March 22, 2011 – State of New Mexico v. Bertha Gurule, No. 30,190

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _March 22, 2011

NO. 30,190

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

BERTHA GURULE,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Kenneth Martinez, District Judge

Gary K. King, Attomey General

Margaret E. McLean, Assistant Attomey General
Joel Jacobsen, Assistant Attomey General

Santa Fe, NM

for Appellee

Jeff Romero
Albuquerque, NM

for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Bertha Gurule appeals her conviction for driving under the influence
of intoxicating liquor (DWI), contrary to NMSA 1978, Section 66-8-102(A) (2005)
(amended 2010), under the impaired to the slightest degree standard. We consider
Defendant’s arguments that (1) DWI, contrary to Subsection (A), is not a strict
liability crime; (2) even if DWI contrary to Subsection (A) is a strict liability crime,
an involuntary intoxication defense is nonetheless available; and (3) there was
insufficient evidence that Defendant was under the influence of over-the-counter cold
medication. We hold that DWI, contrary to Subsection (A), is a strict liability crime
and, as a result, an involuntary intoxication defense is not available. We therefore do
not reach Defendant’s sufficiency of the evidence argument. Accordingly, we affirm
Defendant’s conviction.
BACKGROUND
{2} 	On the morning of March 7, 2007, Defendant began to feel ill with either a cold
or the flu while at work. Her symptoms appeared to worsen throughout the day and,
at 1:45 p.m., her manager sent her home. She informed her manager that she had a
doctor’s appointment the next day at 9:00 or 10:00 a.m. and would not be available
to work. The next day, March 8, at around 6:00 p.m., Defendant visited her mother

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and two sisters, Rosa and Connie, at her mother’s home. Defendant still exhibited
signs of illness and laid down on her mother’s couch. 	At some point, Rosa told
Defendant to go outside and get some fresh air.
{3} 	While Defendant was outside, Rosa made “tea” for Defendant to clear up her
chest congestion and sinuses. The “tea” was a “hot toddy,” which Rosa made from
water, lime juice, lime, honey, oregano, and more than one shot of bourbon.
Defendant consumed the tea and testified that she was unaware that it contained
alcohol and could not taste the alcohol. Defendant also testified that she took cold
medication shortly after drinking the tea.
{4} 	After Defendant consumed the tea, Connie received a phone call from her
daughter informing her that Connie’s granddaughter was in the hospital. Defendant
drove Connie to the hospital between 7:30 and 8:00 p.m. 	While Defendant was
returning home from the hospital, Officer Steve Hindi observed that Defendant was
speeding and that she failed to maintain her lane. As a result, Officer Hindi initiated
a traffic stop of Defendant. Defendant told Officer Hindi that she did not consume
alcohol. Officer Bret White took over the investigation and observed that Defendant
had bloodshot, watery eyes and a strong odor of alcohol. 	Defendant told Officer
White that the alcohol odor was from a spray that she was using to treat her sore
throat. After administering field sobriety tests, which Defendant failed, Officer White
arrested Defendant for driving under the influence of intoxicating liquor.

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{5} 	After a bench trial, the metropolitan court found Defendant guilty of DWI,
contrary to Subsection (A), under the impaired to the slightest degree standard. In
finding Defendant guilty, the metropolitan court held that DWI under Subsection (A)
is a strict liability crime. The metropolitan court also rejected Defendant’s tendered
jury instruction on involuntary intoxication, UJI 14-5106 NMRA, finding that since
DWI is a strict liability crime, involuntary intoxication is inapplicable as a defense.
Defendant appealed to the district court, arguing that the metropolitan court erred in
(1) holding that involuntary intoxication is not a valid defense to DWI, and (2) finding
that Defendant was under the influence of over-the-counter cold medication. 	The
district court affirmed Defendant’s convictions. Defendant filed a timely appeal to
this Court.
STRICT LIABILITY
{6} 	Defendant argues that the crime of DWI under Subsection (A) requires the
general criminal intent to assume the risk of possible intoxication and that therefore
the metropolitan court erred in finding that it is a strict liability crime. 	Whether
conviction under Subsection (A) requires a showing of intent is a question of statutory
construction and is, therefore, a legal determination that we review de novo. See State
v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (holding that statutory
construction is a strictly legal determination that is reviewed de novo). “The standard
for determining whether a statute is a strict liability statute involves ascertaining

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whether there is a clear legislative intent that the act does not require any degree of
mens rea.” State v. Harrison, 115 N.M. 73, 77, 846 P.2d 1082, 1086 (Ct. App. 1992).
{7} 	Subsection (A) provides that “[i]t is unlawful for a person who is under the
influence of intoxicating liquor to drive a vehicle within this state.” 	In order to
convict under Subsection (A), a court must find that the defendant “was less able to
the slightest degree, either mentally or physically, or both, to exercise the clear
judgment and steady hand necessary to handle a vehicle with safety to the driver and
the public” as a result of drinking the liquor. State v. Pickett, 2009-NMCA-077, ¶ 1,
146 N.M. 655, 213 P.3d 805 (alteration omitted) (internal quotation marks and citation
omitted), cert. denied, 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43. 	This
standard is known as the “impaired to the slightest degree” standard. Id. ¶ 6 (internal
quotation marks and citation omitted). The metropolitan court found Defendant guilty
of violating the impaired to the slightest degree standard under Subsection (A) as
opposed to the per se standard of Subsection (C). 	Under the per se standard of
Subsection (C), it is unlawful to drive with a blood alcohol content (BAC) of .08 or
more, regardless of whether impaired driving was shown. Pickett, 2009-NMCA-077,
¶ 6.
{8} 	Defendant primarily argues that this Court, in State v. Dutchover, 85 N.M. 72,
509 P.2d 264 (Ct. App. 1973), held that DWI, under the impaired to the slightest
degree standard, requires the defendant to assume the risk of intoxication in order to

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convict and, therefore, the metropolitan court erred in finding that DWI is a strict
liability crime in this case. In Dutchover, the defendant was convicted of vehicular
homicide and admitted that he was intoxicated. 	Id. at 73-74, 509 P.2d at 265-266.
The defendant’s argument was that the state failed to prove the requisite criminal
intent for vehicular homicide, not DWI. Id. at 75, 509 P.2d at 267. This Court held
that (1) the voluntary act of becoming under the influence, combined with (2) the
voluntary act of driving, was malum in se and, therefore, was sufficient to satisfy the
criminal intent element necessary for conviction for vehicular homicide. 	See id.
Dutchover did not require this Court to determine whether criminal intent was
necessary for conviction of DWI under the impaired to the slightest degree standard.
{9} 	While this Court has not addressed whether DWI under the impaired to the
slightest degree standard of Subsection (A) is a strict liability crime, we have
previously held that a violation of the per se standard of Subsection (C) is a strict
liability crime. 	See Harrison, 115 N.M. at 78, 846 P.2d at 1087. In Harrison, the
defendant was found unconscious behind the wheel of his vehicle. Id. at 75, 846 P.2d
at 1084. He submitted to breath alcohol tests, which produced BAC readings of .17
and .15. 	Id. 	The district court subsequently convicted the defendant of a per se
violation of Subsection (C) based on the BAC readings. 	Id. 	In his appeal, the
defendant argued that because he was found unconscious, the state failed to prove that
he intended to drive his car and, therefore, there was insufficient evidence to sustain

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his conviction. 	Id. at 76-77, 846 P.2d at 1085-86. 	Rejecting the defendant’s
argument, this Court held that “the criminal offense of DWI, [under Section 66-8-
102(A), (C)], is a strict liability crime.” Harrison, 115 N.M. at 74, 846 P.2d at 1083.
This Court reasoned that the plain meaning of Section 66-8-102, which does not
contain language requiring a mens rea, and the overriding compelling public interest
in deterring individuals from driving while intoxicated, demonstrated legislative intent
that DWI is a strict liability crime. Harrison, 115 N.M. at 77, 846 P.2d at 1086.
{10} 	Defendant attempts to distinguish Harrison on two grounds: (1) Harrison did
not specifically address a violation of the impaired to the slightest degree standard of
Subsection (A); and (2) Defendant’s argument as to intent in this case is that she did
not voluntarily become intoxicated, whereas, in Harrison, the defendant argued that
he lacked the intent to drive. 	We disagree and conclude that the rationale and the
holding set forth in Harrison that DWI is a strict liability crime also applies to charges
brought under Subsection (A) and the impaired to the slightest degree standard.
{11} 	First, this Court in Harrison examined the language of Section 66-8-102 in its
entirety, including Subsection (A), in reaching the conclusion that the plain meaning
of Subsection (C) dictates that DWI is a strict liability crime. Harrison, 115 N.M. at
77, 846 P.2d at 1086. We noted that the language of the entirety of Section 66-8-102,
not just Subsection (C), “makes absolutely no reference whatsoever to a required
intent on the part of an accused.” 	Harrison, 115 N.M. at 77, 846 P.2d at 1086.

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Indeed, Subsection (A) provides only that “[i]t is unlawful for a person who is under
the influence of intoxicating liquor to drive a vehicle within this state.” Therefore,
regardless of whether a defendant is ultimately convicted of a per se violation or under
the impaired to the slightest degree standard, the plain meaning of Section 66-2-108
“clearly provides that the only thing necessary to convict a person of DWI is proof
that the defendant was driving a vehicle either under the influence of intoxicating
liquor or while he had a certain percentage of alcohol in his blood.” Harrison, 115
N.M. at 77, 846 P.2d at 1086; see State v. Willie, 2009-NMSC-037, ¶ 9, 146 N.M.
481, 212 P.3d 369 (“The principal command of statutory construction is that the court
should determine and effectuate the intent of the [L]egislature, using the plain
language of the statute as the primary indicator of legislative intent.” (alteration
omitted) (internal quotation marks and citation omitted)).
{12} 	Additionally, as a rule of statutory construction, we read all provisions of a
statute and all statutes in pari materia together in order to ascertain the legislative
intent. 	Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992). 	We
therefore consider whether intent is required for conviction under the impaired to the
slightest degree provision of Subsection (A) using the per se standard of Subsection
(C) as a guide. See Valdez v. Vigil, 2007-NMCA-031, ¶ 11, 141 N.M. 316, 154 P.3d
691 (holding that the interpretation of a subsection of a statute should not be read in
isolation but, instead, legislative intent is “informed by consideration of” the entire

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statute). 	Subsections (A) and (C) respectively provide that “[i]t is unlawful for” a
defendant to drive a vehicle while under the influence of intoxicating liquor or while
having a blood alcohol concentration of above .08 percent. 	Neither subsection
contains an intent element. Considering that both subsections begin with identical
language and lack an intent element, it would be inconsistent to require the State to
prove intent with regard to convictions under Subsection (A) in light of our prior
determination that Subsection (C) is a strict liability crime.
{13} 	Lastly, the Harrison Court rationalized that there is compelling public interest
in deterring individuals from driving while intoxicated to a degree that it overrides the
individual interest that intent be required for conviction. 115 N.M. at 77, 846 P.2d at
1086. 	Specifically, we noted that “innocent individuals are oftentimes injured or
killed, and their families and loved ones made to suffer [and, therefore, the potential
harm of DWI is] much greater than if only the irresponsible person who drove while
intoxicated was put in danger.” 	Id. 	As a result, we stated that “the [L]egislature
recognized this significant public interest and potential harm when it drafted Section
66-8-102” and, therefore, it strengthened our conclusion that DWI under Subsection
(C) is a strict liability crime. 	Harrison, 115 N.M. at 77, 846 P.2d at 1086. 	The
interest in deterring individuals from driving while intoxicated is furthered by DWI
being a strict liability crime, regardless of whether the per se or impaired to the
slightest degree standard is used to determine the guilt or innocence of the accused.

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Accordingly, when we read Section 66-8-102 in view of legislative intent, DWI under
Subsection (A) and the impaired to the slightest degree standard is a strict liability
crime. 	We next turn to whether involuntary intoxication is nonetheless a valid
defense.
INVOLUNTARY INTOXICATION DEFENSE
{14} 	Defendant argues that the district court erred in not considering involuntary
intoxication as a defense to DWI, even assuming that DWI under Subsection (A) is
a strict liability crime. We initially note that the parties point out that there is a split
of authority among the states as to whether involuntary intoxication is a valid defense
to strict liability DWI. Compare, e.g., New Jersey v. Hammond, 571 A.2d 942, 948
(N.J. 1990) (holding that involuntary intoxication is not a defense to the state DWI
statute), with Carter v. Florida, 710 So. 2d 110, 113 (Fla. Dist. Ct. App. 1998)
(holding that an involuntary intoxication jury instruction should have been given to
the jury, even though the state DWI statute was construed as a strict liability crime).
{15} 	Defendant points out that this Court, in State v. Rios, 1999-NMCA-069, ¶ 1,
127 N.M. 334, 980 P.2d 1068, held that duress is a defense to strict liability DWI and
argues that it would be inconsistent to not allow involuntary intoxication as a defense.
Indeed, this Court held that common law duress is applicable to DWI. However, there
are significant differences between the defenses of duress and involuntary intoxication
that support a different application in the strict liability context.

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{16} 	In New Mexico, duress consists of three elements: (1) the defendant committed
the crime under threat, (2) the defendant feared immediate bodily harm to himself or
others if he failed to commit the crime, and (3) a reasonable person in the defendant’s
position would have acted in the same way under the circumstances. 	Id. ¶ 7. 	“A
defendant pleading duress is not attempting to disprove a requisite mental state” and
is, instead, attempting excusal “from criminal liability because of the circumstances
surrounding their intentional act.” Id. ¶ 12. “[D]uress does not negate the mental state
or volitional act, but instead justifies the intended criminal act[.]” Id.
{17} 	In contrast, involuntary intoxication is a defense only when it negates the intent
element of a crime. See State v. Lovato, 110 N.M. 146, 147, 793 P.2d 276, 277 (Ct.
App. 1990) (“A showing of intoxication is a defense to a specific intent crime where
the intoxication is to such a degree as would negate the possibility of the necessary
intent.”); cf. State v. Campos, 1996-NMSC-043, ¶ 62, 122 N.M. 148, 921 P.2d 1266
(Franchini, J., dissenting) (“The only rationale for allowing involuntary intoxication
as a defense at all is because intoxication in fact may negate the malice for murder.”).
UJI 14-5106, the jury instruction tendered to the metropolitan court by Defendant,
provides the requirements for raising the defense of involuntary intoxication. UJI 14-
5106 applies when “[e]vidence has been presented that the defendant was intoxicated
but that the intoxication was involuntary.” UJI 14-5106 (Use Note 1) provides:
If this instruction is given, add to the essential elements instruction

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for the offense charged:
The defendant was not involuntarily intoxicated at the time the
offense was committed or, if defendant was involuntarily intoxicated, the
defendant nonetheless:
knew what [he] [she] was doing or understood the consequences of [his]
[her] act, knew that [his] [her] act was wrong and could have prevented
[himself] [herself] from committing the act.
As Use Note 1 confirms, involuntary intoxication is only a defense in New Mexico
when the defendant’s intent to commit the criminal act is negated by the intoxication
to the extent that the defendant did not understand the consequences of the action or
did not know the act was wrong and could not have prevented the act.
{18} 	Examining the differences between the justifications for duress and involuntary
intoxication, it follows that duress can be a defense to a strict liability crime while
involuntary intoxication cannot. Strict liability crimes, by definition, do not require
criminal intent. 	See State v. Torres, 2003-NMCA-101, ¶ 7, 134 N.M. 194, 75 P.3d
410; see also Black’s Law Dictionary 429 (9th ed. 2009) (defining a strict liability
crime as a “crime that does not require a mens rea element”). Involuntary intoxication
is only a defense “to the extent that it impairs the ability to form intent.” Morales v.
Mitchell, 507 F.3d 916, 938 (6th Cir. 2007). As such, it would be illogical to allow
an involuntary intoxication defense to a strict liability crime because the mental state
of the defendant is irrelevant for conviction. Therefore, involuntary intoxication is not
a defense to a strict liability crime because it is irrelevant in the strict liability context
as to whether the defendant had intent to commit the prescribed act. 	See State v.

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Lucero, 98 N.M. 204, 206, 647 P.2d 406, 408 (1982) (“[T]he sole question for the jury
in a strict liability offense is whether [it] believes the defendant committed the act
prescribed by the statute. If it finds that the defendant did commit the act, then the
jury is obliged to bring a guilty verdict.”).
{19} 	Duress, on the other hand, is available as a defense when the defendant
committed the prescribed act, with the requisite intent, in order to “avoid[] a harm of
greater magnitude.” 	Rios, 1999-NMCA-069, ¶ 12 (internal quotation marks and
citation omitted). 	The defendant, making a duress defense, does not argue lack of
intent because of duress and, instead, essentially concedes the commission of the
prescribed act with the requisite intent, but argues that the act was justified.
Therefore, because duress is not based on the principle that a defendant’s intent is
negated, it does not contain the same logical fallacy as an involuntary intoxication
defense in the strict liability context. The metropolitan court, therefore, did not err by
holding that involuntary intoxication is not available as a defense to the strict liability
crime of DWI under Subsection (A).
CONCLUSION
{20} 	We hold that DWI, contrary to Section 66-8-102(A), is a strict liability crime
and, as a result, an involuntary intoxication defense is not available. We therefore
affirm.
{21} 	IT IS SO ORDERED.

JAMES J. WECHSLER, Judge
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WE CONCUR:

CELIA FOY CASTILLO, Chief Judge

LINDA M. VANZI, Judge

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