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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 11:33:03 2011.05.13
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMCA-042
Filing Date: March 22, 2011
Docket No. 30,190
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BERTHA GURULE,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Kenneth Martinez, District Judge
Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
Joel Jacobsen, Assistant Attorney General
Santa Fe, NM
for Appellee
Jeff Romero
Albuquerque, NM
for Appellant
OPINION
WECHSLER, Judge.
{1} Defendant Bertha Gurule appeals her conviction for driving under the influence of
intoxicating liquor (DWI), contrary to NMSA 1978, Section 66-8-102(A) (2005) (amended
2010), under the impaired to the slightest degree standard. We consider Defendant’s
arguments that (1) DWI, contrary to Subsection (A), is not a strict liability crime; (2) even
if DWI contrary to Subsection (A) is a strict liability crime, an involuntary intoxication
defense is nonetheless available; and (3) there was insufficient evidence that Defendant was
under the influence of over-the-counter cold medication. We hold that DWI, contrary to
1
Subsection (A), is a strict liability crime and, as a result, an involuntary intoxication defense
is not available. We therefore do not reach Defendant’s sufficiency of the evidence
argument. Accordingly, we affirm Defendant’s conviction.
BACKGROUND
{2} On the morning of March 7, 2007, Defendant began to feel ill with either a cold or
the flu while at work. Her symptoms appeared to worsen throughout the day and, at 1:45
p.m., her manager sent her home. She informed her manager that she had a doctor’s
appointment the next day at 9:00 or 10:00 a.m. and would not be available to work. The next
day, March 8, at around 6:00 p.m., Defendant visited her mother and two sisters, Rosa and
Connie, at her mother’s home. Defendant still exhibited signs of illness and laid down on
her mother’s couch. At some point, Rosa told Defendant to go outside and get some fresh
air.
{3} While Defendant was outside, Rosa made “tea” for Defendant to clear up her chest
congestion and sinuses. The “tea” was a “hot toddy,” which Rosa made from water, lime
juice, lime, honey, oregano, and more than one shot of bourbon. Defendant consumed the
tea and testified that she was unaware that it contained alcohol and could not taste the
alcohol. Defendant also testified that she took cold medication shortly after drinking the tea.
{4} After Defendant consumed the tea, Connie received a phone call from her daughter
informing her that Connie’s granddaughter was in the hospital. Defendant drove Connie to
the hospital between 7:30 and 8:00 p.m. While Defendant was returning home from the
hospital, Officer Steve Hindi observed that Defendant was speeding and that she failed to
maintain her lane. As a result, Officer Hindi initiated a traffic stop of Defendant. Defendant
told Officer Hindi that she did not consume alcohol. Officer Bret White took over the
investigation and observed that Defendant had bloodshot, watery eyes and a strong odor of
alcohol. Defendant told Officer White that the alcohol odor was from a spray that she was
using to treat her sore throat. After administering field sobriety tests, which Defendant
failed, Officer White arrested Defendant for driving under the influence of intoxicating
liquor.
{5} After a bench trial, the metropolitan court found Defendant guilty of DWI, contrary
to Subsection (A), under the impaired to the slightest degree standard. In finding Defendant
guilty, the metropolitan court held that DWI under Subsection (A) is a strict liability crime.
The metropolitan court also rejected Defendant’s tendered jury instruction on involuntary
intoxication, UJI 14-5106 NMRA, finding that since DWI is a strict liability crime,
involuntary intoxication is inapplicable as a defense. Defendant appealed to the district
court, arguing that the metropolitan court erred in (1) holding that involuntary intoxication
is not a valid defense to DWI, and (2) finding that Defendant was under the influence of
over-the-counter cold medication. The district court affirmed Defendant’s convictions.
Defendant filed a timely appeal to this Court.
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STRICT LIABILITY
{6} Defendant argues that the crime of DWI under Subsection (A) requires the general
criminal intent to assume the risk of possible intoxication and that therefore the metropolitan
court erred in finding that it is a strict liability crime. Whether conviction under Subsection
(A) requires a showing of intent is a question of statutory construction and is, therefore, a
legal determination that we review de novo. See State v. Rowell, 121 N.M. 111, 114, 908
P.2d 1379, 1382 (1995) (holding that statutory construction is a strictly legal determination
that is reviewed de novo). “The standard for determining whether a statute is a strict liability
statute involves ascertaining whether there is a clear legislative intent that the act does not
require any degree of mens rea.” State v. Harrison, 115 N.M. 73, 77, 846 P.2d 1082, 1086
(Ct. App. 1992).
{7} Subsection (A) provides that “[i]t is unlawful for a person who is under the influence
of intoxicating liquor to drive a vehicle within this state.” In order to convict under
Subsection (A), a court must find that the defendant “was less able to the slightest degree,
either mentally or physically, or both, to exercise the clear judgment and steady hand
necessary to handle a vehicle with safety to the driver and the public” as a result of drinking
the liquor. State v. Pickett, 2009-NMCA-077, ¶ 1, 146 N.M. 655, 213 P.3d 805 (alteration
omitted) (internal quotation marks and citation omitted), cert. denied, 2009-NMCERT-006,
146 N.M. 734, 215 P.3d 43. This standard is known as the “impaired to the slightest degree”
standard. Id. ¶ 6 (internal quotation marks and citation omitted). The metropolitan court
found Defendant guilty of violating the impaired to the slightest degree standard under
Subsection (A) as opposed to the per se standard of Subsection (C). Under the per se
standard of Subsection (C), it is unlawful to drive with a blood alcohol content (BAC) of .08
or more, regardless of whether impaired driving was shown. Pickett, 2009-NMCA-077, ¶
6.
{8} Defendant primarily argues that this Court, in State v. Dutchover, 85 N.M. 72, 509
P.2d 264 (Ct. App. 1973), held that DWI, under the impaired to the slightest degree standard,
requires the defendant to assume the risk of intoxication in order to convict and, therefore,
the metropolitan court erred in finding that DWI is a strict liability crime in this case. In
Dutchover, the defendant was convicted of vehicular homicide and admitted that he was
intoxicated. Id. at 73-74, 509 P.2d at 265-266. The defendant’s argument was that the state
failed to prove the requisite criminal intent for vehicular homicide, not DWI. Id. at 75, 509
P.2d at 267. This Court held that (1) the voluntary act of becoming under the influence,
combined with (2) the voluntary act of driving, was malum in se and, therefore, was
sufficient to satisfy the criminal intent element necessary for conviction for vehicular
homicide. See id. Dutchover did not require this Court to determine whether criminal intent
was necessary for conviction of DWI under the impaired to the slightest degree standard.
{9} While this Court has not addressed whether DWI under the impaired to the slightest
degree standard of Subsection (A) is a strict liability crime, we have previously held that a
violation of the per se standard of Subsection (C) is a strict liability crime. See Harrison,
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115 N.M. at 78, 846 P.2d at 1087. In Harrison, the defendant was found unconscious behind
the wheel of his vehicle. Id. at 75, 846 P.2d at 1084. He submitted to breath alcohol tests,
which produced BAC readings of .17 and .15. Id. The district court subsequently convicted
the defendant of a per se violation of Subsection (C) based on the BAC readings. Id. In his
appeal, the defendant argued that because he was found unconscious, the state failed to prove
that he intended to drive his car and, therefore, there was insufficient evidence to sustain his
conviction. Id. at 76-77, 846 P.2d at 1085-86. Rejecting the defendant’s argument, this
Court held that “the criminal offense of DWI, [under Section 66-8-102(A), (C)], is a strict
liability crime.” Harrison, 115 N.M. at 74, 846 P.2d at 1083. This Court reasoned that the
plain meaning of Section 66-8-102, which does not contain language requiring a mens rea,
and the overriding compelling public interest in deterring individuals from driving while
intoxicated, demonstrated legislative intent that DWI is a strict liability crime. Harrison,
115 N.M. at 77, 846 P.2d at 1086.
{10} Defendant attempts to distinguish Harrison on two grounds: (1) Harrison did not
specifically address a violation of the impaired to the slightest degree standard of Subsection
(A); and (2) Defendant’s argument as to intent in this case is that she did not voluntarily
become intoxicated, whereas, in Harrison, the defendant argued that he lacked the intent to
drive. We disagree and conclude that the rationale and the holding set forth in Harrison that
DWI is a strict liability crime also applies to charges brought under Subsection (A) and the
impaired to the slightest degree standard.
{11} First, this Court in Harrison examined the language of Section 66-8-102 in its
entirety, including Subsection (A), in reaching the conclusion that the plain meaning of
Subsection (C) dictates that DWI is a strict liability crime. Harrison, 115 N.M. at 77, 846
P.2d at 1086. We noted that the language of the entirety of Section 66-8-102, not just
Subsection (C), “makes absolutely no reference whatsoever to a required intent on the part
of an accused.” Harrison, 115 N.M. at 77, 846 P.2d at 1086. Indeed, Subsection (A)
provides only that “[i]t is unlawful for a person who is under the influence of intoxicating
liquor to drive a vehicle within this state.” Therefore, regardless of whether a defendant is
ultimately convicted of a per se violation or under the impaired to the slightest degree
standard, the plain meaning of Section 66-2-108 “clearly provides that the only thing
necessary to convict a person of DWI is proof that the defendant was driving a vehicle either
under the influence of intoxicating liquor or while he had a certain percentage of alcohol in
his blood.” Harrison, 115 N.M. at 77, 846 P.2d at 1086; see State v. Willie, 2009-NMSC-
037, ¶ 9, 146 N.M. 481, 212 P.3d 369 (“The principal command of statutory construction is
that the court should determine and effectuate the intent of the [L]egislature, using the plain
language of the statute as the primary indicator of legislative intent.” (alteration omitted)
(internal quotation marks and citation omitted)).
{12} Additionally, as a rule of statutory construction, we read all provisions of a statute
and all statutes in pari materia together in order to ascertain the legislative intent. Roth v.
Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992). We therefore consider whether
intent is required for conviction under the impaired to the slightest degree provision of
4
Subsection (A) using the per se standard of Subsection (C) as a guide. See Valdez v. Vigil,
2007-NMCA-031, ¶ 11, 141 N.M. 316, 154 P.3d 691 (holding that the interpretation of a
subsection of a statute should not be read in isolation but, instead, legislative intent is
“informed by consideration of” the entire statute). Subsections (A) and (C) respectively
provide that “[i]t is unlawful for” a defendant to drive a vehicle while under the influence
of intoxicating liquor or while having a blood alcohol concentration of above .08 percent.
Neither subsection contains an intent element. Considering that both subsections begin with
identical language and lack an intent element, it would be inconsistent to require the State
to prove intent with regard to convictions under Subsection (A) in light of our prior
determination that Subsection (C) is a strict liability crime.
{13} Lastly, the Harrison Court rationalized that there is compelling public interest in
deterring individuals from driving while intoxicated to a degree that it overrides the
individual interest that intent be required for conviction. 115 N.M. at 77, 846 P.2d at 1086.
Specifically, we noted that “innocent individuals are oftentimes injured or killed, and their
families and loved ones made to suffer [and, therefore, the potential harm of DWI is] much
greater than if only the irresponsible person who drove while intoxicated was put in danger.”
Id. As a result, we stated that “the [L]egislature recognized this significant public interest
and potential harm when it drafted Section 66-8-102” and, therefore, it strengthened our
conclusion that DWI under Subsection (C) is a strict liability crime. Harrison, 115 N.M. at
77, 846 P.2d at 1086. The interest in deterring individuals from driving while intoxicated
is furthered by DWI being a strict liability crime, regardless of whether the per se or
impaired to the slightest degree standard is used to determine the guilt or innocence of the
accused. Accordingly, when we read Section 66-8-102 in view of legislative intent, DWI
under Subsection (A) and the impaired to the slightest degree standard is a strict liability
crime. We next turn to whether involuntary intoxication is nonetheless a valid defense.
INVOLUNTARY INTOXICATION DEFENSE
{14} Defendant argues that the district court erred in not considering involuntary
intoxication as a defense to DWI, even assuming that DWI under Subsection (A) is a strict
liability crime. We initially note that the parties point out that there is a split of authority
among the states as to whether involuntary intoxication is a valid defense to strict liability
DWI. Compare, e.g., New Jersey v. Hammond, 571 A.2d 942, 948 (N.J. 1990) (holding that
involuntary intoxication is not a defense to the state DWI statute), with Carter v. Florida,
710 So. 2d 110, 113 (Fla. Dist. Ct. App. 1998) (holding that an involuntary intoxication jury
instruction should have been given to the jury, even though the state DWI statute was
construed as a strict liability crime).
{15} Defendant points out that this Court, in State v. Rios, 1999-NMCA-069, ¶ 1, 127
N.M. 334, 980 P.2d 1068, held that duress is a defense to strict liability DWI and argues that
it would be inconsistent to not allow involuntary intoxication as a defense. Indeed, this
Court held that common law duress is applicable to DWI. However, there are significant
5
differences between the defenses of duress and involuntary intoxication that support a
different application in the strict liability context.
{16} In New Mexico, duress consists of three elements: (1) the defendant committed the
crime under threat, (2) the defendant feared immediate bodily harm to himself or others if
he failed to commit the crime, and (3) a reasonable person in the defendant’s position would
have acted in the same way under the circumstances. Id. ¶ 7. “A defendant pleading duress
is not attempting to disprove a requisite mental state” and is, instead, attempting excusal
“from criminal liability because of the circumstances surrounding their intentional act.” Id.
¶ 12. “[D]uress does not negate the mental state or volitional act, but instead justifies the
intended criminal act[.]” Id.
{17} In contrast, involuntary intoxication is a defense only when it negates the intent
element of a crime. See State v. Lovato, 110 N.M. 146, 147, 793 P.2d 276, 277 (Ct. App.
1990) (“A showing of intoxication is a defense to a specific intent crime where the
intoxication is to such a degree as would negate the possibility of the necessary intent.”); cf.
State v. Campos, 1996-NMSC-043, ¶ 62, 122 N.M. 148, 921 P.2d 1266 (Franchini, J.,
dissenting) (“The only rationale for allowing involuntary intoxication as a defense at all is
because intoxication in fact may negate the malice for murder.”). UJI 14-5106, the jury
instruction tendered to the metropolitan court by Defendant, provides the requirements for
raising the defense of involuntary intoxication. UJI 14-5106 applies when “[e]vidence has
been presented that the defendant was intoxicated but that the intoxication was involuntary.”
UJI 14-5106 (Use Note 1) provides:
If this instruction is given, add to the essential elements instruction
for the offense charged:
The defendant was not involuntarily intoxicated at the time the
offense was committed or, if defendant was involuntarily intoxicated, the
defendant nonetheless:
knew what [he] [she] was doing or understood the consequences of [his] [her]
act, knew that [his] [her] act was wrong and could have prevented [himself]
[herself] from committing the act.
As Use Note 1 confirms, involuntary intoxication is only a defense in New Mexico when the
defendant’s intent to commit the criminal act is negated by the intoxication to the extent that
the defendant did not understand the consequences of the action or did not know the act was
wrong and could not have prevented the act.
{18} Examining the differences between the justifications for duress and involuntary
intoxication, it follows that duress can be a defense to a strict liability crime while
involuntary intoxication cannot. Strict liability crimes, by definition, do not require criminal
intent. See State v. Torres, 2003-NMCA-101, ¶ 7, 134 N.M. 194, 75 P.3d 410; see also
6
Black’s Law Dictionary 429 (9th ed. 2009) (defining a strict liability crime as a “crime that
does not require a mens rea element”). Involuntary intoxication is only a defense “to the
extent that it impairs the ability to form intent.” Morales v. Mitchell, 507 F.3d 916, 938 (6th
Cir. 2007). As such, it would be illogical to allow an involuntary intoxication defense to a
strict liability crime because the mental state of the defendant is irrelevant for conviction.
Therefore, involuntary intoxication is not a defense to a strict liability crime because it is
irrelevant in the strict liability context as to whether the defendant had intent to commit the
prescribed act. See State v. Lucero, 98 N.M. 204, 206, 647 P.2d 406, 408 (1982) (“[T]he
sole question for the jury in a strict liability offense is whether [it] believes the defendant
committed the act prescribed by the statute. If it finds that the defendant did commit the act,
then the jury is obliged to bring a guilty verdict.”).
{19} Duress, on the other hand, is available as a defense when the defendant committed
the prescribed act, with the requisite intent, in order to “avoid[] a harm of greater
magnitude.” Rios, 1999-NMCA-069, ¶ 12 (internal quotation marks and citation omitted).
The defendant, making a duress defense, does not argue lack of intent because of duress and,
instead, essentially concedes the commission of the prescribed act with the requisite intent,
but argues that the act was justified. Therefore, because duress is not based on the principle
that a defendant’s intent is negated, it does not contain the same logical fallacy as an
involuntary intoxication defense in the strict liability context. The metropolitan court,
therefore, did not err by holding that involuntary intoxication is not available as a defense
to the strict liability crime of DWI under Subsection (A).
CONCLUSION
{20} We hold that DWI, contrary to Section 66-8-102(A), is a strict liability crime and,
as a result, an involuntary intoxication defense is not available. We therefore affirm.
{21} IT IS SO ORDERED.
____________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
____________________________________
CELIA FOY CASTILLO, Chief Judge
____________________________________
LINDA M. VANZI, Judge
Topic Index for State v. Gurule, Docket No. 30,190
CL CRIMINAL LAW
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CL-DG Driving While Intoxicated
CL-DS Duress
CL-IX Intoxication
CL-SR Strict Liability
ST STATUTES
ST-IP Interpretation
ST-RC Rules of Construction
8