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Marez v. State3/17/1995
BUSTAMANTE, Judge.
The Motor Vehicle Division (MVD) revoked Appellant Kenneth Marez' (Marez) driver's license pursuant to the New Mexico Implied Consent Act. NMSA 1978, §§ 66-8-105 through 66-8-112 (Repl. Pamp. 1994). The revocation was based on Marez' refusal to take a breath-alcohol test. Marez appealed to the district court of Bernalillo County. The district court affirmed the revocation. Marez now appeals the district court's affirmance. We are asked to address whether the Implied Consent Act and the criminal driving-while-intoxicated (DWI) charging statute, NMSA 1978, Section 66-8-102 (Repl. Pamp. 1994), are unconstitutional, in that they violate Marez' Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. We hold that there was no violation of Marez' constitutional rights and that Marez has no standing to challenge the constitutionality of Section 66-8-102.
us FACTS
On January 24, 1994, Marez was arrested and transported to the Bernalillo County Detention Center (BCDC). Marez does not challenge the arrest as such. At the BCDC the required provisions of the Implied Consent Act were read to him, advising him, among other things, that if he refused to submit to a chemical test of his breath, he could have his driver's license revoked for a period of one year. Sections 66-8-111(B), 66-8-112(E)(4)(b). Marez was then asked to submit to a breath test in order to determine his blood-alcohol level. Marez was not advised that he had the right to an attorney at that time; nor was he advised that he had the right to remain silent prior to submitting, or refusing to submit, to the breath test. Marez verbally indicated his refusal to submit to chemical testing of his breath.
At both the MVD revocation hearing and the district court hearing on the appeal, Marez argued that Section 66-8-102(D)(3), which added refusal to submit to chemical testing under the Implied Consent Act as an alternative basis for charging aggravated DWI, deprived him of his Fifth and Sixth Amendment rights because Marez was placed in the position of committing a crime if he refused the breath test. Marez argues this was improper because, at the same time, he was informed he could not consult with counsel before he made his decision whether to refuse the breath test, and the police officers did not provide Marez the standard Miranda warning before he was requested to decide if he would take the breath test. Miranda v. Arizona , 384 U.S. 436 (1966). Marez asserted below and asserts here that the statutes cannot be applied constitutionally in the context of a civil revocation proceeding if they are unconstitutional in the criminal context.
The district court affirmed the revocation of Marez' driver's license. The court held that Marez' oral refusal to take a breath test was not testimonial, and therefore his right to remain silent was not compromised. The court also found Marez was not entitled to consult with an attorney prior to manifesting his decision to refuse to submit to the breath test. The court found the Implied Consent Act and related statutory sections constitutionally valid, and held that Marez' refusal to take the breath test was properly admitted as evidence against him at the administrative revocation hearing.
Discussion
There is a well-established line of cases in both the New Mexico courts and the United States Supreme Court that approves the use of implied consent acts as a valid exercise of the police power of the state. See; South Dakota v. Neville , 459 U.S
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