The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is sele cted for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA , authenticated and formally published . The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 Opinion Number: _____________ 2 Filing Date: February 28, 2023 3
No. A

- 1

- CA

- 39573 4 CITY OF LAS CRUCES, 5
Plaintiff

- Appellee, 6

v. 7 TERESA CARBAJAL, 8
Defendant

- Appellant. 9
APPEAL FROM THE DISTRICT COURT OF DO  A ANA COUNTY 10 Conrad F. Perea, District Court Judge 11 City of Las Cruces 12 Robert A. Cabello, Deputy City Attorney 13 Las Cruces, NM 14 for Appellee 15 Bennett J. Baur, Chief Public Defender 16 Allison H. Jaramillo, Assistant Appellate Defender 17 Santa Fe, NM 18 for Appellant 19OPINION 1
YOHALEM , Judge. 2

{1} Today we are asked to determine whether a d rug r e cognition e xpert (DRE) 3 examination for drug use while driving is something that implicates a d efendant’s 4 right to remain silen t

. U nder the facts of this case, such an examination was a 5 custodial interrogation , because it called, in part , for spoken responses by Defendant 6 to spoken questions by the DRE i nvestigator

. The prosecutor’s introduction of 7 testimony and comments on Defendant’s post

- Miranda 1 warning silence to show a 8 consciousness of guilt was therefore plain error, requiring reve rsal. Concluding that 9
the evidence was sufficien t to sustain a conviction for driving under the influence 10 (DUI) , we reverse and remand for a new trial on the DUI charge

. We also vacate the 11 ninety

- day suspended sentence imposed for driving without a license and remand 12 for imposition of the fine authorized by the Las Cruces Municipal Code of 13 Ordinances, Las Cruces, N.M. Code of Ordinances (LCMC) , ch. 27, art. VI, § 27

- 14
12

- 6

- 12.6 (A)(6) ( 2007 ) ; 2 LCMC , § 27

- 12

- 14

- 4

. 15

1 See Miranda v. Arizona , 384 U.S. 436 (1966)

. 2 In the remainder of this opinion, we cite to the Las Cruces Municipal Code of Ordinances, Las Cruces, N.M. Code of Ordinances adopting the abbreviation “LCMC,” used by the parties. We cite only the section number in the subsequent citations to the ordinanc es, rather than citing to the chapter and article. All subsequent articles referenced can be found within Chapter 27 of the ordinance.2 BACKGROUND 1

{ 2 } On April 5, 2018, Defendant was driving in Las Cruces , New Mexico , when 2
she was st opped by Las Cruces Police Officer Robert Holguin for driving with a 3 broken taillight. Following a brief investigation, Officer Holguin arrested Defendant 4
for violati ng LCMC , § 27

- 12

- 6

- 12.1(C) , which prohibits “ any person who is under 5 the influence of any drug to a degree which renders the person incapable of safely 6 driving a vehicle ” from driving within the municipality of Las Cruces , New Mexico

. 7
Defendant’s arrest was based on Officer Holguin’s belief that there was probable 8 cause to believe Defendant was under the influence of marijuana to a degree that 9 rendered her incapable of saf ely driving. Defendant was also charged with several 10
minor traffic offenses : a broken taillight, driving without a license, driving without 11

a registration, and driving without insurance, in violation of L CMC , § 27

- 12

- 10

- 12
1.7 ( C) (taillight) ; LCMC, § 27

- 12

- 6

- 12.5 (license) ; LCMC, § 27

- 12

- 10

- 4 13 (registration), and LCMC, § 27

- 12

- 10

- 6 (insurance). 14

{ 3 } Defendant ple aded guilty in municipal court to the broken taillight and to 15 driving without registration and insurance , offenses punishable by a fine. She was 16
then tried in municipal court before a judge, without a jury , and convicted of 17

o perating a m otor v ehicle u nder the i nfluence of i ntoxicating d rugs, contrary to 18
LCMC , § 27

- 12

- 6

- 12.1(C), and d riving without a license, contrary to L CMC , § 27

- 19
12

- 6

- 12. 5

. Defendant appealed her convictions to the district court , pursuant to 203 NMSA 1978, Section 35

- 15

- 10 (1959) , which provides for a de novo bench trial in 1
the district court on appeal from a municipal court

. 2

{ 4 } At trial in the district court , Officer Holguin testified about the events that led 3

to the arre st of Defendant for D U I

. Officer Holguin’s body camera video recording 4

was admitted into evidence

. The recording beg ins with the traffic stop , show s 5 Defendant performing f ield s obriety t ests , show s Defendant’s arrest , shows Officer 6 Holguin reading the I mplied C onsent Act , NMSA 1978, §§ 66

- 8

- 105 to

- 112 (1978, 7 as amended through 2019) , shows Defendant handcuffed in the back seat of Officer 8 Holguin ’s vehicle on the drive to the police station , and ends with Defendant’s 9 arrival at the police station

. 10

{ 5 } Officer Holguin testified that he stopped Defendant solely for a broken 11
tail light ; he did not have the opportunity to observe any problem with Defendant’s 12 driving

. W hen he approached the driver’s side of Defendant’s vehicle following the 13
stop, Officer Holguin reported t hat he smelled a strong odor of perfume . After 14 learning that Defendant d id not have a valid driver’s license, registration , or 15 insurance, Officer Holguin took the alternative documentation Defendant provided 16
back to his vehicle. 17

{ 6 } W hen he again approached Defendant ’s vehicle , he did so from the passenger 18 side, where he reported smelling a strong odor of marijuana

. Officer Holguin 19 testified that, b ased on his experience as a police officer, he suspected that perfume 204 was being used to cover up the smell of marijuana. He questioned Defendant about 1 her drinking or drug use. She admitted that she had smoked marijuana the previous 2 day, but denied smoking that day , claiming her children had been smoking in the 3

car
. 4

{ 7 } Officer Holguin asked Defendant whether she was willin g to take f ield 5

s obriety t ests. She agreed. The officer performed three tests: the Horizontal Gaze 6 Nystagmus test (HGN) ; the walk and t urn test, and the o ne leg s tand test. For each 7 test, Officer Holguin reported that he asked Defendant if she had a medical condition 8
and receiv ed a negative response

. He then explained how to perform the test, and 9
demonstrated for Defendant how she was to perform the walk and turn and one leg 10
stand test

. 11

{ 8 } In describing Defendant’s performance on the walk and turn test, Officer 12 Holguin testified that Defendant took her shoes off, could not keep her stance before 13 starting, had the wrong foot in front, stepped off the line during the test two times , 14
and did not turn as demonstrated. Officer Holguin identified these errors as clues 15 suggesting intoxication. During the one leg stand test , according to Officer Holguin, 16 Defendant put her foot down, was swaying, used her arms for balance, and stopped 17 the test prematurely. Based on her performance on these two tests, Officer Holguin 18
believed that Defendant was under the influence of marijuana

. H e placed her under 19

arrest. 205 { 9 } Officer Holguin then read Defendant the Implied C onsent Act advisory and 1 asked whether she would agree to a breathalyzer test . Defendant asked him to read 2 the advisory again and he did. Both times the advisory included telling Defendant 3 that she had a right to an independent chemical test. She initially refused consent to 4 a breathalyzer test

. A fter further explanation, she co nsented. 5

{1 0 } Defendant was handcuffed, plac ed in the back seat of the police vehicle , and 6 taken to the police station where she was given a breathalyzer test. The test showed 7 no alcohol in her system. Officer Holguin testified that he requested that a DRE 8 perform an examination, known as a DRE examination

. Officer Holguin then 9 testified, without defense objection, that he believed Defendant had refused the DRE 10
examination

. 11

{1 1 } Officer Ryan Postenrieder, the DRE who was called to examine Defendant , 12
testified next as a prosecution witness. Officer Postenrieder testified that he was 13
asked to conduct a DRE examination of Defendant. He went to the jail cell where 14
Defendant was being held , introduced himself, and read Defendant the standard 15
Miranda warnings from the card he carried

. Officer Postenri e der did not read 16
Defendant the Implied Consent Act advisory

. After giving Defendant Miranda 17 warnings, h e asked her whether she would agree to a DRE exam ination . She asked 18
what that was. Officer Po stenrieder told her “that [he] was going to continue to talk 19

to [Defendant] about what was going on and ask her more questions.” Defendant 206 then refused to answer his questions. Officer Postenrieder honored her refusal and 1
left the cell. 2

{1 2 } There was no defense objection to Officer Postenrieder’s testimony as to 3
Defendant’s refusal to be questioned

. Defendant later took the stand and testified 4 that she refused to answer Officer Postenrieder’s questions stating, “ B ecause it is my 5 right.” In closing argu ment, the prosecution twice relied on Defendant’s refusal to 6 answer Officer Postenrieder’s questions , arguing to the district court that her refusal 7 to participate in the DRE examination showed Defendant’s consciousness of guilt

. 8 Again, no objection was made. 9

{1 3 } Defendant was again convicted in the district court of DUI, contrary to 10
LCMC , § 27

- 12

- 6

- 12.1(C) , and driving without a license, contrary to L CMC , § 27

- 11
12

- 6

- 12.5. The district court’s judgment relies on Defendant’s “refus [ al ] to take the 12
DRE e valuation” as support for the conviction

. The district court notes that it 13
reviewed the officer ’s lapel video exhibit and conclude d , based on the video , that 14
Defendant “was unable to follow the instructions of the officer as he conducted the 15

. . . HGN test ” ; on the walk and turn test, Defendant “could not keep her instructional 16 stance, stood with the incorrect foot in front, stepped offline, made an impro per turn 17 and again stepped offline on her return walk” ; and , on the one leg stand, Defendant 18

“ placed her foot down on the sidewalk , used her arms for balance, began swaying, 197 again placed her foot down and stopped performing the test before being instructed 1

t o stop. ” 2

{1 4 } Defendant was sentenced to ninety days for her D U I conviction , and an 3
additional ninety days for driving without a license , both of which were suspended

. 4 Defendant did not object to the ninety

- day suspended sentence f or driving without a 5
license , even though that sentence was not authorized by the municipal ordinance

. 6
Defendant instead r el ie d on her 180

- day suspended sentence to claim that she was 7
denied her right to a jury trial , allegedly contrary to both the Sixth Amendment of 8 the United States Constitution, and the Fourteenth Amendment’s Equal Protection 9
Clause , claims she pursues in this appeal

. The district court concluded that 10
Defendant had no right to a jury trial. 11

{1 5 } This appeal followed. 12
DISCUSSION 13
I
. The Prosecution Improperly Questioned Witnesses and Commented on 14 Defendant’s Post

- Miranda Warning Silence 15

{1 6 } Defendant contends that the prosecutor’s question s and comments about 16
Defendant’s refus al to speak with Officer Postenrieder in conjunction with his 17
attempt to perform a D RE examination were impermissible questions and 18 commentary on Defendant ’ s post

- arrest and post

- Miranda warning silence , in 19
viol ation of Defendant’s Fifth Amendment right against self

- incrimination; her 20 Fourteenth Amendment right to due process ; and New Mexico’s Rule 11

- 403 218 NMRA , prohibiting the introduction of evidence that is more prejudicial than 1 probative

. We agree that reversal is required. 2
A. The Prosecutor’s Questions About Defendant’s R efusal to Answer the 3 DRE’s Questions Violated Defendant’s Fifth Amendment Privilege 4 Against Self

- Incrimination and Her Right to Due Process 5

{1 7 } Where the facts are not in dispute, we review de novo the legal question of 6 whether the prosecutor improperly elicited testimony about or improperly 7
commented on a d efendant’s post

- arrest silence. State v. Foster , 1998

- NMCA

- 163, 8 ¶ 8, 126 N.M. 177, 967 P.2d 852. 9

{1 8 } Officer Postenrieder was called to the stand by the prosecution to testify about 10
Defendant’s refusal to take the DRE examination. It is undisputed that at the time 11
Defendant was questioned by Officer Postenrieder she was under arrest and in police 12 custody

. It is also undisputed that Officer Post en rieder gave Defendant standard 13
Miranda warnings immediately after introducing himself. These warnings include 14
advi sing Defendant that she had the right to remain silent and that her silence would 15 not be used against her. See State v. Salazar , 1997

- NMSC

- 044, ¶ 60, 123 N.M. 778, 16 945 P.2d 996 (noting that Miranda holds that the United States Constitution requires 17
advice to a n accused that the defendant has the right to remain silent as a condition 18
of using incriminating statements made by the defendant in a custodial 19 interrogation). After being given the Miranda warning, Defendant invoked her right 20
to remain silent. 219 {1 9 } T he City attempts to distinguish this case from the general rule that the 1 prosecution cannot question a law enforcement officer about a d efendant’s post

2
Miranda warning silence or comment on that silence by claiming that the DRE 3

e xamination is not testimonial and elicits primarily physical evidence. Because the 4 Fifth Amendment right against self

- incrimination applies only to testimonial 5 evidence, and not to refusal to provide physic al evidence, the City claims that it was 6
free to introduce evidence of Defendant’s refusal to take the DRE examination, to 7

comment on that refusal , and to a rgue to the district court that her refusal was 8
evidence of her consciousness of guilt. We are not persuaded. 9

{ 20 } T he City is correct that Miranda warnings are designed to protect an accused’s 10
Fifth Amendment right against self

- incrimination, and that the right against self

11
incrimination applies to requests for testimonial or communicative evidence and not 12

to requests for physical evidence

. S ee City of Rio Rancho v. Mazzei , 2010

- NMCA

13
054 , ¶ ¶ 25, 27, 148 N.M. 553, 239 P.3d 149 (holding that the right against self

14 incrimination does not appl y to physical evidence and that Miranda warnings are 15 not required prior to being advised and tested pursua nt to the Implied Consent A ct 16 for such evidence). The City is not correct, however, that this exception is applicable 17
to Defendant’s invocation of her right to remain silent in the context of a DRE 18
examination

. We explain. 1910 { 2 1} “Interrogation” subject to Miranda safeguards “come [ s ] into play whenever a 1 person in custody is subjected to either express questioning or its functional 2 equivalent.” State v. Alvarado , 2019

- NMCA

- 051, ¶ 11, 448 P.3d 621 ( internal 3 quotation marks and citation omitted)

. T he testimony of Officer Postenrieder at trial 4
revealed that he sought Defendant’s consent to question her about her consumption 5 of drugs and about whether she was intoxicated, the central element s of the crime of 6
D UI

. See State v. Widmer , 2020

- NMSC

- 007, ¶ 1 9, 461 P.3d 881 (explaining that 7 any questioning related to evidence of a crime is subject to Miranda safeguards)

. 8
Officer Postenrieder did not ask to physically examine Defendant, nor did he seek 9 her permission for breath or blood testing , as required by the Implied Con sent Act

. 10

{ 22 } After giving Def e ndant Miranda warnings, Officer Postenrieder testified that 11
he asked her whether she would agree to a DRE exam ination . She asked what that 12
was. He told her “that [he] was just going to continue to talk to her about what was 13 going on and ask her more questions.” Stated differently, when asked by Defendant 14
what the DRE exam ination entailed, Officer P o stenrieder’s response was effectively 15 an expression of his intent to question Def endant about her guilt. 16

{ 23 } The p urpose of Miranda warnings is to “grant the suspect an awareness of the 17 right so the suspect can make a knowing , intelligent and voluntary choice to speak.” 18
State v. Filemon V. , 2018

- NMSC

- 011, ¶ 48, 412 P.3d 1089. Defendant , in custody, 19 provided with the Miranda warning and the information that Officer Postenrieder 2011 wanted to interrogate her, invoked her right to remain silent and refuse d to answer 1 Officer Postenrieder’s questions

. Such a circumstance is distinct from a de fendant 2 refusing to provide physical evidence

. 3

{ 24 } We see no merit to the City’s claim that because there are other parts of the 4
DRE examination that re ly on physical e vidence, the City is free to introduce as 5 evidence of guilt Defendant’s refusal to answer Officer Postenrieder’s questions

— 6 questions that called for spoken answers. In its decision in Doyle v. Ohio , 42 6 U.S. 7 610, 618 (1976) , the United States Supreme Court held that allowing the prosecution 8 to introduce evidence that a defendant exercised their Fifth Amendment right and 9
remained silent in the fac e of police questioning , after having been assured by a 10
Miranda warning that there would be no penalty for doing so , would be a violation 11 of due process. See id. (holding that in light of the assurance implicit in the Miranda 12 warning that silence will carry no penalty, “it would be fundamentally unfair and a 13 deprivation of due process” t o allow post

- Miranda silence to be used in a criminal 14 trial “to impeach an explanation subsequently offered at trial”). A defendant has a 15 right to rely on the state’s promise that their silence will not be used to convict them

. 16
See Foster , 1998

- NMCA

- 163, ¶ 14 (“[I]t is fundamentally unfair under the United 17 States Constitution to impeach the defendant ’ s testimony by means of evidence of 18
the defendant ’ s invocation of the right to silence after receiving Miranda 19 warnings.” ). 2012 { 25 } Officer Postenri e der’s request of Defendant did not describe or ask her 1 consent for any portion of the DRE examination other than conducting an 2 interrogation, nor did he distinguish the consequences of a refusal by Defendant to 3 provide physical evidence from the Miranda warning’s assurance that her refusal to 4 answer his questions would not be used against her. Defendant , therefore, had a due 5 process right to rely on the Miranda warning ’s promise that her refusal to participate 6
in the DRE examination would not be used by the prosecution at trial to imply her 7 guilt

. 8
B. The Admission of Evidence of Defendant’s Silence Was Plain Error 9

{ 26 } In State v. Lara , 1975

- NMCA

- 095, ¶ 10 , 88 N.M. 233, 539 P.2d 623 , this 10
Court held that the admission of evidence about a defendant’s invocation of their 11 right to remain silent, even if not objected to by the defense, requires reversal as 12 plain error

. See Rule 11

- 103(E) NMRA ( provid ing that, even if not properly 13 preserved, “[a] court may take notice of plain error affecting a substantial right”)

. 14
B ecause silence is often too ambiguous to have great probative force and may be 15 given improper weight by a jury or the court, this Court adopt ed a per se rule that 16 questioning about a d efendant’s silence by the prosecution , absent some valid reason 17 apart from implying guilt from a refusal to answer, is so prejudicial that reversal is 18 always required. See Lara , 1975

- NMCA

- 095, ¶ ¶ 6, 10; see also S tate v. Baca , 1976

- 19
NMSC

- 015, ¶ 5, 89 N.M. 204, 549 P.2d 282 (“ Any reference to the defendant’ s 2013 silence by the state, if it lacks significant probative value, constitutes plain error 1
under [ Rule 11

- 103(E)] of the New Mexico Rules of Evidence. As such it would 2 require reversal, as stated in the Lara case, even if the defendant fails to timely 3 object. ” )

. Reversal is therefore required here. 4
II
. Sufficient Evidence Supported Defendant’s Conviction 5

{ 27 } Defendant claims that the evidence in the recor d is insufficient to support her 6 conviction. We consider this argument, even though we ar e reversing her conviction, 7

t o determine whether remand for a new trial is permitted. See State v. Gonzales , 8
2013

- NMSC

- 016, ¶ 17, 301 P.3d 380 ( “ [T] he Double Jeopardy Clause precludes a 9
second trial once the reviewing court has found the evidence legally insufficient .” 10 (internal quotation marks and citation omitted) ). 11

{ 28 } “When considering whether sufficient evidence exists to support retrial, we 12
consider all evidence

— even that which was wrong fully admitted.” State v. Miera , 13
2018

- NMCA

- 020, ¶ 47, 413 P.3d 491

. We “view the evidence in the light most 14 favorable to the state, resolving all conflicts therein and indulging all permissible 15
inferences therefrom in favor of the verdict.” State v. Storey , 2018

- NMCA

- 009, ¶ 45, 16 410 P.3d 256 (internal quotation marks and citation omitted). We then determine 17 “whether the evidence, viewed in this manner, could justify a finding by any rational 18 trier of fact that each element of the crime charged has been estab lished beyond a 19
reasonable doubt.” Id. (internal quotation marks and citation omitted). 2014 { 29 } L CMC , § 27

- 12

- 6

- 12.1( C), the ordinance under which Defendant was 1
convicted of D U I , states as follows: 2 It is unlawful for any person who is under the influence of any drug to 3 a degree which renders the person incapable of safely driving a vehicle 4 to drive any ve hicle within this municipality. 5

{ 30 } To the extent Defendant is arguing that a conviction under this ordinance 6 requires direct evidence of erra tic driving to convict , we do not agree. The ordinance 7 permits conviction based upon evidence that the accused is under the influence of a 8 drug “to a degree which renders the person incapable of safely driving

. ” Id. The 9 factfinder is permitted to determine from viewing the video of Defendant perfor m ing 10 the field sobriety tests , and from listening to t he testimony of Officer Holguin 11 concerning his observations , the degree to which Defendant was impaired . From the 12 degre e of impairment, the factfinder is permitted to draw an inference that Defendant 13

was not capable of safely driving. 14

{ 31 } Our review of the transcript reveals sufficient evidence of Defendant’s 15
intoxication to support a finding by a rational factfinder that Defendant was under 16 the influence of marijuana to a degree that impaired her ability to drive safely. 17 Officer Holguin’s testimony that there was a strong smell of marijuana from the 18 passenger side of the vehicle , combined with his testimony that perfume is often 19
used to cover the smell of marijuana , suggested recent use of marijuana

. The district 20 court found Defendant’s contrary testimony not to be credible

. To the extent 2115 Defendant asks us to disregard the court’s credibility determination and give more 1 weight to her testimony, we will not do so. See State v. Urioste , 2002

- NMSC

- 023, 2 ¶ 6, 132 N.M. 592, 52 P.3d 964 ( “As a reviewing court we do not sit as a trier of 3 fact; the district court is in the best position to resolve questions of fact and to 4 evaluate the credibility of witnesses.” )

. Nor will we second

- guess the district court’s 5 evaluation of the extent of intoxication demonstrated by Defendant in the field 6 sobriety tests. 3 In evaluating the suffici ency of the evidence, we also consider the 7
evidence that Defendant refused the DRE examination

. 8

{ 32 } Taken together, with all inferences drawn in favor of the verdict, see Storey , 9
2018

- NMCA

- 009, ¶ 45 , th e evidence is sufficient to justify a finding by a rational 10 factfinder that each element necessary to support a conviction was established by 11 evidence beyond a reasonable doubt. Therefore, there is no double jeopa rdy bar to 12
retrial. See State v. Dowling , 2011

- NMSC

- 016, ¶ 47, 150 N.M. 110, 257 P.3d 930 13 ( holding that retrial is not barred when sufficiency of the evidence challenge fails). 14

3 We note that Defendant argues as part of her sufficiency of the evidence argument that the field sobriety tests are not scientifically valid measures of intoxication with marijuana. Defendant, however, did not object to the admission of this evidence at trial. Defendant’s claim that this evidence should have been excluded as scientifically unreliable, therefore, was not pr eserved in the district court and we will not review it on appeal. See State v. Lente , 2005

- NMCA

- 111, ¶ 11, 138 N.M. 312, 119 P.3d 737 (“In order to preserve an issue for appeal, a defendant must make a timely objection that specifically apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon. ”).16 II I
. A Sentencing Error Does Not Give Defendant a Right to a Jury Trial 1

{ 33 } Defendant’s claim on appeal that she has both a Sixth Amendment and a 2
Four teenth Amendment right to a jury trial is apparently founded on a sentencing 3

error . Although Defendant’s argument is far from clear , it appears that she is 4 claiming that this sentenc ing error subjected her to the possibility of six months in 5 prison , and , therefore, she was entitled to a jury trial

. 6

{ 34 } This argument is without merit. Defendant cannot rely on a sentencing error 7 to claim a right to trial by jury. The district court lacked jurisdiction to sentence 8
Defendant to more than 179 days in prison on her DUI conviction and to fine her 9 $126 on her conviction for driving without a l icense

. See L CMC , § 27

- 12

- 6

- 12.2(D) 10 (assessing sentencing, penalties , and fees for DUI ); LCMC , § 27

- 12

- 14

- 4 (assessing 11
fine for no license)

. See State v. Trujillo , 2007

- NMSC

- 017 , ¶ 10, 141 N.M. 451, 157 12 P.3d 16 (“A trial court’s power to sentence is derived exclusively from statute.” 13 (internal quotation marks and citation omitted) )

. T herefore , Defendant could not be 14 sentenced to six months or more in prison and had no right to a jury trial. 15

{ 35 } The appropriate remedy for the sentencing error that underlies Defendant’s 16 jury trial argument is to vacate the unauthorized ninety

- day sentence for driving 17
with out a license , and remand for imposition of the sentence authorized by LCMC , 18 § 27

- 12

- 14

- 4 for driving without a license : a $126 fine. 1917 I V
. Defendant Was Informed of Her Right to a Chemical Test 1

{ 36 } Defendant’s argument that she was not informed of her right to an independent 2 chemical test, in conformance with the requirements of the Implied Consent Act, see 3 § 66

- 8

- 109 (B) , is not supported by the record. Defendant admits in her appellate 4
brief that the entire Implied Consent Act’s statutory notice was read to her before 5
she consent ed to a breathalyzer test. Indeed, it was read to her twice. We therefore 6 do not consider this argument further. 7
CONCLUSION 8

{ 37 } We conclude that Defendant's conviction for D U I was supported by 9
substantial e vidence. However, the admission of Defendant ’ s post

- Miranda warning 10
refusal to take the DRE examination requires reversal. We therefore reverse and 11
remand for a new trial. We also vacate Defendant’s sentence for driving without a 12
license and remand for correction of he r sentenc e in accordance with this opinion. 13

{ 38 } IT IS SO ORDERED. 14

__________________________________ 15 JANE B. YOHALEM, Judge 16
WE CONCUR: 17

_________________________________ 18 J. MILES HANISEE, Judge 19

_________________________________ 20 KRISTINA BOGARDUS, Judge 21