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State v. Kanikaynar3/26/1997
ALARID, Judge.
{1} Defendant pled guilty to aggravated driving while intoxicated (DWI) contrary to NMSA 1978, Section 66-8-102 (Repl. Pamp. 1994). The basis for the aggravation was Defendant's refusal to submit to a chemical test that would determine the alcohol concentration of his breath. See § 66-8-102(D)(3). Pursuant to Section 66-8-102(F)(2), his sentence included an additional sixty days minimum mandatory confinement. He appeals the imposition of the additional sixty days of confinement, contending the provision is unconstitutional because it infringes upon his Sixth Amendment right to counsel, violates his right to due process, is void for vagueness, and criminalizes the exercise of his right to be free from warrantless searches and seizures. Because we do not agree that the statutory scheme violated Defendant's rights, is void for vagueness, or that the statute criminalizes the exercise of his Fourth Amendment rights, we affirm his convictions.
I. BACKGROUND
{2} When Defendant entered his guilty plea to the charge of DWI, his counsel told the court that Defendant admitted that he had refused to submit to chemical testing, an element of aggravated DWI, but stated that Defendant did not concede that the increased mandatory minimum sentence for aggravated DWI was proper in this case. The district court sentenced Defendant to 364 days in jail, suspending all but the mandatory minimum of thirty days required for a third DWI offense plus the mandatory sixty days required under Section 66-8-102(F)(2) for the aggravation of a third offense. The district court specifically stated that its intent was for Defendant to serve no more than the mandatory period of incarceration required by law, and ordered the execution of the sixty-day enhancement for the aggravation be stayed pending appeal.
II. DISCUSSION
A. Aggravated DWI Provisions Do Not Violate Due Process
{3} Under Section 66-8-102(D)(3), a person found guilty of DWI, and who refuses to submit to a chemical test to determine the concentration of alcohol in his blood or breath, is guilty of aggravated DWI. Our Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (Repl. Pamp. 1994), requires that a suspect be advised that refusal will result in a driver's license revocation. Section 66-8-111(B). However, there is no requirement that the suspect be informed of the criminal consequences created by Section 66-8-102. Defendant contends that the aggravation of his DWI conviction for his refusal to submit to a chemical test when he was not advised of the criminal consequences of that refusal violates the due process provisions of both the United States and the New Mexico Constitutions. We do not agree.
{4} An analogous issue to the argument advanced by Defendant here was argued in South Dakota v. Neville, 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983). The Court held that there was no denial of due process where the defendant was warned that his refusal to submit to a breath alcohol test (BAT) could result in the imposition of administrative penalties, but was not warned that his refusal could be used in evidence in his prosecution. The Neville Court distinguished Doyle v. Ohio, 426 U.S. 610, 616-20, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), which held that the warning prescribed by Miranda v. Arizona, 384 U.S. 436, 468, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), carried with it the implicit promise that post-arrest silence could not be used to impeach his testimony at trial. The Court recognized that while the right to silence is implicit in the Miranda warnings, the "right to refuse the blood-alcohol test, by contrast, is simply a matter of grace bestowed by the South Dakota l
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