1

Certiorari Denied, February 13, 2012, No. 33,400

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-030

Filing Date: December 27, 2011 

Docket 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
2

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 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 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 32A2-14 (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.
3

{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.

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 selfincrimination 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, 150 N.M. 683, 265 P.3d 734, cert. denied,

2011- NMCERT- 009, 269 P.3d 903. In the present case, the facts are undisputed, so we

review the district court’s order to 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 SelfIncrimination

{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:
4

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 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.

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
5

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 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.

{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 public

interest in the enforcement of traffic laws against an individual’s right to liberty, privacy, and
6

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

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).

{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
7

{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, §§ 32A1-1 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.

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 to remain
8

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-NMSC030, ¶ 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 32A2-14 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 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 selfincrimination).

{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 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
9

{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.

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 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
10

WE CONCUR:

 

MICHAEL D. BUSTAMANTE, Judge

 

LINDA M. VANZI, Judge

Topic Index for State v. Candace S., No. 30,331

AE APPEAL AND ERROR

AE-PA Preservation of Issues for Appeal

AE-SR Standard of Review 

CD CHILDREN

CD-CC Children’s Code

CL CRIMINAL LAW

CL-DG Driving While Intoxicated

CA CRIMINAL PROCEDURE

CA-MW Miranda Warnings

CA-MR Motion to Suppress

CA-RS Reasonable Suspicion

CA-WS Warrantless Search

CT CONSTITUTIONAL LAW

CT-DP Due Process

CT-FA Fourth Amendment

CT-IT Interstitial Analysis

CT-MW Miranda Warnings

CT-SL Self-incrimination

CT-SU Suppression of Evidence

EV EVIDENCE

EV-BT Blood/Breath Tests