NM Supreme Court takes on aggravated DWI case

Refusal to have a blood test at issue

Laressa Vargas had performed the field sobriety test.

She had already passed her breath alcohol test, mostly, although she was later convicted of DWI.

And she’d had enough. No, she wouldn’t consent to a blood draw. She didn’t like needles. Plus, the Bernalillo County sheriff’s deputy asking her to take it didn’t have a warrant.

Deputy Patrick Rael — who suspected Vargas was high on drugs — charged her with aggravated DWI for refusing the blood test and used the state’s Implied Consent Act to justify it.

At the time, the act said a driver automatically consents to taking field and chemical sobriety tests — blood and breath — just by the act of driving. If a person suspected of driving while drunk refuses to take a test, the charge can be increased to aggravated DWI and the person’s driver’s license suspended for a year, even if he or she wasn’t driving while intoxicated.

But a 2016 U.S. Supreme Court case has changed this implied consent process, and Vargas’ case, now pending before the state Supreme Court, highlights it.

At a DWI checkpoint in 2011, court records show deputy Rael believed Vargas was drunk because he smelled alcohol. She performed poorly on her field sobriety test.

And her breath test showed her blood aclohol level was 0.04 percent.

A driver in New Mexico can be charged with DWI “impaired to the slightest degree” even with a blood alcohol level below the 0.08 percent level of presumed intoxication.

The deputy asked her to consent to a blood draw, even though he hadn’t gotten a judge to grant a warrant for the test.

She refused.

She was arrested and charged with aggravated driving while intoxicated, the base DWI charge stemming from her “to the slightest degree” impairment — and the aggravated element stemming from her refusal to take the blood test.

She was convicted, and her license was suspeded. She appealed.

At the time of her arrest, the state’s Implied Consent Act said that a person can be charged with aggravated DWI for refusing breath or blood tests.

But in June 2016, U.S. Supreme Court ruled in a case referred to as the Birchfield case that laws allowing officers to force a blood test without getting a warrant are unconstitutional.

That changed how police can charge — or threaten to charge — a driver who refuses a blood test.

Several months after the Birchfield case, the New Mexico Court of Appeals handed down a ruling in Vargas’ case, saying the enhancement of her charge was wrong and should be removed from the base driving while intoxicated charge, which they said should stay in place.

State prosecutors objected to this ruling, arguing that because Vargas’ case happened before the Birchfield case, the new rules should not apply.

The case was taken up by the state Supreme Court last month.

Vargas’ defense attorney, Steven Forsberg, argued before the justices that Birchfield’s warrant requirement for blood tests should apply.

“She did not consent. She used her right as a citizen to say, ‘No. I’m not going to give you any more permission than you need,’ and for that she has been penalized, and we believe that is clearly unconstitutional,” Forsberg said.

He argues that if an officer is allowed to threaten a greater charge for refusing consent, then any consent given is coerced and thus not consent.

John Kloss of the state Attorney General’s Office argued that Birchfield doesn’t apply, but even if it did, the law says police can take a warrantless blood test in emergencies, legally called exigent circumstances.

Just what those exigent circumstances were in Vargas’ case wasn’t made clear, and Justice Charles Daniels pressed Kloss to explain them.

Otherwise, Daniels questioned, “Would your argument lead to an automatic right to a warrantless blood test anytime an officer suspected he might find something in the blood?”

Kloss replied that officers would still need exigent circumstances and said that in this case the possible exigent circumstance might have been that a specialized drugged driving expert officer was unavailable to make it to the scene.

Justice Edward Chavez questioned Kloss about whether inconvenience amounted to exigency.

“You cannot criminalize somebody for not consenting to a warrantless blood test absent exigent circumstances,” Chavez said.

The justices have taken the case under advisement. It is unclear when they will rule.