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In re Administrative Revocation Hearing of Abel G. Suazo6/23/1994
Frost, Justice.
The New Mexico Implied Consent Act, NMSA 1978, Sections 66-8-105 through 66-8-112 (Repl. Pamp. 1987 & Cum. Supp. 1993), provides that a motorist, upon refusing to take a blood-alcohol test after being arrested for driving under the influence of alcohol, shall have his or her driver's license suspended for one year. Section 66-8-111(A) & (B) (Repl. Pamp. 1987). We granted certiorari to decide whether a subsequent change of mind can nullify the motorist's initial refusal to take the blood-alcohol test.
We resolve the issue against the motorist and reverse in part the opinion of the court of appeals. We also take this opportunity to establish criteria that, under limited circumstances, would permit a motorist to "cure" an initial refusal to take a sobriety test.
I. FACTS
On January 11, 1990, about 9:30 p.m. Defendant-Appellee Abel G. Suazo was involved in a two-vehicle accident near Espanola, New Mexico. Officer James Henderson, of the New Mexico State Police, was dispatched to the scene. Though he detected alcohol on Suazo's breath, he permitted Suazo to go to Espanola Hospital to be with his daughter who was injured in the accident.
At the hospital the officer gave Suazo a field sobriety test in which he was unsteady and unable to follow instructions when told to walk and turn, walk heel to toe, and stand on one foot. Based on the field sobriety test, Suazo was arrested and asked to take a breathalyzer test to determine his blood alcohol content (BAC) according to Section 66-8-107 (Repl. Pamp. 1987). Officer Henderson advised Suazo that, as specified in Section 66-8-111 parts (A) and (B) of the Implied Consent Act, refusal to take the test would result in revocation of his license for one year. Suazo agreed to take the test and between 10:56 and 10:57 p.m. he made three
attempts. On each attempt he did not breathe hard enough or long enough to obtain an adequate breath sample. Though he said nothing at the time, and although Henderson saw no physical reason for Suazo's inability to take the test, Suazo later claimed he could not generate enough air pressure because of injuries surrounding his mouth.
Officer Henderson determined that Suazo's failures were willful and amounted to a refusal to take the test. He noted this observation on the "Notice of Revocation and Right to Hearing" form and informed Suazo his license was revoked for one year based on his refusal to submit to a chemical test. Henderson drove Suazo to the Santa Fe County Detention Center. En route, Suazo requested to be taken to St. Vincent's hospital for medical treatment. At the hospital Suazo called his attorney, who came to St. Vincent's from Espanola to discuss the incident with Henderson. On his lawyer's advice, Suazo agreed to take a blood test. About 1:15 a.m., January 12, 1990, the test was administered, three hours and forty-five minutes after the accident, and two hours and fifteen minutes after the initial refusal to take the test. The test showed a BAC of .04% by weight.
At the hearing on Suazo's license revocation at the Motor Vehicle Division of the Taxation and Revenue Department (MVD), the hearing officer determined that Suazo's failure to complete the breathalyzer test in Espanola constituted a refusal to take the test and upheld revocation of his license for one year. On appeal, the district court reversed the hearing officer's decision, finding that the failure to register a result on the breathalyzer was no
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