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State v. Suazo3/17/1993
CHAVEZ, Judge.
The state appeals the district court's reversal of the revocation of appellee Abel Suazo's driver's license. Two issues are raised on appeal. First, the state contends Suazo refused to take a chemical breath test as required by NMSA 1978, Section 66-8-107 (Repl. Pamp. 1987). Second, the state argues Suazo's refusal to take a chemical breath test was not cured by taking a chemical blood test some two hours after his refusal to take the chemical breath test. We reverse and remand for further proceedings.
FACTS
Suazo was arrested for driving under the influence of intoxicating liquor or drugs following an accident that occurred at 9:30 p.m. on January 11, 1990. The arrest occurred at the Espanola Hospital where Suazo was first taken after the accident. Suazo was transported from the hospital to the State Police office in Espanola where he was asked to take a breathalzyer test and was advised that refusal to take the test would result in revocation of his driver's license for one year. Suazo agreed to take the breath test and was given three opportunities to blow into the machine, the first occurring at 10:56 p.m. Each time, he failed to breathe hard or long enough to register a result. Officer James
Henderson of the New Mexico State Police, who administered the breath test, then determined that Suazo refused to take the test.
After the attempt to administer the breath test, Officer Henderson transported Suazo to St. Vincent's Hospital in Santa Fe for treatment of injuries Suazo sustained in the accident. Suazo was examined and treated by a doctor at St. Vincent's between midnight and 1:00 a.m. on January 12, 1990. While at the hospital, Suazo, after consultation with counsel, requested that he be allowed to take a blood test. Officer Henderson agreed to Suazo's request and a blood alcohol test was administered shortly after 1:00 a.m.
At the hearing to determine whether Suazo's driver's license should be revoked for refusing to take the breath test, Suazo contended that, because of injuries he sustained in the accident, he was physically unable to blow sufficiently. A letter was introduced from a physician opining that Suazo would have had great difficulty in blowing due to his injuries, and that a blood test would be more accurate than a breath test under the circumstances. Officer Henderson testified, on the other hand, that he had seen no reason why Suazo could not blow into the machine on the night of the accident.
1. DID SUAZO REFUSE TO TAKE THE CHEMICAL TEST?
NMSA 1978, Section 66-8-111(B) (Repl. Pamp. 1987), provides in pertinent part that a person's license shall be revoked when, upon the request of a police officer, "the person refused to submit to a chemical test after being advised that failure to submit could result in revocation of his privilege to drive . . . ."
NMSA 1978, Section 66-8-112(G) (Repl. Pamp. 1987), provides that a person whose license is revoked may seek review of the decision in district court and further:
On review, it is for the court to determine only whether reasonable grounds exist for revocation or denial of the person's license or privilege to drive based on the record of the administrative proceeding.
This Court has stated that refusal to submit to a breath test is a question of fact. See . Although Suazo introduced a letter from a physician supporting his claim that he could not breathe hard enough to properly take the test, the fact finder may disregard expert o
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