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Maso v. State of New Mexico Taxation and Revenue Dep't7/14/2004
Petitioner Raphael Maso appeals from an opinion of the Court of Appeals which held that an English-language notice of a license- revocation proceeding that had been personally served on a Spanish-only speaker when he was arrested for driving under the influence of alcohol satisfies due process. On appeal to this Court, Petitioner argues for the first time in the course of these proceedings that we should grant greater protection under the due process clause of Article II, Section 18 of the New Mexico Constitution than is recognized under the due process clause found in the Fourteenth Amendment to the United States Constitution. We hold that Petitioner failed to preserve his state constitutional argument for an appellate determination. Because we also hold that the Court of Appeals correctly analyzed the notice requirement under the federal constitution, we affirm.
I. Facts and Proceedings
On December 8, 2001, Albuquerque Police stopped Petitioner at a sobriety checkpoint and arrested him for driving under the influence of alcohol, contrary to NMSA 1978, § 66-8-102 (1999, prior to 2002 and 2003 amendments). Petitioner took a breath test which resulted in a .17 reading, more than twice the legal limit. He speaks and reads little to no English. Upon his arrest, as required by NMSA 1978, § 66-8-111.1 (1993, prior to 2003 amendments), the arresting officer served Petitioner with a notice of revocation which informs him, in English, that his driving privileges will be revoked in twenty days unless he requests a hearing in writing within ten days of service of the notice. Petitioner did not file his request for a hearing until well after the ten days had expired. His attorney sent a letter dated January 5, 2002, but postmarked January 7, 2002, requesting a hearing and explaining that his client "is a Spanish speaker and did not understand the Notice of Revocation or the fact that he had to submit his request within ten days." On January 9, 2002, the Motor Vehicle Division of the Taxation and Revenue Department issued a standard form letter rejecting Petitioner's request for a hearing on the grounds that the request was not made within ten days.
Petitioner appealed the decision to the district court, which concluded that the denial of the hearing did not violate due process. Petitioner then appealed to the Court of Appeals, which affirmed the district court's decision. The Court of Appeals held that "English- language notice regarding administrative revocation is compatible with due process when it is personally delivered to a driver during the course of his arrest for driving under the influence." Maso v. State of New Mexico Taxation and Revenue Dep't, 2004-NMCA-025, 21, 135 N.M. 152, 85 P.3d 276. The Court of Appeals also affirmed the district court's determination that the personal delivery of an English-language notice "satisfies due process, regardless of whether [Petitioner] understood English, because under the circumstances a reasonable driver who did not understand the contents of the notice would inquire further." Id. 20.
Petitioner filed a petition for writ of certiorari to this Court, raising only one issue: "whether, given the distinctive characteristics of New Mexico's population, the Court of Appeals properly found that English language notice regarding administrative revocation is compatible with due process when it is personally delivered to a Spanish-only speaking individual." Despite this general reference to "due process," Petitioner's only argument to this Court is that we should grant greater protections under the state constitution's due process clause, N.M. Const. art. II, § 18, than under its federal counterpart. Indeed, Petitioner agrees that the federal c
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