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State v. Duquette12/30/1999
{1} Glenn Duquette (Defendant) appeals his conviction for driving while under the influence of intoxicating liquor (DWI) and his sentence as a fourth-time DWI offender. Defendant argues that the trial court erred in denying his motion to suppress his blood-alcohol test results and his motion for a mistrial. We affirm.
BACKGROUND
{2} Officer Richard Alvarez was dispatched to a domestic dispute and was informed that a light-blue Nissan was leaving the residence. On his way to the residence, Officer Alvarez observed a Nissan truck that matched the dispatcher's description. Officer Alvarez pulled the truck over and informed Defendant why he had been stopped. Defendant admitted that he had come from the residence in question. Officer Alvarez observed that Defendant had bloodshot eyes and slurred speech. Defendant admitted having consumed three beers. Defendant refused to perform a field sobriety test and was arrested for DWI.
{3} At the police station, Defendant again refused to take a field sobriety test. Officer Alvarez read Defendant his rights under the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 1993), and asked Defendant to take a breath test. Defendant became belligerent, directed profanities at the officers, and refused to take the breath test. However, Defendant later agreed to take the test. Defendant's first attempt at taking the test resulted in an "invalid sample" and his second attempt resulted in a reading of "no sample introduced."
{4} Officer Alvarez, having obtained and reviewed Defendant's driving record, believed that he was investigating Defendant's fourth DWI. Because of this belief and the fact that he was unable to obtain a breath test result from Defendant, Officer Alvarez obtained a search warrant to take a blood sample from Defendant. The blood test revealed that Defendant's blood-alcohol level exceeded the legal limit for driving a motor vehicle. The State charged Defendant with DWI, in violation of Section 66-8-102.
{5} At trial Defendant moved to suppress the blood-test results, arguing that the search warrant affidavit did not demonstrate probable cause and that the Legislature did not intend for a DWI to be the felony needed to obtain a search warrant under Section 66-8-111(A), which permits a search warrant authorizing chemical tests when an officer's affidavit states probable cause to believe that a suspect has committed a felony while under the influence of alcohol. The court denied the motion and allowed the blood-test evidence to be presented to the jury. The next day, before closing arguments, Defendant moved for a mistrial, arguing that Section 66-8-111(A) requires the suspect to refuse to submit to a chemical test before a search warrant may be obtained. The trial court denied Defendant's motion and allowed the case to go to the jury. The jury found Defendant guilty of driving with an alcohol concentration of .08 or more. The trial court held that this conviction was Defendant's fourth DWI and that pursuant to Section 66-8-102(G), Defendant had committed a fourth-degree felony.
DISCUSSION
{6} Defendant raises three issues on appeal. First, Defendant argues that the trial court erred by denying his motion to suppress because the search warrant affidavit did not demonstrate probable cause that he had committed a felony while under the influence of alcohol, as required under Section 66-8-111(A). Second, Defendant argues that the motion to suppress should have been granted because the Legislature did not intend for the DWI offense to be used as the felony for which there must be probable cause to justify a search warrant under Section 66-8-111(A). Fina
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