(concurring in part, dissenting in part).
I agree with the majority that the district court erred in overturning the hearing officer’s determination that Suazo refused to take the breath test. I dissent, however, from the majority’s ruling that we must remand to determine whether Suazo’s consent to take a later test cured his initial refusal. We should reverse the district court’s reversal of the revocation of Suazo’s license.
In its pursuit of “basic fairness,” the majority goes beyond any other court in the country in giving a second chance to suspected intoxicated drivers who have already made an informed choice not to submit to a chemical test of their blood alcohol content (BAC). The rule created by the majority opinion will obstruct the enforcement of New Mexico’s laws governing driving while intoxicated (DWI).
Our task here is to interpret NMSA 1978, Section 66-8-lll(B) (Repl.Pamp.1987), which states:
The director [of the division of motor vehicles (DMV) ], upon receipt of a statement signed under penalty of perjury from a law enforcement officer stating that he had reasonable grounds to believe the arrested person had been driving a motor vehicle within this state while under the influence of intoxicating liquor or drug and that, upon his request, the person refused to submit to a chemical test after being advised that failure to submit could result in revocation of his privilege to drive, shall revoke the person’s New Mexico driver’s license or any nonresident operating privilege for a period of one year.
Nothing in the statutory language suggests that a driver can cure a refusal by a later offer to submit to a chemical test.
A clear majority of jurisdictions that have considered the issue permit no cure after a driver has refused to consent to a chemical test for intoxication. Zidell v. Bright, 264 Cal.App.2d 867, 71 Cal.Rptr. 111 (1968); People v. Graziano, 151 Ill.App.3d 475, 104 Ill.Dec. 325, 328, 502 N.E.2d 822, 825 (Ct.1986); Hoffman v. Iowa Dep’t of Transp., 257 N.W.2d 22 (Iowa 1977); Humphries v. Commonwealth, 807 S.W.2d 669 (Ky.Ct.App.1991); State v. Landry, 428 A.2d 1204 (Me.1981); Dudenhoeffer v. Director of Revenue, 780 S.W.2d 701 (Mo.Ct.App.1989); Johnson v. Division of Motor Vehicles, 219 Mont. 310, 711 P.2d 815 (1985); Wisch v. Jensen, 221 Neb. 609, 379 N.W.2d 755 (1986); State v. Bernhardt, 245 N.J.Super. 210, 584 A.2d 854 (App.Div.1991); Nicol v. Grant, 117 A.D.2d 940, 499 N.Y.S.2d 247 (1986); Skinner v. Motor Vehicles Div., 107 Or.App. 529, 812 P.2d 46 (1991); Cunningham v. Commonwealth, Dep’t of Transp., 105 Pa.Commw.Ct. 501, 525 A.2d 9 (1987); Peterson v. State, 261 N.W.2d 405 (S.D.1977); Conrad v. Schwendiman, 680 P.2d 736 (Utah 1984); Currier v. State, Dep’t of Motor Vehicles, 20 Wash.App. 16, 578 P.2d 1325 (1978).
In addition, three jurisdictions indicate that they will allow a cure only when the driver offers to submit to a test “almost immediately” after an initial refusal. Harlan v. State, 113 N.H. 194, 308 A.2d 856 (1973); Schultz v. Commissioner of Pub. Safety, 447 N.W.2d 17 (Minn.Ct.App.1989); In re Brooks, 27 Ohio St.2d 66, 271 N.E.2d 810 (1971). The rationale of this exception appears to be that in such circumstances there is not an actual refusal to submit to testing. See Schultz v. Commissioner of Pub. Safety. Courts in these jurisdictions strictly construe “almost immediately.” See Mossak v. Commissioner of Pub. Safety, 435 N.W.2d 578 (Minn.Ct.App.1989) (consent was ineffective although only five to ten minutes after refusal); Bowman v. McCullion, 21 Ohio App.3d 138, 486 N.E.2d 1225 (1985) (retraction not timely when made five minutes after refusal).
The majority opinion in this case adopts the minority rule that permits a cure in certain circumstances. Pruitt v. State, Dep’t of Pub. Safety, 825 P.2d 887 (Alaska 1992); State v. Hoover, 151 Ariz. 470, 728 P.2d 689 (Ct.App.1986); Zahtila v. Motor Vehicle Div., 39 Colo.App. 8, 560 P.2d 847 (1977); Larmer v. State, Dep’t of Highway Safety, 522 So.2d 941 (Fla.Dist.Ct.App.1988); State v. Moore, 62 Haw. 301, 614 P.2d 931 (1980); In re Smith, 115 Idaho 808, 770 P.2d 817 (Ct.App.1989); Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984); Pickard v. State, Dep’t of Pub. Safety, 572 So.2d 1098 (La.Ct.App.1990); Lund v. Hjelle, 224 N.W.2d 552 (N.D.1974). See Mathis v. North Carolina Div. of Motor Vehicles, 71 N.C.App. 413, 322 S.E.2d 436 (1984) (statute provides driver thirty minutes to make a decision regarding whether to submit to test). The test generally adopted in these jurisdictions is the one first set forth in Lund v. Hjelle, 224 N.W.2d at 557:
[T]he subsequent consent to take the test cures the prior first refusal when the request to take the test is made within a reasonable time after the prior first refusal; when such a test administered upon the subsequent consent would still be accurate; when testing equipment or facilities are still readily available; when honoring a request for a test, following a prior first refusal, will result in no substantial inconvenience or expense to the police; and when the individual requesting the test has been in police custody and under observation for the whole time since his arrest.
Some jurisdictions have added glosses to this test, such as requiring that the cure be within “a very short and reasonable time,” Standish, 683 P.2d at 1280 (emphasis added), or that the delay not “materially affect the test results,” Moore, 614 P.2d at 935; accord Zahtila; In re Smith.
Even under the minority rule, I doubt that remand is appropriate in this case. I find it significant that there appear to be no reported cases following Lund v. Hjelle in which the delay between the refusal and an effective cure was greater than one half hour. In Lund v. Hjelle itself the court remanded for a hearing on whether the criteria stated in the opinion were satisfied by an offer to take the test almost an hour after the refusal, but the North Dakota Supreme Court has more recently indicated that it will strictly apply the criteria set forth in Lund v. Hjelle. Asbridge v. North Dakota State Highway Comm’r, 291 N.W.2d 739, 750 (N.D.1980). In any event, there is no precedent for finding a cure two hours after a refusal, as occurred in this case.
My chief concern, however, is not that the majority opinion has misapplied the minority rule. My concern is with the minority rule itself. The two reasons given to support a rule permitting cures are that such a rule is fair and that the rule will further the statutory policy of encouraging drivers to submit to chemical tests. See, e.g., Pruitt, 825 P.2d at 894; Gaunt v. Motor Vehicle Div., 136 Ariz. 424, 666 P.2d 524, 527 (Ct.App.1983); In re Smith, 770 P.2d at 820-21. But the opinions do not satisfactorily explain why it is unfair to hold a driver responsible for making an informed decision to refuse to submit to a test. Nor do they explain how allowing cures will encourage drivers to submit to chemical tests. Presumably police officers in these jurisdictions do not tell drivers who have refused to submit: “Sorry, I wasn’t really telling the truth when I warned that your refusal would require a suspension of your license. If you change your mind soon enough, we won’t suspend your license.” Yet if officers do not provide such advice, drivers will not be influenced by judicial pronouncements establishing a right to cure a refusal. (I doubt that courts are suggesting that drivers be told of the right to cure when they are first requested to submit to a BAC test. Such a practice would likely reduce compliance.)
Perhaps one reason that courts do not find it necessary to expound upon the justifications for a cure rule is that they assume that the rule will cause no significant harm. For example, courts do not allow a driver to retract a refusal when honoring a request for a test will result in “substantial inconvenience or expense to the police” Lund v. Hjelle, 224 N.W.2d at 557. The North Dakota Supreme Court asserted that its rule would not frustrate the legislative purpose of its state’s Implied Consent Law. Id.
The opinions do not, however, recognize every means by which permitting cures can cause substantial harm. To be specific, the opinions adopting the minority rule have ignored a consideration that is very important in the New Mexico statutory scheme for the revocation of driver’s licenses of those suspected of DWI—allowing cures would burden the system for civil revocation of licenses. The New Mexico legislature has established “a summary administrative proceeding designed to handle license revocation matters quickly.” State v. Bishop, 113 N.M. 732, 735, 832 P.2d 793, 796 (Ct.App.1992). NMSA 1978, Section 66-8-112(E) (Cum.Supp.1992), states that a hearing on a revocation of license under the Implied Consent Act is limited to the following five issues:
(1) whether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within this state while under the influence of intoxicating liquor;
(2) whether the person was arrested;
(3) whether this hearing is held no later than ninety days after notice of revocation; and either
(4)(a) whether the person refused to submit to a test upon request of the law enforcement officer; and
(b) whether the law enforcement officer advised that the failure to submit to a test could result in revocation of the person’s privilege to drive; or
(5)(a) whether the chemical tests were administered pursuant to the provisions of the Implied Consent Act [66-8-105 to 66-8-112 NMSA 1978]; and
(b) the test results indicated a blood alcohol content of one-tenth of one percent or more by weight if the person is eighteen years of age or older or a blood alcohol content of five one-hundredths of one percent or more by weight if the person is less than eighteen years of age.
We recently held in Bierner v. State, 113 N.M. 696, 831 P.2d 995 (Ct.App.1992), that the BAC at issue in a license-revocation hearing is the BAC at the time of the test, not at the time that the licensee was driving. Our specific holding was that the state did not need to provide expert testimony relating the test result to the licensee’s BAC at the time the licensee was actually driving. We based our holding on the clear language of the statute but found support in the evident legislative purpose of conducting revocation hearings in an expedited manner. See Section 66-8-112(B) (hearing must ordinarily be set within thirty days after receipt of notice of revocation); Section 66-8-112(0 (hearing can be postponed no later than ninety days from date of notice of revocation). As we stated: “[T]he purpose of this speed is to protect the public by promptly removing from the highways those who drive while intoxicated. To make it possible for the MVD to conduct the numerous necessary hearings within the time constraints of the Implied Consent Act, the legislature could reasonably decide to limit the issues to be considered at such a hearing.” Bierner, 113 N.M. at 699, 831 P.2d at 998. We added, “[T]he legislature could properly decide that it did not want hearings prolonged by the testimony of experts and other witnesses that may be necessary to connect the blood alcohol test result with the licensee’s BAC at the time he or she was driving.” Id.
We would undermine the legislative purpose of conducting expedited hearings if we engrafted a sixth issue — whether a refusal to submit to a chemical test was cured by a later offer to submit — onto the five issues which the legislature stated to be the only ones to be considered at a license-revocation hearing. In particular, license-revocation proceedings should not be burdened by testimony relating to the extent to which Suazo’s BAC may have dropped during the two hours between his refusal to submit to a test and his later request for a test. This is just the sort of testimony excluded by our holding in Bierner. We should not allow cures of refusals when permitting such cures would complicate and delay license-revocation proceedings. As already mentioned, the courts that have permitted cures do not permit a driver to retract a refusal when honoring a request for a test would cause “substantial inconvenience or expense to the police.” Lund v. Hjelle, 224 N.W.2d at 557. An adverse effect on the administration of license-revocation proceedings should be just as much of a concern as an adverse impact on police operations. Therefore, I would reverse the district court’s reversal of the revocation of Suazo’s driver’s license. I would leave for another day the question of whether to allow an “almost immediate” retraction.