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Fugere v. State4/6/1995
The opinion filed February 28, 1994 is withdrawn and the following substituted therefor.
Albert R. Fugere appeals from an order of the district court affirming the decision of the Motor Vehicle Division of the Taxation and Revenue Department (MVD) revoking his driver's license for one year for refusing to submit to a breath test under the New Mexico Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (Repl. Pamp. 1987 & Cum. Supp. 1993) (the Act). We consolidate Fugere's issues on appeal and address them as follows: (1) whether Fugere's actions constituted a refusal to take a breath test and, if so, whether Fugere cured that refusal with a subsequent consent; (2) whether Fugere's due process rights were violated; and (3) whether the hearing officer acted arbitrarily and capriciously in revoking Fugere's driver's license. We affirm.
Before turning to the facts of the appeal, we first address Fugere's motion to strike certain exhibits, and any reference to them, which he contends were introduced as evidence for the first time on appeal. Fugere filed a motion to strike in response to the MVD's alleged improper attempt to supplement the record. The motion was held in abeyance pending submission of the case to a panel. Specifically, Fugere contends that a document from the Scientific Laboratory Division and a portion of the Driving While Intoxicated Prosecutor's Manual referred to by the MVD in its answer brief should be stricken because they were not introduced into evidence during any prior proceedings. See . After reviewing the record of the administrative hearing, we grant Fugere's motion and strike the exhibits. We note that neither of the exhibits referred to were relied upon by this Court in deciding this case on appeal. See ) (matters not of record will not be considered on appeal).
FACTS
The following facts were established at the administrative hearing. On November 28, 1993, Fugere was stopped by Officer Roger Romero of the Santa Fe Police Department. Officer Romero stopped Fugere for failing to maintain his lane, accelerating rapidly, clipping a median, weaving, and nearly causing an accident by failing to yield to an oncoming vehicle. Fugere admitted to drinking three beers. After noticing a strong odor of alcohol on Fugere's breath, his blood-shot watery eyes, and his slurred speech, Officer Romero administered a field sobriety test. Based on the results of the field sobriety test, Officer Romero placed Fugere under arrest for driving while intoxicated. Fugere was then asked to take a breath test to determine his blood-alcohol content. Officer Romero advised Fugere that under the Act, he was required to submit to a breath test and that if he refused to take the test, he could lose his license for a period of one year.
At that point, Fugere refused to take the test on the RBT III Alco-Sensor (RBT) located in Officer Romero's vehicle, but stated that he would agree to take the breath test on the stationary breathalyzer machine located at the police station. Officer Romero advised Fugere that Fugere could not select what test was to be administered, but that if he took the RBT test, he could take any additional tests thereafter, if he chose to do so. Fugere was offered the breath test on the RBT several times but he continually responded that he wanted to take the test on the machine at the police station because he did not trust the RBT. Shortly thereafter, Officer Romero transported Fugere to the Adult Detention Center and, once again, offered Fugere the test on the RBT. Fugere again refused, stating that he wanted to take the test on the machine at the police station. Determining that Fugere's responses constituted a ref
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