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State v. Walters12/30/1996
BOSSON, Judge.
{1} Defendant Ronald Walters appeals his conviction for aggravated driving while intoxicated (DWI) for refusing to take a blood alcohol test as requested by a New Mexico state police officer. See NMSA 1978, § 66-8-102(D)(3), (E) (Repl. Pamp. 1994). Defendant moved unsuccessfully to suppress incriminating evidence of DWI which resulted from his encounter with the police, arguing that the stop of his vehicle constituted an unconstitutional seizure. Defendant raises a single issue in this appeal: Whether the trial court erred in characterizing his contact with the officer as a community caretaker encounter and not a seizure, which did not implicate Fourth Amendment protections. We agree with the court below and affirm its denial of Defendant's motion to suppress.
FACTUAL AND PROCEDURAL BACKGROUND
{2} On January 2, 1994, just before midnight, Officer Charles Devine of the New Mexico State Police was on regular patrol when he observed Defendant's car turn east from U.S. 54 onto Dog Ranch Road in Alamogordo. Dog Ranch Road is about two to three miles long and connects U.S. 54 and Appler Road. It is an unlit, rural road with the surface changing from pavement to dirt. Officer Devine decided to follow the car, basing his decision on the lateness of the hour and on his knowledge, gained from police training and experience, that intoxicated drivers frequently take rural roads to avoid the police. Officer Devine has been a New Mexico state police officer for seven years and, on average, will handle ten DWI investigations in a five-day period.
{3} The posted speed limit on Dog Ranch Road was 35 miles per hour. Officer Devine testified that he drove at 45 miles an hour until he caught up with Defendant and then paced his car with Defendant's, traveling at about 30 miles per hour and maintaining a constant distance of two to three car lengths behind. While following Defendant, Officer Devine observed nothing about Defendant's driving to indicate he was intoxicated or violating the law in any other way.
{4} Defendant testified that he saw in his rear view mirror a car approach quickly and that the car lights appeared to shift from side to side on the dirt portion of the road creating the impression that the car was weaving. According to the officer, however, there was nothing that would have made his car appear to weave other than movement that naturally results from driving on a dirt road. Defendant acknowledged he could not see that the car behind him was a police vehicle.
{5} Defendant testified that he thought the other driver "wanted the road" and might be impaired, and therefore he pulled over quickly and came to a stop on the side of the road. The officer stated that at the place Defendant pulled over, Dog Ranch Road was about thirty feet wide and that there was room for another car to pass without Defendant pulling over and stopping. Also, Defendant was only about one hundred feet from the intersection of Dog Ranch Road and Appler Road when he stopped. Because there were no homes or driveways in the area to explain the abrupt stop, Officer Devine decided to pull over and inquire whether there was anything wrong with the driver or his car. He stopped his marked patrol car twenty to twenty-five feet behind Defendant's car and turned on his emergency lights. Officer Devine said this was standard practice so that a driver would not be apprehensive about being approached at night and to ensure that his patrol car would be visible to traffic and to other police officers.
{6} Officer Devine approached Defendant and asked him why he had stopped. Defendant responded that he wanted to see who was following him. When Defendant
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