{ "id": 106488, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Glenn DUQUETTE, Defendant-Appellant", "name_abbreviation": "State v. Duquette", "decision_date": "1999-12-30", "docket_number": "No. 19,784", "first_page": "530", "last_page": "535", "citations": [ { "type": "official", "cite": "128 N.M. 530" }, { "type": "parallel", "cite": "994 P.2d 776" }, { "type": "parallel", "cite": "2000-NMCA-006" } ], "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": "113 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723212 ], "weight": 2, "pin_cites": [ { "page": "799" }, { "page": "1165" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0789-01" ] }, { "cite": "106 N.M. 300", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708052 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "304" }, { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0300-01" ] }, { "cite": "119 N.M. 532", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561274 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "540" }, { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0532-01" ] }, { "cite": "105 N.M. 538", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598949 ], "weight": 2, "pin_cites": [ { "page": "544" }, { "page": "784" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0538-01" ] }, { "cite": "990 P.2d 824", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1999, "opinion_index": 0 }, { "cite": "1999-NMCA-127", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106531 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0093-01" ] }, { "cite": "103 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711409 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "284" }, { "page": "1135" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0282-01" ] }, { "cite": "99 N.M. 29", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584536 ], "weight": 6, "year": 1982, "pin_cites": [ { "page": "30" }, { "page": "861" }, { "page": "30" }, { "page": "861" }, { "page": "30" }, { "page": "861" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0029-01" ] }, { "cite": "105 N.M. 27", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598982 ], "weight": 4, "pin_cites": [ { "page": "32" }, { "page": "1347" }, { "page": "32" }, { "page": "1347", "parenthetical": "holding that because the language of the Implied Consent Act does not limit the number of chemical tests and multiple testing is consistent with the purpose of the Act, an extra blood test was permissible" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0027-01" ] }, { "cite": "121 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566678 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "114" }, { "page": "1383" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0111-01" ] }, { "cite": "119 N.M. 634", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561354 ], "weight": 2, "pin_cites": [ { "page": "636" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0634-01" ] }, { "cite": "1998-NMCA-102", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834231 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0581-01" ] }, { "cite": "109 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590280 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "790" }, { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0789-01" ] }, { "cite": "100 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588680 ], "weight": 2, "pin_cites": [ { "page": "116" }, { "page": "1263" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0111-01" ] }, { "cite": "87 N.M. 74", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831328 ], "weight": 5, "pin_cites": [ { "page": "76" }, { "page": "302" }, { "page": "76" }, { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0074-01" ] }, { "cite": "948 P.2d 267", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "124 N.M. 249", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 17119 ], "opinion_index": 0, "case_paths": [ "/nm/124/0249-01" ] }, { "cite": "1997-NMCA-110", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0 }, { "cite": "1998-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834257 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0219-01" ] }, { "cite": "111 N.M. 118", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715077 ], "weight": 2, "pin_cites": [ { "page": "120" }, { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0118-01" ] }, { "cite": "100 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588665 ], "weight": 4, "pin_cites": [ { "page": "132" }, { "page": "1279" }, { "page": "132" }, { "page": "1279" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0127-01" ] } ], "analysis": { "cardinality": 781, "char_count": 16890, "ocr_confidence": 0.714, "pagerank": { "raw": 1.41642314074542e-07, "percentile": 0.6481248520666649 }, "sha256": "05f7ed727295d6f3c0f0666400b3ac0332a7acb3a9eac4538f0fce08934bd595", "simhash": "1:1f72e412fb45e290", "word_count": 2777 }, "last_updated": "2023-07-14T19:01:18.689942+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and APODACA, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Glenn DUQUETTE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} Glenn Duquette (Defendant) appeals his conviction for driving while under the influence of intoxicating liquor (DWI) and his sentence as a fourth-time DWI offender. Defendant argues that the trial court erred in denying his motion to suppress his blood-alcohol test results and his motion for a mistrial. We affirm.\nBACKGROUND\n{2} Officer Richard Alvarez was dispatched to a domestic dispute and was informed that a light-blue Nissan was leaving the residence. On his way to the residence, Officer Alvarez observed a Nissan truck that matched the dispatcher\u2019s description. Officer Alvarez pulled the truck over and informed Defendant why he had been stopped. Defendant admitted that he had come from the residence in question. Officer Alvarez observed that Defendant had bloodshot eyes and slurred speech. Defendant admitted having consumed three beers. Defendant refused to perform a field sobriety test and was arrested for DWI.\n{3} At the police station, Defendant again refused to take a field sobriety test. Officer Alvarez read Defendant his rights under the Implied Consent Act, NMSA 1978, \u00a7\u00a7 66-8-105 to -112 (1978, as amended through 1993), and asked Defendant to take a breath test. Defendant became belligerent, directed profanities at the officers, and refused to take the breath test. However, Defendant later agreed to take the test. Defendant\u2019s first attempt at taking the test resulted in an \u201cinvalid sample\u201d and his second attempt resulted in a reading of \u201cno sample introduced.\u201d\n{4} Officer Alvarez, having obtained and reviewed Defendant\u2019s driving record, believed that he was investigating Defendant\u2019s fourth DWI. Because of this belief and the fact that he was unable to obtain a breath test result from Defendant, Officer Alvarez obtained a search warrant to take a blood sample from Defendant. The blood test revealed that Defendant\u2019s blood-alcohol level exceeded the legal limit for driving a motor vehicle. The State charged Defendant with DWI, in violation of Section 66-8-102.\n{5} At trial Defendant moved to suppress the blood-test results, arguing that the search warrant affidavit did not demonstrate probable cause and that the Legislature did not intend for a DWI to be the felony needed to obtain a search warrant under Section 66-8-111(A), which permits a search warrant authorizing chemical tests when an officer\u2019s affidavit states probable cause to believe that a suspect has committed a felony while under the influence of alcohol. The court denied the motion and allowed the blood-test evidence to be presented to the jury. The next day, before closing arguments, Defendant moved for a mistrial, arguing that Section 66-8-111 (A) requires the suspect to refuse to submit to a chemical test before a search warrant may be obtained. The trial court denied Defendant\u2019s motion and allowed the case to go to the jury. The jury found Defendant guilty of driving with an alcohol concentration of .08 or more. The trial court held that this conviction was Defendant\u2019s fourth DWI and that pursuant to Section 66-8-102(G), Defendant had committed a fourth-degree felony.\nDISCUSSION\n{6} Defendant raises three issues on appeal. First, Defendant argues that the trial court erred by denying his motion to suppress because the search warrant affidavit did not demonstrate probable cause that he had committed a felony while under the influence of alcohol, as required under Section 66-8-111(A). Second, Defendant argues that the motion to suppress should have been granted because the Legislature did not intend for the DWI offense to be used as the felony for which there must be probable cause to justify a search warrant under Section 66-8-111(A). Finally, Defendant contends that the trial court erred by denying his motion for mistrial, arguing that Section 66-8-111(A) requires the suspect to refuse to take a chemical test before a search warrant may be obtained. According to Defendant, the search warrant was improperly issued because he cured his initial refusal by agreeing to take a breath test.\nThe Court Did Not Err in Denying Defendant\u2019s Motions\nA. The Affidavit Established Probable Cause\n{7} When reviewing the denial of a motion to suppress, we must determine \u201cwhether the law was correctly applied to the facts, viewing them in a manner most favorable to the prevailing party; all reasonable inferences in support of the court\u2019s decision will be indulged in, and all inferences or evidence to the contrary will be disregarded.\u201d State v. Boeglin, 100 N.M. 127, 132, 666 P.2d 1274, 1279 (Ct.App.1983); see also State v. Munoz, 111 N.M. 118, 120, 802 P.2d 23, 25 (Ct.App.1990). Under this standard of review, we are not bound by the trial court\u2019s ruling if it is based on an error of law. See Boeglin, 100 N.M. at 132, 666 P.2d at 1279.\n{8} Section 66-8-111 reads in relevant part:\nA. If a person under arrest for violation of an offense enumerated in the Motor Vehicle Code [Articles 1 to 8 of Chapter 66 NMSA 1978, except 66-7-102.1 NMSA 1978] refuses upon request of a law enforcement officer to submit to chemical tests designated by the law enforcement agency as provided in Section 66-8-107 NMSA 1978, none shall be administered except when a municipal judge, magistrate or district judge issues a search warrant authorizing chemical tests as provided in Section 66-8-107 NMSA 1978 upon his finding in a law enforcement officer\u2019s written affidavit that there is probable cause to believe that the person has driven a motor vehicle while under the influence of alcohol or a controlled substance, thereby causing the death or great bodily injury of another person, or there is probable cause to believe that the person has committed a felony while under the influence of alcohol or a controlled substance and that chemical tests as provided in Section 66-8-107 NMSA 1978 will produce material evidence in a felony prosecution.\n{9} Defendant argues that the blood-alcohol evidence was inadmissible because the search warrant affidavit did not establish probable cause that Defendant had committed a felony while under the influence of alcohol. According to Defendant, the only information in the search warrant affidavit specifically describing his driving record was in paragraph eight, and paragraph eight was improperly conclusory because it did not indicate Officer Alvarez\u2019 source for Defendant\u2019s driving history or the number of Defendant\u2019s prior DWI convictions. Paragraph eight stated: \u201cUpon an examination of the above listed [D]efendant[\u2019]s driving history there was sufficient evidence to charge the above listed defendant for a fourth offense or subsequent DWI.\u201d\n{10} In holding that the affidavit was sufficient, the trial court reasoned that paragraph eight is not a conclusory statement because it identified \u201c[D]efendant[\u2019]s driving history\u201d as the source of Officer Alvarez\u2019 information. Second, the trial court reasoned that in applying a common sense reading of the affidavit, the phrase \u201cfourth or subsequent DWI\u201d in paragraph eight \u201cmeans fourth or fifth or sixth or seventh or eighth or later.\u201d\n{11} In reviewing the sufficiency of a search warrant affidavit, we apply a de novo standard of review. See In re Shon Daniel K., 1998-NMCA-069, \u00b6 8, 125 N.M. 219, 959 P.2d 553. In so doing, \u201cwe consider only the content of the sworn affidavit submitted to the issuing magistrate.\u201d Id. \u201c[T]he affidavit must contain sufficient facts to enable the issuing magistrate to independently pass judgment on the existence of probable cause.\u201d State v. Pargas, 1997-NMCA-110, \u00b6 7, 124 N.M. 249, 948 P.2d 267. \u201c[O]nly a probability of criminal conduct need be shown.\u201d State v. Bowers, 87 N.M. 74, 76, 529 P.2d 300, 302 (Ct.App.1974). The affidavit need not establish guilt beyond a reasonable doubt. See id. In determining if probable cause has been established, we make reasonable inferences and interpret the facts of the affidavit \u201c \u2018in a common sense and realistic fashion [without any] technical requirements of elaborate specificity.\u2019 \u201d Pargas, \u00b6 9 (quoting State v. Donaldson, 100 N.M. 111, 116, 666 P.2d 1258, 1263 (Ct.App.1983)). We apply \u201ca common-sense reading of the affidavit\u201d and show deference to the trial court\u2019s determination. See In re Shon Daniel K., \u00b6 8; Bowers, 87 N.M. at 76, 529 P.2d at 302.\n{12} In considering the facts in the affidavit and the reasonable inferences drawn from them, we hold that the affidavit in this case is adequate. Officer Alvarez stated in the affidavit that he had sixteen years of experience in the \u201cdetection, testing, and arrest\u201d of subjects under the influence of alcohol. In addition, Officer Alvarez stated that he \u201cis a full time salaried police officer employed by the Alamogordo Department of Public Safety and has been so employed for the past three years.\u201d This description of Officer Alvarez\u2019 experience as a police officer allowed the magistrate to reasonably infer that Officer Alvarez\u2019 reference in paragraph eight to \u201c[D]efendant[\u2019]s driving history\u201d was a reference to a Department of Motor Vehicle record or other official document that showed Defendant\u2019s driving history. Moreover, the magistrate could reasonably infer that Officer Alvarez\u2019 statement that \u201cthere was sufficient evidence to charge the above listed [Defendant for a fourth offense or subsequent DWI,\u201d meant that Defendant had enough prior convictions, not simply arrests, to charge Defendant with this felony.\n{13} While we find the affidavit sufficient in this particular case, the problem raised by this affidavit can be avoided in the future by either attaching the suspect\u2019s driving record to the affidavit or by stating in the affidavit the source of the officer\u2019s knowledge and articulating specific details in the affidavit, such as, \u201cDefendant\u2019s driving record shows that he has been convicted three times for DWI prior to this incident.\u201d Providing such detail is not overly burdensome and does not impose unduly technical requirements on the nonlawyers who generally draft these affidavits.\nB. DWI Can Be the Underlying Felony Offense for Which There Must be Probable Cause to Justify A Search Warrant Under Section 66-8-111(A)\n{14} Defendant next argues that the motion to suppress should have been granted because the Legislature did not intend for a DWI offense to be used as the felony for which there must be probable cause to justify a search warrant under Section 66-8-111(A). While Defendant made this argument at trial and in his docketing statement, Defendant\u2019s entire argument on this issue in his brief is that \u201cOfficer Alvarez[\u2019] use of the statute to obtain the warrant was not the [LJegislature[\u2019]s intent when it enacted the statute.\u201d\n{15} Defendant\u2019s contention is unpersuasive. \u201cWhen a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.\u201d State v. Jonathan M., 109 N.M. 789, 790, 791 P.2d 64, 65 (1990); accord State v. Shije, 1998-NMCA-102, \u00b6 6, 125 N.M. 581, 964 P.2d 142. We apply the plain meaning of the statute unless there is substantial doubt as to the meaning of the statute\u2019s language, or the literal language of the statute would lead to an absurd result. See State v. Muniz, 119 N.M. 634, 636, 894 P.2d 411, 413 (Ct.App.1995). \u201cInterpretation of a statute is an issue of law,\u201d which we review de novo. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1383 (1995).\n{16} The Implied Consent Act is intended \u201cto deter driving while intoxicated and to aid in discovering and removing the intoxicated driver from the highway.\u201d See State v. Copeland, 105 N.M. 27, 32, 727 P.2d 1342, 1347 (Ct.App.1986); McKay v. Davis, 99 N.M. 29, 30, 653 P.2d 860, 861 (1982). We see no rational basis on which to rule that a DWI offense cannot be the felony needed to obtain a search warrant under Section 66-8-111(A). Section 66-8-111(A) is part of an act that was designed to curtail the very offense at issue. See McKay, 99 N.M. at 30, 653 P.2d at 861. Moreover, the Legislature did not enumerate a list of felonies that can or cannot be used as the felony offense needed to obtain a search warrant. Therefore, we believe that the Legislature intended for a DWI offense to be used as a felony for which there must be probable cause to justify a search warrant under Section 66-8-111 (A).\nC. No Refusal is Required in Order to Obtain a Search Warrant Under Section 66-8-111(A)\n{17} Finally, Defendant contends that the trial court erred by denying his motion for mistrial, arguing that Section 66-8-111(A) requires that the suspect refuse to take a chemical test before a search warrant may be obtained. According to Defendant, the search warrant was improperly issued because he cured his initial refusal to take a chemical test by agreeing to take the breath test and thus the blood test was improperly obtained. Therefore, Defendant contends the court should not have allowed the blood-test results into evidence.\n{18} The grant or denial of a motion for mistrial is \u201caddressed to the sound discretion of the trial court and is only reviewable for an abuse of discretion.\u201d State v. Saavedra, 103 N.M. 282, 284, 705 P.2d 1133, 1135 (1985). \u201cAbuse of discretion occurs when the trial court\u2019s ruling [is] against logic and is not supported by reason.\u201d State v. Guilez, 1999-NMCA-127, \u00b6 18, 128 N.M. 93, 990 P.2d 206, cert. granted S.Ct. No. 25, 920, 990 P.2d 824 (September 22, 1999).\n{19} \u201cTo preserve a claim of error for appellate review involving the admissibility of evidence, a party must make a timely objection.\u201d State v. Lopez, 105 N.M. 538, 544, 734 P.2d 778, 784 (Ct.App.1986). This objection \u201calert[s] the trial judge to a claim of error and give[s] the judge an opportunity to correct any mistake\u201d that may have been made. Garcia v. La Farge, 119 N.M. 532, 540, 893 P.2d 428, 436 (1995). Defendant did not object to the admission of the blood-test results on this ground when the results were admitted. Defendant\u2019s motion for mistrial was raised at the conclusion of his case, the day after the evidence was submitted to the jury. The motion was not timely raised. See State v. Hovey, 106 N.M. 300, 304, 742 P.2d 512, 516 (1987); State v. Orosco, 113 N.M. 789, 799, 833 P.2d 1155, 1165 (Ct.App.1991).\n{20} Nonetheless, even if Defendant had properly preserved the issue for appeal, we would still affirm on the merits for the reasons that follow. The statute allows for those arrested for DWI to refuse to take a chemical test. However, a warrant may nevertheless be issued if a magistrate finds probable cause to believe that: (1) \u201cthe person has driven a motor vehicle while under the influence of alcohol or a controlled substance, thereby causing the death or great bodily injury of another person\u201d; or (2) \u201cthe person has committed a felony while under the influence of alcohol or a controlled substance and that chemical tests ... will produce material evidence in a felony prosecution.\u201d Section 66-8-111(A). We do not read the statute as narrowly as Defendant reads it. Based on our reading of the language in Section 66-8-111(A), we do not believe that a refusal is a condition precedent to issuance of a search warrant when, as here, there exists probable cause to believe Defendant committed a felony while under the influence of alcohol. Even were a refusal required before a search warrant could be issued, we do not read refusal as narrowly as Defendant, and we believe that the Legislature intended the circumstances in this case to come within the refusal contemplated under the statute. Additionally as we previously discussed, a purpose of the Implied Consent Act is to aid in the discovery and removal of intoxicated drivers from the highway. See McKay, 99 N.M. at 30, 653 P.2d at 861. Obtaining a search warrant when an alternative chemical test is necessary is consistent with this purpose. Thus, a search warrant for a chemical test may be issued pursuant to Section 66-8-111(A) irrespective of whether a person refuses to take the test. Cfi Copeland, 105 N.M. at 32, 727 P.2d at 1347 (holding that because the language of the Implied Consent Act does not limit the number of chemical tests and multiple testing is consistent with the purpose of the Act, an extra blood test was permissible). Therefore, we conclude that the trial court did not abuse its discretion in denying Defendant\u2019s motion for mistrial.\nCONCLUSION\n{21} We conclude that the motion to suppress and the motion for mistrial were properly denied and affirm Defendant\u2019s conviction.\n{22} IT IS SO ORDERED.\nDONNELLY and APODACA, JJ., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Donna Trujillo Dodd, Albuquerque, for Appellant.", "Patricia A. Madrid, Attorney General, M. Anne Kelly, Assistant Attorney General, Santa Fe, for Appellee." ], "corrections": "", "head_matter": "2000-NMCA-006\n994 P.2d 776\nSTATE of New Mexico, Plaintiff-Appellee, v. Glenn DUQUETTE, Defendant-Appellant.\nNo. 19,784.\nCourt of Appeals of New Mexico.\nDec. 30, 1999.\nDonna Trujillo Dodd, Albuquerque, for Appellant.\nPatricia A. Madrid, Attorney General, M. Anne Kelly, Assistant Attorney General, Santa Fe, for Appellee." }, "file_name": "0530-01", "first_page_order": 568, "last_page_order": 573 }