drug recognition evaluation, (2) there were no

blood results, and (3) the theory upon which the State was prosecuting Vargas was

ambiguous. The metropolitan court denied Vargas’s motion and focused primarily on her

third reason in concluding that the State had discretion to prosecute based on either alcohol

intoxication, drug-induced intoxication, or both. Importantly, Vargas’s motion to suppress

was not based on the Fourth Amendment grounds which formed the basis of her argument

to the Court of Appeals, and as a result, the metropolitan court’s ruling did not apply to the

specific constitutional issue on appeal. Therefore, this issue was not properly preserved

under Rule 12-216(A) (1993).

{14} However, questions involving “general public interest [or] fundamental error or

fundamental rights of a party” are exceptions to the general rule requiring preservation. Rule

12-216(B)(1)-(2) (1993). “[F]reedom from illegal search and seizure is a fundamental

right,” which is a matter of general public interest, and an appellate court may exercise its

discretion to consider an issue involving search and seizure protections even if it is not

preserved by a defendant. State v. Gomez, 1997-NMSC-006, ¶ 31 n.4, 122 N.M. 777, 932

P.2d 1.

{15} The State’s concern with the Court of Appeals’s review sua sponte of the merits of

Vargas’s argument is that it was not provided an opportunity for additional briefing to

address the scope and applicability of Birchfield, and was therefore inhibited from

developing the record to address the circumstances that would support probable cause and

exigent circumstances justifying a warrantless blood test. We agree that the Court of Appeals
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should have asked for additional briefing, particularly to address Birchfield, which was

decided while the present case was on appeal. Nevertheless, we remind litigants that when

an appellate court fails to request supplemental briefing, filing a motion for rehearing is a

valid option when the motion is “based upon a point of law . . . not raised, briefed or argued

by any party but relied upon by the court in its disposition of the matter . . . .” Rule 12-

404(A) NMRA (2009). Despite the fact that the Court of Appeals did not ask for additional

briefing, the record in this case is adequate to address the proper application of Birchfield,

and we therefore conclude that the Court of Appeals did not abuse its discretion by

addressing the application of Birchfield.

C. Vargas Was Unconstitutionally Punished for Refusing to Submit to an

Unreasonable Blood Test

{16} We review the merits of Vargas’s Fourth Amendment argument de novo. See State

v. Ryon, 2005-NMSC-005, ¶ 11, 137 N.M. 174, 108 P.3d 1032 (“The legality of a search . . .

turns on the question of reasonableness [and we] review the determination of reasonableness

de novo.”).

{17} “The Fourth Amendment, incorporated against state actors [such as police officers]

via the Fourteenth Amendment, requires that all searches and seizures be reasonable in their

execution.” State v. Leyva, 2011-NMSC-009, ¶ 9, 149 N.M. 435, 250 P.3d 861 (citations

omitted). To identify reasonableness, we balance “public interest and the [subject]’s right

to personal security free from arbitrary interference by law officers.” Id. (internal quotation

marks and citation omitted).

{18} Both breath tests and blood tests are searches, with each test implicating varying

privacy concerns. Birchfield, ___ U.S. at ___, 136 S. Ct. at 2173-74, 2176. Breath tests

elicit few privacy concerns; they only reveal a subject’s BAC, no sample is left in the

possession of the officer which may be used to obtain additional information, there is no

great embarrassment associated with this testing, and the tests collect only breath, which we

expel at all times. Id. at ___, 136 S. Ct. at 2176-78. In contrast to breath, we do not

regularly shed blood, and a blood test provides an officer with a sample from which more

information than mere BAC can be extracted. Id. at ___, 136 S. Ct. at 2178.

{19} The Fourth Amendment permits warrantless breath tests incident to legal arrests

because noninvasive breath tests only slightly impact a subject’s privacy and because the

state has an interest in testing BAC to maintain highway safety and deter drunk driving. Id.

at ___, 136 S. Ct. at 2184. The Birchfield Court held that blood tests bear too heavily on a

subject’s privacy interests to permit the state to seize warrantless samples at all DWI stops.

Id. at ___, 136 S. Ct. at 2178. Therefore, when a subject does not consent to such a search,

officers must obtain a warrant or establish probable cause and exigent circumstances to

justify a warrantless search. See id. at ___, 136 S. Ct. at 2185-86 (concluding that drivers

do not consent to criminal penalties for refusing invasive blood tests by virtue of driving on

public roads). Vargas consented to two breath tests. Deputy Rael subsequently asked Vargas
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to consent to a warrantless blood draw. Because she refused, Deputy Rael should have

assumed that a warrant was necessary, unless probable cause to request the blood test and

exigent circumstances obviated the need for a warrant.

{20} Section 66-8-111(A) defines the probable cause that is necessary to obtain a warrant

when a person under arrest refuses to consent to a chemical test.

If a person under arrest for violation of an offense enumerated in the Motor

Vehicle Code . . . refuses upon request of a law enforcement officer to submit

to chemical tests designated by the law enforcement agency as provided in

Section 66-8-107 NMSA 1978 [the implied consent provision], none shall be

administered except when a municipal judge, magistrate or district judge

issues a search warrant authorizing chemical tests as provided in Section 66-

8-107 NMSA 1978 upon [the judge] finding in a law enforcement officer’s

written affidavit that there is probable cause to believe that the person has

driven a motor vehicle while under the influence of alcohol or a controlled

substance, thereby causing the death or great bodily injury of another person,

or there is probable cause to believe that the person has committed a felony

while under the influence of alcohol or a controlled substance and that

chemical tests as provided in Section 66-8-107 NMSA 1978 will produce

material evidence in a felony prosecution.

{21} Deputy Rael had probable cause to believe that Vargas had driven a motor vehicle

while under the influence of alcohol or a controlled substance, but he did not have probable

cause to believe that Vargas had caused the death or great bodily injury of another person

while driving under the influence. Nor did Deputy Rael have probable cause to believe that

Vargas had committed a felony while under the influence of alcohol or a controlled

substance and that the chemical test would produce material evidence in a felony

prosecution. Vargas’s arrest occurred at a DWI checkpoint. The State does not contend that

she was driving under the influence and caused either death or great bodily injury to another.

The State also does not contend that Vargas committed a felony while she was under the

influence of alcohol or another substance.

{22} Because Deputy Rael lacked the probable cause required by Section 66-8-111(A) to

obtain a warrant, whether exigent circumstances existed is not relevant. See State v.

Tywayne H., 1997-NMCA-015, ¶ 16, 123 N.M. 42, 933 P.2d 251 (“[W]arrantless searches

are only permissible if they fall within an exception to the warrant requirement. Exceptions

include . . . probable cause plus exigent circumstances . . . .” (citation omitted)). Therefore,

Deputy Rael’s warrantless request of Vargas’s blood sample cannot be justified as

reasonable. Vargas was warned of potential additional punishment if she refused to submit

to what was an unreasonable search. Implied consent laws can no longer provide that a

driver impliedly consents to a blood draw. Birchfield, ___ U.S. at ___, 136 S. Ct. at 2185.

We conclude that Vargas cannot be subjected to criminal penalties for refusing to submit to

an unreasonable search. Contra id., ___ U.S. at ___, 136 S. Ct. at 2172, 2185-86 (reasoning
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that if the warrantless search comports with the Fourth Amendment, “it follows that a State

may criminalize the refusal to comply with a demand to submit to the required testing”).

III. CONCLUSION

{23} For the foregoing reasons, we affirm the Court of Appeals in reversing Vargas’s

conviction for aggravated DWI and remanding for resentencing on DWI, impaired to the

slightest degree.

{24} IT IS SO ORDERED.

____________________________________

EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________

JUDITH K. NAKAMURA, Chief Justice

____________________________________

PETRA JIMENEZ MAES, Justice

____________________________________

CHARLES W. DANIELS, Justice

____________________________________

BARBARA J. VIGIL, Justice