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State v. Gutierrez4/24/2003
Defendant appeals from convictions of driving while under the influence of intoxicating liquor, speeding, and failing to obey a stop sign. He asserts (1) questions by the prosecutor violated his right to remain silent, and (2) violation of the six-month rule in Rule 5-604(B) NMRA 2003. We affirm.
BACKGROUND
Officer Gina La Brosse and Sergeant Randy Spear of the Police Department in Ruidoso, New Mexico, testified at Defendant's jury trial. The following occurred, according to their testimony. La Brosse spotted a vehicle running a stop sign and traveling twenty-seven miles per hour in a fifteen mile per hour zone. La Brosse engaged her emergency equipment and pursued the vehicle for three-tenths of a mile achieving speeds of fifty miles per hour, after which the vehicle pulled off the road into a restaurant parking lot. La Brosse did not lose sight of the vehicle during the pursuit.
After La Brosse pulled in behind the vehicle, with the emergency equipment still on, Defendant exited the vehicle and headed toward the restaurant. La Brosse asked Defendant to return to his vehicle and requested his driver's license, registration, and insurance. La Brosse smelled the odor of alcohol, and noticed Defendant's eyes were red and watery, and his speech was slurred. Defendant first told La Brosse that he was going to Ruidoso Downs, and that he had pulled into the restaurant parking lot to get out of her way. When asked whether he had been drinking, Defendant initially said he had not, but later stated he had had three beers at 4:30 p.m. but that he was "fine to drive." La Brosse told Defendant she had reason to believe he was under the influence and was driving while impaired, and that she would be calling another officer to conduct field sobriety tests. According to La Brosse's testimony, Defendant "got very upset at that time and said that he didn't need this to happen. That he was fine to drive, that he was just going to friends," and that "he wouldn't drive[,] he would park the car."
Upon his arrival, Sergeant Spear told Defendant that field sobriety tests would be conducted. Defendant refused and stated, "just arrest me." Spear explained to Defendant that if he were to pass the field sobriety tests, he would be free to leave. Defendant again refused, stating that the police "already ha it made up in [their] mind ." Defendant again stated, "just arrest me." Defendant was placed under arrest, taken to the police station, booked, and asked to submit to a breathalyzer test. He refused. Spear told La Brosse that a search warrant had been obtained and that La Brosse was to transport Defendant to Lincoln County Medical Center for a blood draw. The toxicology report from this blood draw revealed a .08 percent blood alcohol content. A toxicologist testified that Defendant's blood alcohol content at the time of the stop would have been somewhere between .10 and .14 percent.
On direct examination, as a part of Defendant's case, Defendant testified that the vehicle was his. However, Defendant also testified that he refused to submit to the field sobriety tests because he was not driving the vehicle. Rather, he testified, a man named Dale was driving. He further testified he did not know Dale's last name, Dale had been drinking, he and Dale were on their way to a restaurant, Dale had already gotten out of the car by the time La Brosse arrived, Defendant had the keys because he had pulled them from the ignition, and he had not seen Dale since that evening. Significantly, during this direct examination, Defendant testified, "I just told [La Brosse] that I wasn't driving and that's why I wouldn't submit to a field sobriety test." The police officers' testim
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