May 24, 2019- State of New Mexico v. Patrick Martinez, No. A-1-CA-37693

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 	V. 	NO. A-1-CA-37693
5 	PA TRICK MARTINEZ,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Benjamin Chavez, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur , Chief Public Defender
13 	John Bennett, Assistant Appellate Defender
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 	V ANZI, Judge.
18 	{1} 	Defendant appeals following his convictions for aggravated DWI and speeding.
19 	We previously issued a notice of proposed summary disposition in which we
20 proposed to affirm. Defendant has filed a memorandum in opposition. After due
21 	consideration, we remain unpersuaded. We therefore affirm.
Court of Appeals of New Mexico
Filed 5/24/2019 9:50 AM

1 {2} 	Defendant challenges the sufficiency of the evidence to support his conviction
2 for aggravated DWI, specifically and exclusively focusing on the willfulness of his
3 refusal to 	submit to breath-alcohol testing. 	[MIO 2-5] 	We limit the scope of
4 discussion accordingly. See generally State v. Dawson, 1999-NMCA-072, ,-r 13, 127
5 N.M. 472,983 P.2d 421 ("We limit ourselves to those elements that [the d]efendant
6 claims to have been insufficiently proved.").
7 	{3} 	In this case, it is undisputed that the officer requested that Defendant submit
8 to breath-alcohol testing, [DS 2; MIO 2] and that Defendant repeatedly refused. [DS
9 2; MIO 2-3] However, in the course of those refusals, Defendant suggested that he
10 would take a blood test. [DS 2; MIO 2-3] It is also undisputed that the officer told
11 	Defendant that the law required him to take the test of the officer's choosing, and
12 	explained that ifhe submitted to the breath test, Defendant could have an independent
13 	test thereafter. 	[MIO 	2-3; 	RP 	74, 	82] 	Defendant was 	further 	advised 	of the
14 consequences of his refusal to submit to breath-alcohol testing. [RP 74, 82-83]
15 	However, 	Defendant remained 	uncooperative 	and 	argumentative, 	and 	he 	was
16 steadfast in his refusals. [RP 81-83] Based on this, Defendant's refusal to consent to
17 	breath-alcohol testing was deemed willful. [RP 100-102]
18 	{4} 	In his memorandum in opposition Defendant contends that he cannot be said
19 to have willfully refused to submit to testing because the arresting officer failed to
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1 explain with sufficient clarity that he would be entitled to arrange for an independent
2 blood-alcohol test after he submitted to breath-alcohol testing. [MIO 2-5]
3 	{5} 	Recently, in the case of State v. Smith, __ -NMCA-_, _ 	P.3d _ 	(No.
4 A-1-CA-34796, Feb. 18, 2019), this Court examined the nature and extent of the
5 obligations imposed upon law enforcement officers in this context. We observed that
6 the Implied Consent Act requires officers to advise motorists about their right to
7 arrange for an independent chemical test, id. ,I 7, but that right is triggered only if the
8 motorist first submits to testing of the law enforcement officer's choosing. Id. ,I 8.
9 	Where, as in this case, a motorist's "only request for a blood test was made as part of
10 	[his or] her refusal to take the officer-designated breath test[,]" the motorist cannot
11 	be said to have submitted to testing as required; and accordingly, the motorist's
12 	entitlement to independent blood testing becomes a non-issue. Id.
13 	{6} 	We understand Defendant to argue that the advisory should be deemed
14 defective because it failed to mention blood testing specifically, as opposed to
15 	independent chemical testing generally. [MIO 2-5] However, the "standardized"
16 advisory, id. ,I 2, which was repeatedly given in this case and which contains an
17 	explanation including advisement of the right to "an opportunity to arrange for ... a
18 	chemical test in addition to any test performed at the direction of a law enforcement
19 officer[,]" conforms to the statutory requirements. Id. ,I 7 (internal quotation marks
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1 and citation omitted). Moreover, " [o]ur Supreme Court has rejected attempts to
2 	impose additional duties on law enforcement officers beyond the explicit mandates"
3 	of the statute, and "we are not at liberty to add obligations that the Legislature did not
4 	see fit to include in the statute." Id. ,, 7, 9 (internal quotation marks and citation
5 omitted). We therefore reject Defendant' s suggestion that the officer was required to
6 elaborate or provide further clarification.
7 	{7} 	Accordingly, for the reasons stated in our notice 	of proposed summary
8 disposition and above, we affirm.
9 	{8}
10
11
IT IS SO ORDERED.
12 WE CONCUR:
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