March 08, 2010 – City of Rio Rancho v. Patrick Mazzei, No. 28,609

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: March 8, 2010

NO. 28,609

CITY OF RIO RANCHO,
Plaintiff-A ppellee,

V.

PATRICK MAZ7ZFI,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
Violet C. Otero, District Judge

James C. Babin, City Attomey

Gina R. Manfredi, Assistant City Attomey
Kenneth J. Tager, Assistant City Attomey
Rio Rancho, NM

for Appellee

Fuentes & Associates, P.C.
Robert R. Fuentes

Rio Rancho, NM

for Appellant

OPINION
VANZI, Judge.
{1} 	Defendant appeals his conviction for his third offense of driving while under
the influence of intoxicating liquor (DWI), pursuant to a violation of City of Rio
Rancho, N.M., Municipal Code, Rev. Ordinances ch. VI, art. VI § 12.1 (2007) (the
Ordinance). On appeal, Defendant challenges the constitutionality of the City of Rio
Rancho’s ability to charge him with a petty misdemeanor pursuant to the Ordinance.
Defendant asserts that the Ordinance is inconsistent with state law because it limits
his right to a jury trial, whereas the state statute for the identical offense carries a
misdemeanor penalty under which he would have been entitled to a jury trial; that the
Ordinance is void because it is preempted by state law; and that the district court erred
in rejecting Defendant’s argument that he should have been Mirandized prior to giving
consent to be tested for DWI. We affirm Defendant’s conviction.
BACKGROUND
{2} 	On January 18, 2007, Rio Rancho police stopped Defendant on suspicion of
DWI in violation of the Ordinance. Defendant was tried and convicted in a bench trial
in Rio Rancho Municipal Court of DWI, third offense, aggravated, and for traffic lane
violation. Defendant was sentenced to one hundred seventy-nine days, the maximum
penalty available under the Ordinance. 	Defendant appealed his conviction to the

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district court for a trial de novo.
{3} 	On appeal, the district court held a bench trial after which it also found
Defendant guilty of DWI in violation of the Ordinance and sentenced Defendant for
DWI, third offense, aggravated, and for failure to maintain traffic lane. 	The court
sentenced Defendant to one hundred seventy-nine days in jail, with eighty-nine days
suspended, and ordered probation, fines, and counseling. Defendant’s conviction has
been stayed pending the outcome of this appeal.
{4} 	Defendant argues on appeal that the Ordinance is void because it is inconsistent
with state law in that: (1) by providing a lesser penalty for DWI than state law, the
Ordinance denied Defendant his right to a jury trial in both the municipal court and
on appeal in district court; and (2) the Legislature has preempted the field of DWI
legislation, thereby prohibiting municipal regulation of DWI. Defendant also argues
that the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended
through 2007), violates his right against self-incrimination and that he should have
been given a Miranda warning prior to being tested for DWI. We address each of
Defendant’s arguments in turn.
DISCUSSION
I. 	Rio Rancho DWI Ordinance Is Not Void
A. 	Standard of Review
{5} 	The Defendant’s first argument requires us to interpret the statutory scheme

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governing DWI and municipal ordinances. “Interpretation of municipal ordinances
and statutes is a question of law that we review de novo.” Stennis v. City of Santa Fe,
2008-NMSC-008, ¶ 13, 143 N.M. 320, 176 P.3d 309. 	“Our primary goal when
interpreting statutory language is to give effect to the intent of the [L]egislature.”
State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. 	“When the
language in a statute is clear and unambiguous, we give effect to that language and
refrain from further statutory interpretation.” State v. Duhon, 2005-NMCA-120, ¶ 10,
138 N.M. 466, 122 P.3d 50.
B. 	The Ordinance Did Not Unconstitutionally Limit Defendant’s Right to a
Jury
{6} 	Because the core of Defendant’s argument concerns the constitutional right to
a trial by jury, we briefly address which crimes are subject to the Sixth Amendment
jury trial provision of the United States Constitution. Our courts have long held that
a defendant may demand a trial by jury in those cases where the crime is classified as
serious and has a potential penalty in excess of six months’ imprisonment. See State
v. Sanchez, 109 N.M. 428, 430, 786 P.2d 42, 44 (1990); see also N.M. Const. art II,
§ 12. New Mexico law does not provide for a jury trial for petty misdemeanors, i.e.,
crimes having a potential penalty of six months or less imprisonment. 	Hamilton v.
Walker, 65 N.M. 470, 471-72, 340 P.2d 407, 408 (1959).
{7} 	In this case, Defendant was charged with DWI, third offense, aggravated. State

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law regarding DWI is embodied in NMSA 1978, Sections 66-8-102 to -112 (1953, as
amended though 2008). The maximum penalty provided under the state statutes for
DWI, third offense, is “imprisonment for not more than three hundred sixty-four
days.” Section 66-8-102(F). Because the possible penalty under the state statute is
more than six months’ imprisonment, Defendant would have been entitled to a jury
trial had he been charged under that statute. On the other hand, the maximum penalty
for DWI, third offense, provided by the Ordinance under which Defendant was
actually charged, is one hundred seventy-nine days’ imprisonment. 	Because this
penalty is less than six months’ imprisonment, Defendant was tried in municipal court
without a jury.
{8} 	The parties agree that the City of Rio Rancho is a home rule municipality and,
as such, it possesses authority under Article X, Section 6D of the New Mexico
Constitution to enact local ordinances in areas not expressly denied by general law.
Additionally, NMSA 1978, § 3-17-1(B) (1993) provides that a municipality may
adopt ordinances for the health and safety of its inhabitants, so long as the ordinances
are not inconsistent with the laws of New Mexico.
{9} 	Defendant argues that the City of Rio Rancho exceeded its authority by
enacting the Ordinance because it unconstitutionally limited his right to a jury trial.
He contends that by providing a lesser penalty than provided under the state DWI
statutes, the Ordinance is void because it is inconsistent with state law. We disagree.

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{10} 	The parties do not dispute that the elements of the crime of DWI defined in the
Ordinance and under state law are substantially the same. The parties also agree that
the only substantive difference between the Ordinance and the state DWI statute are
in the penalty provisions of the respective laws. 	Defendant cites no authority to
support his contention that an ordinance is inconsistent with state law merely because
it provides for a lesser penalty than the maximum penalty permitted by statute.
Moreover, we note several New Mexico Supreme Court cases holding contrary to
Defendant’s claim.
{11} 	Our Supreme Court first defined the test to determine whether an ordinance is
inconsistent with state law in a 1954 case that challenged a municipal ordinance
regulating DWI. State ex rel. Coffin v. McCall, 58 N.M. 534, 537-38, 273 P.2d 642,
644 (1954). 	In McCall, the Court stated that the test for determining whether a
conflict exists is “whether the ordinance permits an act the general law prohibits, or
vice versa.” Id. at 537, 273 P.2d at 644. Applying this test, the Court found that the
municipal DWI ordinance in question did not invade statutory authority, but rather,
the 	ordinance 	“merely 	complements 	the 	statute 	and 	is 	nowhere 	antagonistic
therewith.” Id. at 538, 273 P.2d at 644. In so ruling, the Court specifically noted the
fact that, even though the penalties provided by the ordinance were different from
those provided by the statute, a difference in the penalty provisions was insufficient
to create a conflict. Id. at 537-38, 273 P.2d at 644. Our Supreme Court reiterated this

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test in two recent decisions. Stennis, 2008-NMSC-008, ¶ 21 (“A municipal ordinance
does not conflict with state law unless the ordinance permits an act the general law
prohibits, or vice versa.” (internal quotation marks and citation omitted)); see City of
Las Cruces v. Rogers, 2009-NMSC-042, ¶ 6, 146 N.M. 790, 215 P.3d 728 (“A
municipal ordinance is inconsistent with the laws of New Mexico if the ordinance
permits an act the general law prohibits, or vice versa.” (internal quotation marks and
citation omitted)).
{12} 	In the present case, the parties do not dispute the fact that the Ordinance
prohibits exactly the same acts as those prohibited by the state DWI statutes, i.e.,
driving while under the influence of intoxicating liquor or drugs. 	The only
substantive difference between the Ordinance and state law is the penalty imposed.
Applying our Supreme Court’s conflict test, we conclude that the Ordinance is not
inconsistent with the laws of New Mexico because it does not permit an act prohibited
by the general law or vice versa.
{13} 	Further, under the New Mexico Constitution, home rule municipalities are
given greater authority to enact ordinances than non-home rule municipalities. Our
Constitution states that a home rule municipality “may exercise all legislative powers
and perform all functions not expressly denied by general law or charter.” 	N.M.
Const. art. X, § 6D. As the New Mexico Supreme Court noted in Apodaca v. Wilson,
86 N.M. 516, 521, 525 P.2d 876, 881 (1974), “a home rule municipality no longer has

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to look to the [L]egislature for a grant of power to act, but only looks to legislative
enactments to see if any express limitations have been placed on their power to act.”
The purpose of the amendment “is to provide for maximum local self-government”
and, 	therefore, 	a 	liberal 	construction 	should 	be 	given 	“to 	the 	powers 	of
municipalities.” N.M. Const. art. X, § 6E. In Apodaca, our Supreme Court construed
the phrase “not expressly denied” in Subsection D to mean that a clear “statement of
the authority or power denied must be contained in such general law . . . or otherwise
no limitation exists.” 	Apodaca, 86 N.M. at 521-22, 525 P.2d at 881-82 (internal
quotation marks omitted); State ex rel. Haynes v. Bonem, 114 N.M. 627, 634, 845
P.2d, 150, 157 (1992).
{14} 	New Mexico general law regarding DWI contains only one such express denial
of municipal authority. Section 66-8-102.2 states that no municipal or county DWI
ordinance shall provide for “an unlawful alcohol concentration level that is different
than the alcohol concentration levels provided in Subsections C and D of Section 66-
8-102.” The DWI statutes do not contain any express denial of power regarding a
municipality’s authority to impose a different penalty than that provided by statute;
therefore, we conclude that a home rule municipality is free to impose any penalty for
DWI that complies with the restrictions defined in Article X, Section 6D of the New
Mexico Constitution and Section 3-17-1(C)(2) of the State Municipal Code. In the
present case, the penalty imposed by the Ordinance, one hundred seventy-nine days,

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complies with those constitutional and statutory restrictions. For these reasons, we
conclude that the Ordinance is not inconsistent with the laws of New Mexico, and
therefore, Defendant was properly tried in municipal court without a jury.
{15} 	Additionally, because we conclude that the Ordinance was a valid exercise of
municipal authority and, therefore, the initial charges were properly brought in
municipal court, we need not reach the specifics of Defendant’s argument that he was
entitled to a jury trial in district court. Appeals to district court from municipal court
decisions are controlled by NMSA 1978, Section 35-15-10 (1959), which states that
all appeals from municipal court to district court for violations of municipal
ordinances “shall be de novo and shall be tried before the court without a jury.” Based
on the clear language of this statute, we hold that Defendant was not entitled to a jury
trial in district court.
C. 	The Ordinance Is Not Preempted by State Law
{16} 	Defendant next argues that the Ordinance is inconsistent with state law and is
therefore void because, with regard to DWI legislation, the Legislature “has enacted
a series of laws of statewide concern such that the state law is intended to control and
create a uniform system of enforcement” that is intended to preempt municipal
authority in the field of DWI. We are not persuaded by Defendant’s argument.
{17} 	Both the state law regarding DWI and Section 3-17-1(C)(2) of the State
Municipal Code demonstrate by their plain language that the Legislature did not

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intend to preempt the field of DWI legislation and preclude municipalities from
enacting DWI ordinances. 	New Mexico’s DWI statutes clearly contemplate the
existence of municipal DWI ordinances in that the statutes discuss the proper
interaction between such ordinances and the statutes. 	For example, Section 66-8-
102(Q) states that “[a] conviction pursuant to a municipal or county ordinance in New
Mexico . . . shall be deemed to be a conviction pursuant to this section for purposes
of determining whether a conviction is a second or subsequent conviction.” Similarly,
Section 66-8-102.2 states that a municipal DWI ordinance may not provide for a blood
alcohol concentration level that is different from the concentration levels provided for
in the state statute.
{18} 	Section 3-17-1(C)(2) specifically addresses a municipality’s authority to enact
DWI ordinances by granting a municipality the authority to punish the “violation of
an ordinance prohibiting driving a motor vehicle while under the influence of
intoxicating liquor or drugs” by imposing “a fine of not more than one thousand
dollars ($1,000) or imprisonment for not more than three hundred sixty-four days or
both.”
{19} 	Based on the plain wording of these statutes, we conclude that, rather than
intending to preempt the field of DWI legislation, it was the intent of the Legislature
to specifically permit municipalities to enact DWI ordinances.
II. 	Miranda Warning Not Required Prior to Implied Consent Advisement

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{20} 	Defendant’s final argument is that the Implied Consent Act violates his Fifth
Amendment right against self-incrimination and that under Miranda v. Arizona, 384
U.S. 436 (1966), he should have been given a Miranda warning prior to being given
the implied consent advisement and administration of the breath alcohol test (BAT).
{21} 	Defendant’s Fifth Amendment argument raises a mixed question of law and
fact. See State v. Javier M., 2001-NMSC-030, ¶ 17, 131 N.M. 1, 33 P.3d 1. “[W]e
review mixed questions of law and fact de novo, particularly when they involve
constitutional rights.” State v. Hernandez, 1997-NMCA-006, ¶ 18, 122 N.M. 809, 932
P.2d 499 (filed 1996).
{22} 	Defendant was placed under arrest and transported to Rio Rancho police
headquarters after failing to properly perform field sobriety tests. 	The arresting
officer advised Defendant of the requirements of the Implied Consent Act and asked
Defendant if he agreed to take a BAT. Defendant agreed to the test, and the officer
properly administered a BAT to Defendant.
{23} 	Although somewhat unclear, Defendant appears to argue that the officer’s
question and requirement for a verbal response, along with the statutory requirement
that a failure to consent to the test would subject Defendant to loss of his driving
license and increased charges, violated Defendant’s right against self-incrimination.
We disagree for the following reasons.
{24} 	The provisions of New Mexico’s Implied Consent Act essentially declare that

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any person who operates a motor vehicle in New Mexico and is arrested under
suspicion of DWI is deemed, by law, to have consented to chemical tests of his or her
breath or blood, or both, to determine the drug or alcohol content. In re Suazo, 117
N.M. 785, 787, 877 P.2d 1088, 1090 (1994). 	Section 66-8-107(B) authorizes an
officer who has reasonable grounds to believe a person may be driving while under
the influence of intoxicating liquor to request that the person agree to take a chemical
test to determine blood alcohol content.
{25} 	“Miranda warnings are designed to protect an accused’s [F]ifth [A]mendment
right against self-incrimination.” State v. Tindle, 104 N.M. 195, 197, 718 P.2d 705,
707 (Ct. App. 1986). 	New Mexico courts have, however, consistently held that
physical evidence, such as breath, blood, fingerprints, etc., is excluded from the scope
of the protection. State v. Myers, 88 N.M. 16, 21, 536 P.2d 280, 285 (Ct. App. 1975).
Because of this exclusion, New Mexico common law requires explicit Miranda-type
warnings only in situations where an accused is asked to provide testimonial or
communicative evidence and does not require such warnings for physical evidence.
Id.
{26} 	The reasoning of New Mexico courts in this area is well supported by a number
of United States Supreme Court decisions, which hold that the privilege against self-
incrimination only protects the accused from being compelled to provide the state with
evidence of a testimonial or communicative nature and does not protect a suspect from

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being compelled by the state to produce “real or physical evidence.” Pennsylvania v.
Muniz, 496 U.S. 582, 588-89 (1990) (internal quotation marks and citation omitted).
Specifically relevant to the present case, the Court held in Schmerber v. California,
384 U.S. 757, 765 (1966), abrogated in part on other grounds as recognized by In re
Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87, 91 (2d Cir.
1993), that a person suspected of driving while intoxicated could be forced to provide
a blood sample in the absence of a Miranda warning, because “[n]ot even a shadow
of testimonial compulsion upon or enforced communication by the accused was
involved either in the extraction or in the chemical analysis.”
{27} 	We note that the officer’s question asking Defendant if he agreed to take the test
required only a simple yes or no answer and, therefore, was not testimonial in nature.
Based on the forgoing analysis, we conclude that Defendant was not entitled to
Miranda warnings prior to being advised and tested pursuant to the Implied Consent
Act.
CONCLUSION
{28} 	For the reasons set forth above, we affirm the district court’s decision.
{29} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Judge
WE CONCUR:

CYNTHIA A. FRY, Chief Judge

JAMES J. WECHSLER, Judge

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