State v. Kanikaynar , 123 N.M. 283 ( 1997 )

OPINION

ALARID, Judge.

1. Defendant pled guilty to aggravated driving while intoxicated (DWI) contrary to NMSA 1978, Section 66-8-102 (Repl. Pamp.1994). The basis for the aggravation was Defendant’s refusal to submit to a chemical test that would determine the alcohol concentration of his breath. See § 66-8-102(D)(3). Pursuant to Section 66-8-102(F)(2), his sentence included an additional sixty days minimum mandatory confinement. He appeals the imposition of the additional sixty days of confinement, contending the provision is unconstitutional because it infringes upon his Sixth Amendment right to counsel, violates his right to due process, is void for vagueness, and criminalizes the exercise of his right to be free from warrantless searches and seizures. Because we do not agree that the statutory scheme violated Defendant’s rights, is void for vagueness, or that the statute criminalizes the exercise of his Fourth Amendment rights, we affirm his convictions.

I. BACKGROUND

2. When Defendant entered his guilty plea to the charge of DWI, his counsel told the court that Defendant admitted that he had refused to submit to chemical testing, an element of aggravated DWI, but stated that Defendant did not concede that the increased mandatory minimum sentence for aggravated DWI was proper in this ease. The district court sentenced Defendant to 364 days in jail, suspending all but the mandatory minimum of thirty days required for a third DWI offense plus the mandatory sixty days required under Section 66-8-102(F)(2) for the aggravation of a third offense. The district court specifically stated that its intent was for Defendant to serve no more than the mandatory period of incarceration required by law, and ordered the execution of the sixty-day enhancement for the aggravation be stayed pending appeal.

II. DISCUSSION

A. Aggravated DWI Provisions Do Not Violate Due Process

3. Under Section 66-8-102(D)(3), a person found guilty of DWI, and who refuses to submit to a chemical test to determine the concentration of alcohol in his blood or breath, is guilty of aggravated DWI. Our Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (Repl.Pamp.1994), requires that a suspect be advised that refusal will result in a driver’s license revocation. Section 66-8-111(B). However, there is no requirement that the suspect be informed of the criminal consequences created by Section 66-8-102. Defendant contends that the aggravation of his DWI conviction for his refusal to submit to a chemical test when he was not advised of the criminal consequences of that refusal violates the due process provisions of both the United States and the New Mexico Constitutions. We do not agree.

4. An analogous issue to the argument advanced by Defendant here was argued in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). The Court held that there was no denial of due process where the defendant was warned that his refusal to submit to a breath alcohol test (BAT) could result in the imposition of administrative penalties, but was not warned that his refusal could be used in evidence in his prosecution. The Neville Court distinguished Doyle v. Ohio, 426 U.S. 610, 616-20, 96 S.Ct. 2240, 2243-46, 49 L.Ed.2d 91 (1976), which held that the warning prescribed by Miranda v. Arizona, 384 U.S. 436, 468, 86 S.Ct. 1602, 1624-25, 16 L.Ed.2d 694 (1966), carried with it the implicit promise that post-arrest silence could not be used to impeach his testimony at trial. The Court recognized that while the right to silence is implicit in the Miranda warnings, the “right to refuse the blood-alcohol test, by contrast, is simply a matter of grace bestowed by the South Dakota legislature.” Neville, 459 U.S. at 565, 103 S.Ct. at 923. The Court reasoned that warning the defendant of the administrative penalties served as notice that refusal would result in adverse consequences and thus it was not necessary to give further warnings. Id. at 566, 103 S.Ct. at 924.

5. Defendant seeks to distinguish Neville by arguing that the consequences of refusal in his case have much greater significance than the issues considered in Neville. We disagree. The right of an accused to refuse the breath alcohol test has no constitutional implications. Thus, the statutory penalty arising from a refusal to take the test does not offend notions of fairness and due process. The Neville case is controlling authority in this case. The statutory scheme in New Mexico warns drivers of the administrative penalties. This warning is sufficient to notify drivers that refusal carries separate penalties.

6. In á New Mexico case in which the defendant refused to take a second test after blowing once into a breathalyzer, the defendant argued that there was no evidence that a second BAT, if given, would have been helpful on the “relation-back” issue. State v. Scussel, 117 N.M. 241, 244, 871 P.2d 5, 8 (Ct.App.), cert. denied, 117 N.M. 215, 870 P.2d 753 (1994). This Court concluded:

Defendant argues that he should have been informed of all the consequences of his refusal to take a second test, and without such a warning, our holding is unfair. We disagree. We know of no requirement that a party must be informed of every possible consequence of an action before suffering the consequences of that action.

Id. at 245, 871 P.2d at 9.

7. New Mexico’s implied consent statute does not contain language requiring that a driver must be warned of all the consequences of his refusal to submit to testing.

B. Claim Of Denial Of Right To Counsel

8. A person who refuses to submit to chemical testing and then is judged to have been driving while intoxicated is subject to a mandatory jail sentence. See § 66-8-102(D)(3), (E), & (F). As a result of these potential sanctions, Defendant asserts there is a right to counsel under the New Mexico Constitution when a driver is asked to submit to chemical testing. We disagree. In this case there is no evidence that Defendant requested or was denied an attorney before he refused a breath test. Defendant therefore is arguing that the new DWI statute as written is unconstitutional because it violates the right to counsel on its face.

9. In State v. Sandoval, 101 N.M. 399, 683 P.2d 516 (Ct.App.1984), we considered the question of whether the right to counsel attaches immediately following the administration of a breath alcohol test so that a driver could be apprised of his right to an additional chemical test and advised whether or not he should take it. We stated that the issuance of a DWI citation does not amount to the “initiation of criminal proceedings” and “one-sided confrontation” in which presence of counsel is required under the Sixth Amendment to the United States Constitution. Id. at 402-03, 683 P.2d at 519-20.

10. Defendant contends that Sandoval is not controlling in the present case because Section 66-8-102, as subsequently amended, has created a type of “critical stage” that was missing in that case. Defendant has not explained how, where he is contending counsel is required at a point before it was sought in Sandoval, the new statute bears on the “adversary proceedings” prong of the test. In addition, we are not persuaded that Defendant was left without any opportunity to preserve an affirmative case for trial. See, e.g., In re Suazo, 117 N.M. 785, 793, 877 P.2d 1088, 1096 (1994) (motorist offered a fair chance to understand his rights and recant refusal to take chemical test); Section 66-8-109(B) (driver has opportunity to arrange for an additional chemical test); Section 66-8-102(D)(3) (aggravated DWI requires judgment, based on evidence of intoxication, that the defendant was driving while intoxicated).

11.The authorities cited by Defendant do not convince us that the New Mexico Constitution affords him a more extensive right to counsel than the United States Constitution. See Sandoval, 101 N.M. at 403, 683 P.2d at 520 (“[T]he New Mexico Constitution should be construed in light of the United States Constitution on the right to counsel issue.”).

12. In Nyflot v. Minnesota Commissioner of Public Safety, 474 U.S. 1027, 1029, 106 S.Ct. 586, 587-88, 88 L.Ed.2d 567 (1985) (mem.) (White J. & Stevens, J., dissenting), the United States Supreme Court dismissed Nyflot’s appeal from a decision of the Minnesota Supreme Court which held that there was no statutory or constitutional right to consult with counsel before deciding whether to submit to a chemical blood test. The appeal was dismissed for want of a substantial federal question. Id. at 1027, 106 S.Ct. at 586. Summary dismissals on these grounds leave the judgment undisturbed and preclude lower courts from coming to a different conclusion on the issue presented based on the application of principles established by prior decisions. Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240-41, 53 L.Ed.2d 199 (1977); see also McVeigh v. Smith, .872 F.2d 725, 728 (6th Cir.1989) (Nyflot is controlling on holding that the petitioner was not denied her Sixth Amendment right to counsel); Langelier v. Coleman, 861 F.2d 1508, 1511 (11th Cir.1988) (summary dismissal operates as adjudication of that case on the merits and has precedential effect on other cases).

13. Limits on the right to counsel, such as to custodial interrogation situations as required by Miranda and the actual commencement of judicial proceedings by indictment or complaint, find support in United States Supreme Court decisions going back twenty-five years. See Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972); see also United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297-98, 81 L.Ed.2d 146 (1984). Further expansion of the right to counsel prior to the commencement of adversary criminal proceedings seems contrary to the view of the Supreme Court. Gouveia, 467 U.S. at 188 n. 5, 104 S.Ct. at 2297 n. 5 Indications from the federal circuits are that expansion of the Sixth Amendment right to counsel is unlikely. See Langelier, 861 F.2d at 1510; McVeigh, 872 F.2d at 728.

14. Jurisdictions with aggravated DWI and implied consent laws like ours consistently hold the Sixth Amendment right to counsel does not attach until charges are formally filed. When faced with a similar issue, the Minnesota Supreme Court held:

Without question, the right to counsel guaranteed by the sixth amendment to the United States Constitution does not attach until formal charges are initiated. Thus, appellants had no federal right to counsel at the time they were asked to submit to testing; although each was under arrest and in police custody, none had yet been formally charged. McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848, 853 (Minn.1991) (citations omitted).

In a recent Idaho ease, the defendant claimed her Sixth and Fourteenth Amendment rights to counsel were violated when, after she had submitted to a chemical test, her request to call her attorney was denied. State v. Carr, 128 Idaho 181, 911 P.2d 774 (Ct.App.1995). In dicta, the Idaho Court of Appeals commented there clearly is no right to counsel prior to the administration of a chemical test. Id. 911 P.2d at 776.

15. The practical effect of the rule of law suggested by Defendant would be to severely compromise the State’s legitimate interest in preserving blood alcohol evidence. State v. Suazo, 117 N.M. 794, 797, 877 P.2d 1097, 1100 (Ct.App.1993). It is clear that the delays inherent in granting the relief urged by Defendant would eliminate blood alcohol tests as a viable element of evidence in DWI prosecutions. We have no indication that the legislature intended to enact, under the guise of strengthening our statutory scheme in the DWI area, a requirement that would nullify one of the most potent weapons in the State’s DWI arsenal. See generally Langelier, 861 F.2d at 1512 n. 6.

16.We have held previously that, when considering the issue of right to counsel under the New Mexico Constitution, we are to look to the United States Supreme Court’s rulings in the area. Sandoval, 101 N.M. at 403, 683 P.2d at 520. Defendant would have us follow what is called the “Minnesota model” in which the Minnesota legislature provides in its implied consent act a limited right to counsel. In his own petition, Defendant points out that it was the legislature which created a limited right to counsel, not the courts, and we believe any expansion of the right to counsel in the implied consent area must come through the legislature unless and until the United States Supreme Court abandons or modifies Nyflot.

C. The Statute Is Not Void For Vagueness

17. Defendant asserts that Section 66-8-102(D)(3) is void for vagueness under the due process clause because reasonable notice of what is prohibited is not given by the statute. However, Defendant does not direct our attention to any portion of the statute that fails to give notice of the prohibited conduct or specify any language which is otherwise vague. Rather, Defendant argues that Section 66-8-102(D)(3) is unconstitutionally vague because it is irreconcilable with Section 66-8-lll(A). However, Defendant does not cite any specific authority for his position that the inability to reconcile the two statutes results in a finding of unconstitutional vagueness for one of-the statutes. While we initially disagree that the statutes are irreconcilable, absent cited authority, we will not review the issue. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984).

18. We find that Defendant’s argument is unpersuasive and affirm the district court on this issue.

D. The Constitutional Right To Be Free Of Warrantless Searches

19. Despite Defendant’s assertion to the contrary, there is no constitutional right to refuse a chemical test, and his right to refuse a forced chemical test exists only if the forced test is unreasonable under the Fourth Amendment. See McKay v. Davis, 99 N.M. 29, 30, 653 P.2d 860, 861 (1982). In the chemical test area, the Supreme Court has developed a test which balances an individual’s Fourth Amendment interest and the promotion of a legitimate governmental interest. See Schmerber v. California, 384 U.S. 757, 771-72, 86 S.Ct. 1826, 1836-37, 16 L.Ed.2d 908 (1966); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 619, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989).

20. An Alaska case heard by the Ninth Circuit upheld the charging of a defendant with DWI and the separate misdemean- or of refusing to take a BAT over claimed Fourth and Fourteenth Amendment violations. In holding that an arrested driver has no constitutional right to refuse to submit to a breath test, the Court pointed out that such a right is not created merely because the driver has a choice not to cooperate. The Court quoted the following:

“[Defendant’s] argument confuses a legal concept, ‘consent’, with a factual concept, ‘cooperation’ or ‘assent.’ The two are substantially different. Consent in the constitutional sense is only required where the defendant has a legal right to refuse. As we have seen, a legally arrested defendant has no constitutional right to refuse a breathalyzer examination. True, he may fail to cooperate or give his assent to a breath test as a matter of fact, but failure to cooperate does not create a legal right where it would otherwise not exist.”

Burnett v. Municipality of Anchorage, 634 F.Supp. 1029, 1038 n. 7 (D.Alaska 1986) (quoting McCracken v. State, 685 P.2d 1275, 1280 (Alaska.Ct.App.1984) (Singleton, J., concurring)). Defendant’s refusal to submit to a chemical test was simply a decision not to cooperate unclothed by constitutional protection.

III. CONCLUSION

21. For the reasons stated above, the decision of the district court is affirmed.

22. IT IS SO ORDERED.

DONNELLY, J., concurs. APODACA, J., dissenting.