{ "id": 707439, "name": "STATE of New Mexico, DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Plaintiff-Appellant, v. Jesse ROMERO, Defendant-Appellee", "name_abbreviation": "State, Department of Transportation v. Romero", "decision_date": "1987-12-17", "docket_number": "No. 9146", "first_page": "657", "last_page": "660", "citations": [ { "type": "official", "cite": "106 N.M. 657" }, { "type": "parallel", "cite": "748 P.2d 30" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "88 N.M. 16", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837477 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0016-01" ] }, { "cite": "98 N.M. 805", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582586 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0805-01" ] }, { "cite": "88 A.L.R.2d 1064", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "453 N.E.2d 1314", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "7 Ohio Misc.2d 6", "category": "reporters:state", "reporter": "Ohio Misc. 2d", "case_ids": [ 6710069 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ohio-misc-2d/7/0006-01" ] }, { "cite": "221 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "136 Ga.App. 448", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 763106 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ga-app/136/0448-01" ] }, { "cite": "278 S.C. 603", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2152949 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/sc/278/0603-01" ] }, { "cite": "430 A.2d 338", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1981, "opinion_index": 0 }, { "cite": "59 Pa. Commw. 419", "category": "reporters:state", "reporter": "Pa. Commw.", "case_ids": [ 1920832 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/pa-commw/59/0419-01" ] }, { "cite": "457 A.2d 188", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1983, "opinion_index": 0 }, { "cite": "72 Pa. Commw. 608", "category": "reporters:state", "reporter": "Pa. Commw.", "case_ids": [ 1938424 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/pa-commw/72/0608-01" ] }, { "cite": "416 A.2d 113", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1980, "opinion_index": 0 }, { "cite": "52 Pa.Commw. 571", "category": "reporters:state", "reporter": "Pa. Commw.", "case_ids": [ 1910653 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/pa-commw/52/0571-01" ] }, { "cite": "500 A.2d 1288", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1985, "opinion_index": 0 }, { "cite": "93 Pa. Commw. 221", "category": "reporters:state", "reporter": "Pa. Commw.", "case_ids": [ 1341941 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/pa-commw/93/0221-01" ] }, { "cite": "381 N.W.2d 903", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10648652 ], "opinion_index": 0, "case_paths": [ "/nw2d/381/0903-01" ] }, { "cite": "99 N.M. 29", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584536 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "30" }, { "page": "861" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0029-01" ] }, { "cite": "89 N.M. 223", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867377 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0223-01" ] }, { "cite": "101 N.M. 470", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586378 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "477" }, { "page": "1142" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0470-01" ] }, { "cite": "179 A.2d 161", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1962, "pin_cites": [ { "page": "164" } ], "opinion_index": 0 }, { "cite": "73 N.J.Super. 40", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 359643 ], "year": 1962, "pin_cites": [ { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nj-super/73/0040-01" ] }, { "cite": "94 N.M. 175", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573223 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "177", "parenthetical": "quoting Quinlan v. Bd. of Ed. of North Bergen Tp., 73 N.J.Super. 40, 46, 179 A.2d 161, 164 (1962)" }, { "page": "153", "parenthetical": "quoting Quinlan v. Bd. of Ed. of North Bergen Tp., 73 N.J.Super. 40, 46, 179 A.2d 161, 164 (1962)" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0175-01" ] }, { "cite": "101 N.M. 291", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586346 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nm/101/0291-01" ] }, { "cite": "102 N.M. 529", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580041 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nm/102/0529-01" ] }, { "cite": "85 N.M. 457", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775680 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "459", "parenthetical": "emphasis added" }, { "page": "393", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0457-01" ] }, { "cite": "738 P.2d 1325", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "105 N.M. 442", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599071 ], "opinion_index": 0, "case_paths": [ "/nm/105/0442-01" ] } ], "analysis": { "cardinality": 654, "char_count": 11507, "ocr_confidence": 0.822, "pagerank": { "raw": 9.64852315030042e-08, "percentile": 0.5279441002158813 }, "sha256": "6c4ab9008a4b53900472ab356e63663b9c8296596cb302b58aa38d1e31ee1471", "simhash": "1:16e08933bf859729", "word_count": 1889 }, "last_updated": "2023-07-14T15:27:22.270695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID and FRUMAN, JJ., concur." ], "parties": [ "STATE of New Mexico, DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Plaintiff-Appellant, v. Jesse ROMERO, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nBIVINS, Judge.\nThis appeal comes before this court for decision after the case was submitted to an advisory committee pursuant to an experimental plan. See Boucher v. Foxworth Galbraith Lumber Co., 105 N.M. 442, 738 P.2d 1325 (Ct.App.1986). The committee unanimously recommended a decision reversing the district court. This court has considered the transcript and briefs, together with the opinion of the advisory committee. We adopt the opinion of the advisory committee, as modified.\nThe State of New Mexico, Transportation Department, Motor Vehicle Division (MVD), plaintiff-appellant, appeals from an order of the district court overturning MVD\u2019s decision to revoke the driver\u2019s license of defendant-appellee Jesse Romero. The issue on appeal is whether the district court erred in finding that no reasonable grounds existed for MVD\u2019s revocation of Romero\u2019s license to drive, based on the record of the administrative proceeding. Because we determine that reasonable grounds did exist in the record, we reverse.\nFACTS\nAn Espa\u00f1ola police officer arrested Romero for driving while intoxicated. Probable cause for the arrest is not an issue. After arresting Romero, the officer explained the implied consent law and advised Romero that a failure to take the breath test could result in the revocation of his driver\u2019s license.\nRomero attempted three times to blow up the balloon. He first blew up the balloon to approximately one and one-half inches, the size of a \u201cdollar coin.\u201d The officer explained that the balloon had to be inflated twelve to fourteen inches in diameter for the test to be effective. Romero failed to blow up the balloon on the next two tries *and told the officer he could not fully inflate the balloon because of pain he felt from an injury he had received to his foot. After Romero failed on the third try, the officer stated that he would consider Romero\u2019s actions a refusal to take the test. The officer administered no other tests.\nAt the revocation hearing, Romero testified that he recently had a nerve between the bones in his foot surgically removed, and that his foot had been surgically broken and reset. He introduced into evidence a letter from his physician, Dr. Bell, that stated in relevant part: \u201cIt is possible that blowing on a balloon might cause pain in Jesse\u2019s feet having had surgery on them in the past 6 months, although the mechanism of such pain is unclear.\u201d\nThe MVD hearing officer concluded that the state had met its burden of establishing the statutory requirements for revocation of a driver\u2019s license and the state met the burden of proving that Romero refused to take the test without good cause. The hearing officer ordered a one-year revocation of Romero\u2019s driver\u2019s license.\nRomero appealed the decision to the First Judicial District Court, which reversed the hearing officer\u2019s decision and reinstated Romero\u2019s driver\u2019s license. The district court found from the administrative record that Romero had undergone foot surgery; that he had notified the arresting officer of the surgery; the prior surgery inhibited Romero\u2019s efforts to blow up the balloon; Romero had attempted to blow up the balloon three times; and, despite the extenuating circumstances, the officer did not attempt to give Romero a blood-alcohol test. Central to the district court\u2019s decision was its conclusion that the state had failed to meet its burden of proof that Romero had refused to submit to the test. It also concluded that, in view of the circumstances, the officer should have made an effort to administer a blood-alcohol test.\nDISCUSSION\nIn reviewing a hearing officer\u2019s decision to revoke a driver\u2019s license, the district court does not conduct a de novo review. On appeal, \u201cit is for the [district] court to determine only whether reasonable grounds exist for revocation or denial of the person\u2019s license or privilege to drive ****\u2019\u2019 NMSA 1978, \u00a7 66-8-112(G) (Repl.Pamp.1987). Reasonable grounds include:\n(1) the law enforcement officer must have had reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor; (2) the person must have been under arrest; (3) the person must have refused, to submit to a chemical test upon request of the law enforcement offieer[;] and (4) the law enforcement officer must have advised that the failure to submit to a test could result in revocation of his privilege to drive.\nState, Dep\u2019t of Motor Vehicles v. Gober, 85 N.M. 457, 459, 513 P.2d 391, 393 (1973) (emphasis added).\nThe standard of review for appeals from administrative agencies is whether substantial evidence in the record as a whole supports the agency\u2019s decision. In re Electrical Serv. in San Miguel County, 102 N.M. 529, 697 P.2d 948 (1985); Duke City Lumber Co. v. New Mexico Envtl. Improvement Bd., 101 N.M. 291, 681 P.2d 717 (1984). Substantial evidence is \u201c \u2018such evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d New Mexico Human Servs. Dep\u2019t v. Garcia, 94 N.M. 175, 177, 608 P.2d 151, 153 (1980) (quoting Quinlan v. Bd. of Ed. of North Bergen Tp., 73 N.J.Super. 40, 46, 179 A.2d 161, 164 (1962)). \u201cSubstantial evidence in an administrative agency review requires whole record review, not a review limited to those findings most favorable to the agency order.\u201d Groendyke Transp., Inc. v. New Mexico State Corp. Comm\u2019n, 101 N.M. 470, 477, 684 P.2d 1135, 1142 (1984).\nWhere a difference or conflict in the evidence exists, a court should not substitute its opinion for that of the administrative agency. Public Serv. Co. of N.M. v. New Mexico Envtl. Improvement Bd., 89 N.M. 223, 549 P.2d 638 (Ct.App.1976). We presume the agency\u2019s determination is correct. New Mexico Human Servs. Dep\u2019t v. Garcia.\nSubstantial evidence supports the hearing officer\u2019s determination that Romero refused to submit to a breath test. In the instant case, the district court substituted its opinion for that of the hearing officer as to the findings of fact. In doing so, the district court erred.\nThe Implied Consent Act, NMSA 1978, Sections 66-8-105 to -112 (Repl.Pamp. 1987), \u201cis intended to deter driving while intoxicated and to aid in discovering and removing the intoxicated driver from the highway.\u201d McKay v. Davis, 99 N.M. 29, 30, 653 P.2d 860, 861 (1982). \u201cAny person who operates a motor vehicle within this state shall be deemed to have given consent * * * to chemical tests of his breath or blood, as determined by a law enforcement officer ****\u2019\u2019 \u00a7 66-8-107(A). \u201cA test of blood or breath shall be administered at the discretion of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle within this state while under the influence of intoxicating liquor or drug.\u201d \u00a7 66-8-107(B). The Implied Consent Act authorizes the revocation of a person\u2019s New Mexico driver\u2019s license for a period of one year for refusal to submit to a breath test. \u00a7 66-8-lll(B).\nWhether there is a refusal to submit to a breath test is a question of fact, not of law. Burke v. Commissioner of Pub. Safety, 381 N.W.2d 903 (Minn.App.1986); Zubik v. Commonwealth, Dep\u2019t of Transp., Bureau of Traffic Safety, 93 Pa. Commw. 221, 500 A.2d 1288 (1985); Commonwealth, Dep\u2019t of Transp., Bureau of Traffic Safety v. Dauer, 52 Pa.Commw. 571, 416 A.2d 113 (1980). We have never decided what constitutes a \u201crefusal\u201d to submit to a chemical test as required by the Implied Consent Act. \u201cRefusal,\u201d according to Black\u2019s Law Dictionary 1152 (5th ed. 1979), means, \u201c[t]he declination of a request or demand, or the omission to comply with some requirement of law, as the result of a positive intention to disobey.\u201d\nIn reported decisions from other jurisdictions, a motorist\u2019s testimony that he attempted but was unable to blow air sufficiently for a breath test has been held insufficient, absent other competent evidence, to prove inability to take the test. Commonwealth, Dep\u2019t of Transp., Bureau of Traffic Safety v. Hudock, 72 Pa. Commw. 608, 457 A.2d 188 (1983); Brinkerhoff v. Commonwealth, Dep\u2019t of Transp., Bureau of Traffic Safety, 59 Pa. Commw. 419, 430 A.2d 338 (1981); White v. South Carolina Dep\u2019t of Highways & Pub. Transp., 278 S.C. 603, 299 S.E.2d 852 (1983); see also Pfeffer v. Department of Pub. Safety, 136 Ga.App. 448, 221 S.E.2d 658 (1975); Wilder v. McCullion, 7 Ohio Misc.2d 6, 453 N.E.2d 1314 (1983). See generally Annotation, Suspension or Revocation of Driver\u2019s License for Refusal to Take Sobriety Test, 88 A.L.R.2d 1064 (1963 & Supp.1979).\nOnce the state has proved the elements of the motorist\u2019s refusal to submit to a chemical test, the burden is on the motorist to show his refusal was based upon an inability to comply. See, e.g., Zubik v. Commonwealth, Dep\u2019t of Transp., Bureau of Traffic Safety, and cases cited therein.\nIn this case, the record as a whole only shows that Romero claimed to be unable to blow up the balloon sufficiently to enable the arresting officer to complete the test. While this testimony is entitled to some weight, it is not supported by Dr. Bell\u2019s letter. That letter is not probative as to whether or not Romero was inhibited from blowing up the balloon. Also, nothing in the record indicates that Dr. Bell had prior knowledge or training in the operation of the test used by the arresting officer. Rules governing the admissibility of evidence before administrative agencies are often relaxed to expedite administrative procedure; rules relating to weight, applicability or materiality of evidence are not so limited. Saenz v. New Mexico Dep\u2019t of Human Servs., 98 N.M. 805, 653 P.2d 181 (Ct.App.1982). The hearing officer was entitled to evaluate the testimony of Romero, as well as the letter of Dr. Bell, and weigh both against the testimony of the arresting officer. See White v. South Carolina Dep\u2019t of Highways & Pub. Transp. The record supports the hearing officer\u2019s conclusion that Romero refused to submit to a breath test. It is not the proper function of either this court or the district court to reweigh the evidence and to substitute its judgment for that of the hearing officer, so long as the agency decision is supported by the record. Duke City Lumber Co. v. New Mexico Envtl. Improvement Bd.\nRomero also asks this court to approve the district court\u2019s decision that a blood test should have been offered. Our earlier holding that Romero refused to submit to a breath test is determinative of the issues in this case and, therefore, we need not reach this issue. See \u00a7 66-8-109; State v. Myers, 88 N.M. 16, 536 P.2d 280 (Ct.App.1975).\nCONCLUSION\nWe, therefore, reverse the district court\u2019s decision and remand with instructions to reinstate the decision of the hearing officer. Mr. Romero shall pay the cost of the appeal.\nIT IS SO ORDERED.\nThis court acknowledges the aid of attorneys Charles W. Daniels, Randi McGinn and William E. Snead in the preparation of this opinion. These attorneys constituted an advisory committee selected by the chief judge, and we express our gratitude to them for their voluntary service and the quality of their work.\nALARID and FRUMAN, JJ., concur.", "type": "majority", "author": "BIVINS, Judge." } ], "attorneys": [ "Wanda Wilkinson, Staff Atty., Transp. Dept., Santa Fe, for plaintiff-appellant.", "Wilbert E.A. Maes, Espa\u00f1ola, for defendant-appellee." ], "corrections": "", "head_matter": "748 P.2d 30\nSTATE of New Mexico, DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Plaintiff-Appellant, v. Jesse ROMERO, Defendant-Appellee.\nNo. 9146.\nCourt of Appeals of New Mexico.\nDec. 17, 1987.\nWanda Wilkinson, Staff Atty., Transp. Dept., Santa Fe, for plaintiff-appellant.\nWilbert E.A. Maes, Espa\u00f1ola, for defendant-appellee." }, "file_name": "0657-01", "first_page_order": 697, "last_page_order": 700 }