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State v. Jones2/20/1998
{1} Defendant appeals the district court's affirmance of his metropolitan court conviction of driving while intoxicated (DWI). On appeal, Defendant argues that the district court erred by: (1) finding that there was probable cause for his arrest; (2) failing to suppress the State's evidence of breath alcohol; (3) finding that Defendant was properly and accurately notified of his right to an independent sobriety test by someone of his own choosing; and (4) determining that NMSA 1978, § 66-8-109 (1993) does not allow an individual arrested for DWI the right to have a person of his own choosing draw his blood. In addition, Defendant argues that the failure of the police to follow Section 66-8-109(B) violated his right to due process.
{2} Although we hold that the district court erred in its interpretation of the statute, we nonetheless affirm Defendant's conviction because the warrantless arrest was valid and because he was not prejudiced by the violation of his statutory rights.
I. FACTUAL AND PROCEDURAL BACKGROUND
{3} On March 25, 1995, Defendant rear-ended another vehicle which had stopped to allow a third vehicle to make an illegal u-turn. Shortly after the accident, Albuquerque Police Department (APD) Officer Trujillo came upon the accident scene. The officer stopped and spoke with Defendant, who had a strong odor of alcohol on his breath, bloodshot and watery eyes, and slurred speech. Defendant swayed while talking with the officer , and told the officer that he had had two beers. Officer Trujillo had Defendant perform three field sobriety tests--the eye gaze nystagmus test, the one leg stand, and the heel to toe test. Defendant failed all three tests. Based on his observations of Defendant, and Defendant's failure of the field sobriety tests, Officer Trujillo arrested Defendant for aggravated DWI and "following too closely."
{4} Officer Trujillo transported Defendant to the Bernalillo County Detention Center (BCDC), observed the twenty-minute waiting period, and took Defendant into the breath-testing room. Officer Trujillo then read to Defendant an Implied Consent Act advisory, which was posted on the wall. The language of the advisory did not precisely mirror the language of the statute. See § 66-8-109(B). The officer administered two breath tests in immediate succession. The intoxilyzer measured Defendant's breath alcohol level at .17 on each of the two tests administered, showing that Defendant was intoxicated.
{5} Once the tests were completed, Defendant asked to speak to an attorney and asked for an independent blood test. Officer Trujillo requested a blood technician on contract with APD to perform the blood test at BCDC. Defendant also requested that he be allowed to call his own doctor because he wanted someone he knew to perform the blood test upon him. At no time did Officer Trujillo allow Defendant to use the telephone. Officer Trujillo made no calls on Defendant's behalf.
{6} When the APD blood technician arrived, Defendant refused to allow the blood technician to draw his blood. Officer Trujillo informed Defendant that it was APD policy to provide defendants with qualified doctors, nurses, or blood technicians to draw the blood and that defendants could take the blood sample to a person of their own choosing for the analysis.
{7} Defendant was convicted of DWI, first offense, in metropolitan court. The metropolitan court dismissed the "aggravated" portion of the DWI charge, in part because the State failed to afford Defendant an opportunity to have a person of his choosing draw his blood. The metropolitan court also dismissed the "following too closely" charge. Defendant appealed to the district cou
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