 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
In re Administrative Revocation Hearing of Abel G. Suazo6/23/1994
CONCLUSION
Though we do not prescribe a specific time limit, based on the criteria here established, we readily conclude as a matter of law that Suazo's change of mind after two hours and fifteen minutes was unreasonable. We remand this matter to the Court of Appeals for entry of a mandate to the district court to amend its order consistent with this opinion.
IT IS SO ORDERED.
STANLEY F. FROST, Justice
WE CONCUR:
RICHARD E. RANSOM, Justice
GENE E. FRANCHINI, Justice
SETH D. MONTGOMERY, Chief Justice, (Not Participating)
JOSEPH F. BACA, Justice, (Specially Concurring)
SPECIAL CONCURRENCE
BACA, Justice. (Specially Concurring)
I concur with the majority in affirming the suspension of Suazo's driver's license for one year. I do not, however, concur in the majority's adoption of a subsequent consent rule that permits a driver to cure an initial refusal to take a blood-alcohol test by later consenting to the test. I believe that the plain language of the Implied Consent Act (The "Act") permits no opportunity to cure an initial refusal to submit to the blood-alcohol test. Section 66-8-111(A) states that once an arrestee refuses a law enforcement officer's request to submit to chemical tests, no tests shall be administered. Under Section 66-8-111(B), the Director of MVD must revoke the arrestee's driver's license once refusal to submit to the tests has been established. These provisions provide no window of opportunity for an arrestee to cure an initial refusal through subsequent consent.
The underlying reason the Act does not provide an opportunity to cure an initial refusal is found in Section 66-8-107(A), which states in pertinent part:
any person who operates a motor vehicle within this state shall be deemed to have given consent. . . to chemical tests of his breath or blood . . . for the purpose of determining the drug or alcoholic content of his blood if arrested for any offense arising out of the acts alleged to have been committed while the person was driving . . . under the influence of an intoxicating liquor or . . . drug.
(Emphasis added.) This provision recognizes that operating a motor vehicle in New Mexico is a privilege, not a right, and that a person operating a motor vehicle within the state automatically agrees to consent to chemical tests as part of the privilege of driving. In other words, consent is already given the moment a person commences operation of a motor vehicle on state highways and streets, and later refusal to submit to the test in the face of arrest breaks this implied covenant with the state, thereby subjecting the driver to mandatory revocation of the driving privilege.
Perhaps the opportunity to reasonably cure an initial refusal to take a blood-alcohol test is justifiable. As the majority points out, a driver may suffer from momentary fear or confusion when faced with arrest. Momentary fear or confusion may cause the driver to initially refuse to take the chemical tests. The Act, however, sets out a bright line rule providing no opportunity to cure the initial refusal under any circumstances. I would leave to the legislature the task of modifying this bright line rule. See (Baca, J., Concurring in part, Dissenting in part) (stating "it is our duty not to replace the legislature's judgment with our own").
JOSEPH F. BACA, Justice
Page 1 2 3 4 5 6 7 8 New Mexico DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|