State v. Coho ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-41247
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MALINDA COHO,
Defendant-Appellant.
APPEAL FROM THE METROPOLITAN COURT OF BERNALILLO COUNTY
Michelle Castillo Dowler, Metropolitan Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Steven J. Forsberg, Assistant Appellate Defender
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
YOHALEM, Judge.
{1} Defendant appeals from her bench trial conviction of aggravated driving while
under the influence of liquor or drugs (DWI). We issued a calendar notice proposing to
affirm. Defendant has filed a memorandum in opposition, which we have duly
considered. Unpersuaded, we affirm.
{2} Initially, we note that Defendant’s memorandum in opposition abandons all but
one issue raised in her docketing statement. [MIO 1] See Taylor v. Van Winkle’s IGA
Farmer’s Mkt., 1996-NMCA-111, ¶ 5, 122 N.M. 486, 927 P.2d 41 (recognizing that
issues raised in a docketing statement, but not contested in a memorandum in
opposition are abandoned). Defendant pursues her contention that the metropolitan
court erred when it considered her refusal to submit to a breath test as consciousness
of guilt. [MIO 1] We proposed to affirm on the grounds that New Mexico courts have
long held that a fact-finder may reasonably infer consciousness of guilt and fear of the
results from a defendant’s refusal to take a breath test. [CN 7]
{3} Defendant, in her memorandum in opposition, makes numerous arguments
challenging McKay v. Davis, 1982-NMSC-122, ¶¶ 6, 16, 99 N.M. 29, 653 P.2d 860,
which provides that evidence of a breath test refusal as consciousness of guilt is
admissible and relevant. First, she argues that because the “[d]rawing [of] an
individual’s breath or blood for purposes of testing for alcohol content constitutes a
search within the meaning of the Fourth Amendment,” see State v. Storey, 2018-NMCA-
009, ¶ 24, 410 P.3d 256, “the breath alcohol test was a warrantless search” and was
unreasonable. [MIO 1-2] In support of her contention, she argues that McKay did not
address the “chilling effect” of a defendant’s rights under the Fourth Amendment. [MIO
2] Defendant argues that “[t]he justification for an evidentiary exception found in McKay
was expressly to punish drivers for asserting their right to refuse to consent to a
warrantless search,” and that this is contradictory to the holding in Garcia v. State,
1986-NMSC-007, ¶ 7, 103 N.M. 713, 712 P.2d 1375, that “[a person] has a right to
refuse to consent to a warrantless search without such refusal being used to implicate
his guilt.” [MIO 3]
{4} Although McKay did not consider the Fourth Amendment in its analysis and
holding that evidence of a refusal to submit to a breath test is admissible and relevant,
this Court, in Storey, did consider the implications of the drawing of an individual’s
breath or blood for purposes of testing for alcohol under the Fourth Amendment. 2018-
NMCA-009, ¶¶ 23-28. Storey recognized a distinction between a blood and breath test,
explaining that the Fourth Amendment does not permit warrantless blood draws for
alcohol testing as searches incident to arrest because “[i]t is significantly more
intrusive,” but that warrantless breath alcohol tests “are constitutional as searches
incident to arrest.” Id. ¶¶ 25, 26 (internal quotation marks and citation omitted).
{5} Moreover, we are unpersuaded that Garcia can be read as holding that evidence
of a breath test refusal cannot be used as consciousness of guilt. The issue in Garcia
addressed whether the defendant’s “refusal to consent to an automobile search could
be used against him at trial as proof of his guilt.” 1986-NMSC-007, ¶ 2. The Court
explained that “[i]f the government could use such a refusal against the citizen, an unfair
and impermissible burden would be placed upon the assertion of a constitutional right”
and as such, “[i]t cannot be evidence of a crime for a citizen to refuse entry to his or her
home or possession such as an automobile.” Id. ¶ 7 (internal quotation marks and
citation omitted). Because Garcia addresses warrantless searches under different
circumstances, we conclude that it is not controlling in the instant case. Accordingly, we
remain unpersuaded that the proposition in McKay—that evidence of a refusal can be
used to support consciousness of guilt—does not apply to Defendant’s case.
{6} Second, Defendant maintains that the reasoning in McKay implicates the
unconstitutional conditions doctrine because under the Implied Consent Act there is an
implicit precondition that “[a]ny person who operates a motor vehicle within this state
shall be deemed to have given consent . . . to chemical tests of his breath or blood or
both.” NMSA 1978, § 66-8-107(A) (1993). [MIO 4] Specifically, Defendant argues that
“[m]aking a person agree to irrevocable consent to warrantless searches, . . . and in turn
permitting refusal to be used as evidence of guilt, in return for the granting of a driver’s
license[,] is an unconstitutional condition.” [MIO 6] Defendant, however, has cited to no
New Mexico law in support of this contention. See State v. Vigil-Giron, 2014-NMCA-
069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts will not consider an issue if no authority is
cited in support of the issue and that, given no cited authority, we assume no such
authority exists.”).
{7} Third, Defendant asserts that McKay interpreted the Implied Consent Act as
calling for an evidentiary exception for the use of refusal evidence, and that there is no
statutory support for such an exception. [MIO 7] She further argues that “[i]f the
[L]egislature had desired to try and create an evidentiary exception for refusal evidence,
it would have said so, as [L]egislatures in other states have.” [MIO 7] “[W]e presume
that the Legislature knows the law and acts rationally.” Bybee v. City of Albuquerque,
1995-NMCA-061, ¶ 11, 120 N.M. 17, 896 P.2d 1164. As such, as Defendant
acknowledges, had the Legislature intended to clarify or change McKay’s interpretation
of the Implied Consent Act with respect to the use of a refusal as evidence of guilt, it
would have done so. Accordingly, we remain unpersuaded that evidence of a refusal to
submit to a breath test cannot be used to show a defendant’s consciousness of guilt.
{8} Fourth, Defendant states that in McKay, the Court cited to a United States
Supreme Court case, Schmerber v. California, 384 U.S. 757 (1966), to find that the right
to self-incrimination was not violated by using refusal as evidence of guilt. She argues
that other states have refused to follow Schmerber. However, this Court is bound by the
precedent set by our Supreme Court. See Alexander v. Delgado, 1973-NMSC-030, ¶¶
8-10, 84 N.M. 717, 507 P.2d 778 (holding that the Court of Appeals is bound by, and
may not overrule or deviate from New Mexico Supreme Court precedent). As such,
because McKay provides that evidence of a breath test refusal may be used to support
consciousness of guilt, we are unpersuaded by Defendant’s argument.
{9} Finally, Defendant challenges the admission of the refusal evidence and argues
that this Court should review the issue de novo. [MIO 9] Defendant cites to Idaho law in
support of this proposition. However, this Court does not need to rely on out-of-state
authorities to decide the issue here. It is well settled that “[w]e review the admission of
evidence under an abuse of discretion standard.” State v. Sarracino, 1998-NMSC-022,
¶ 20, 125 N.M. 511, 964 P.2d 72.
{10} Similarly, we are unpersuaded by Defendant’s assertion that evidence of a
breath test refusal is irrelevant. [MIO 10] Defendant argues that “[t]he innocent and
guilty equally can invoke their rights, including the right to refuse to consent to a
warrantless search,” such that “the refusal evidence does not have ‘any tendency to
make a fact more or less probable than it would be without the evidence.’” Rule 11-
401(A) NMRA. [MIO 10]. Defendant acknowledges, however, that McKay held that “a
defendant’s refusal to take a chemical test is relevant to show his consciousness of guilt
and fear of the test results.” 1982-NMSC-122, ¶ 16. As noted above, this Court is bound
by the precedent set by our Supreme Court. See Alexander, 1973-NMSC-030, ¶¶ 8-10.
{11} For the reasons stated in our notice of proposed disposition and herein, we affirm
Defendant’s conviction.
{12} IT IS SO ORDERED.
JANE B. YOHALEM, Judge
WE CONCUR:
KRISTINA BOGARDUS, Judge
SHAMMARA H. HENDERSON, Judge