State v. CANDACE S.

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 15:24:34 2012.11.29
Certiorari Denied, February 13, 2012, No. 33,400

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-030

Filing Date: December 27, 2011

Docket No. 30,331

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

CANDACE S.,

Child-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
William C. Birdsall, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

FRY, Judge.

{1} Candace S., a minor at the relevant time, appeals the district court’s denial of her
motion to suppress the results of her field sobriety tests (FSTs) and breath alcohol tests. She
argues that FSTs are searches that must be supported by a warrant, an exception to the
warrant requirement, or voluntary consent. She further argues that the Children’s Code

1
required the officer investigating her traffic violation to advise her of her right to remain
silent and her right to withhold consent to the FSTs and the breath tests. Because the officer
did not so advise her, Candace maintains that her consent to the FSTs and breath tests was
involuntary.

{2} We conclude that FSTs must be supported by reasonable suspicion, that there is no
requirement for an officer to advise a minor of a right to withhold consent, and that failure
to advise a minor of a right to remain silent does not render FSTs inadmissible. We
therefore affirm the district court’s denial of Candace’s suppression motion.

BACKGROUND

{3} While on patrol in September 2009, Officer Brian Kinley observed a vehicle
swerving across the white line on the roadway and traveling at least ten miles under the
posted speed limit. He stopped the vehicle and made contact with Candace, who was driving
the car. He asked Candace for her driver’s license, and Candace said that she had left it at
home. He told the occupants that he smelled alcohol in the car, and a passenger said that she
had been drinking. Officer Kinley asked Candace to step out of the car and noticed that
Candace smelled of alcohol and that she was weaving as she walked away from the car.
Officer Kinley asked Candace if she had been drinking, and she said that she had not. He
asked her again after he administered an FST, and she said that she had had “one can.”

{4} Officer Kinley administered additional FSTs, during which Candace swayed,
stumbled, and failed to follow directions. Officer Kinley asked Candace if she wanted to
take a portable breath test and, without waiting for an answer, instructed her how to provide
a breath sample. The portable breath test yielded a result of .153. Officer Kinley estimated
that the time from contacting Candace in her car to her arrest was about five minutes. He
then transported Candace to the New Mexico State Police office, where he obtained two
breath samples from the Intoxilyzer testing machine, which registered .14 and .16. Officer
Kinley did not advise Candace of her right to remain silent prior to this time.

{5} The State filed a delinquency petition against Candace alleging that she drove while
under the influence of intoxicating liquor (DWI), failed to maintain her traffic lane, and
drove without a valid license. Candace’s attorney filed a motion to suppress all statements
made by Candace and the results of the FSTs and the breath tests. As grounds for the
motion, Candace asserted that the New Mexico Constitution and NMSA 1978, Section 32A-
2-14 (2009), of the Children’s Code provide broad protections to children during police
questioning and that, as a result, Candace’s unwarned statements to Officer Kinley should
be suppressed. In addition, Candace argued that the greater protections provided by Article
II, Section 10 of the New Mexico Constitution and by State v. Javier M., 2001-NMSC-030,
131 N.M. 1, 33 P.3d 1, compelled the suppression of the FSTs and breath tests because
Candace’s consent to the tests was not voluntary.

2
{6} In its response to the suppression motion, the State agreed that “any statements of
[Candace] made in response to Officer Kinley’s questioning should be suppressed.”
However, the State opposed suppression of the FST and breath test results. Following an
evidentiary hearing, the district court suppressed all statements made by Candace, whether
in response to Officer Kinley’s questions or volunteered, but it further determined that the
FST and Intoxilyzer breath test results were admissible. Candace entered a conditional plea
admitting to the allegations in the delinquency petition while reserving her right to appeal
the denial of her suppression motion. This appeal followed.

DISCUSSION

{7} Candace makes one overarching argument with several sub-parts. Her general
argument is that the district court should have suppressed the FST and breath test results
because Officer Kinley’s failure to advise her of her right to remain silent and of her right
to refuse the testing rendered her consent to the tests involuntary and invalid. In support of
this argument, Candace further argues that: (1) FSTs violate the right against self-
incrimination under Article II, Section 15 of the New Mexico Constitution; (2) FSTs
constitute a search and, under Section 32A-2-14 and the holding of Javier M., Candace
should have been advised of her right to refuse consent before being asked to perform FSTs;
and (3) Candace’s consent to the breath tests was involuntary.

Standard of Review

{8} The same standard of review applies to all of Candace’s arguments. “In reviewing
an order of suppression, we defer to the district court’s findings of fact that are supported by
substantial evidence, and we review the district court’s application of the law to the facts de
novo.” State v. Randy J., 2011-NMCA-105, ¶ 10, 150 N.M. 683, 265 P.3d 734, cert. denied,
2011- NMCERT- 009, 269 P.3d 903. In the present case, the facts are undisputed, so we
review the district court’s order to determine whether it was correct as a matter of law. See
id. In addition, we review the district court’s interpretation of Section 32A-2-14 de novo.
Id.

Article II, Section 15 of the New Mexico Constitution and the Right Against Self-
Incrimination

{9} Candace argues that the FSTs violated her right against self-incrimination, which is
guaranteed by Article II, Section 15 of the New Mexico Constitution, and that Article II,
Section 15 provides broader protections than the Fifth Amendment to the United States
Constitution. We agree with the State that Candace failed to preserve this argument.

{10} Our Supreme Court recently clarified what is required in order to preserve an
argument that the state constitution provides greater protection than the federal constitution
in State v. Leyva, 2011-NMSC-009, ¶ 49, 149 N.M. 435, 250 P.3d 861. The Court stated:

3
 Where a state constitutional provision has previously been interpreted more
expansively than its federal counterpart, trial counsel must develop the
necessary factual base and raise the applicable constitutional provision in
trial court. Where the provision has never before been addressed under our
interstitial analysis, trial counsel additionally must argue that the state
constitutional provision should provide greater protection, and suggest
reasons as to why, for example, a flawed federal analysis, structural
differences between state and federal government, or distinctive state
characteristics.

Id. (internal quotation marks and citation omitted). In the present case, Candace
acknowledges that Article II, Section 15 has never been addressed under our interstitial
analysis because, as she notes, it “has been interpreted in lock step with the Fifth
Amendment.” Yet she failed in the district court to suggest reasons why the provision
should be interpreted as providing greater protection than the federal constitution. Indeed,
in the district court, the only mention of Article II, Section 15 was Candace’s statement in
her written suppression motion that she “relie[d] upon the New Mexico Constitution, Article
2 [sic], Sections 14, 15, and 18 . . . to support the proposition that children in New Mexico
are provided broader and greater protections during police questioning than are provided to
children . . . under the United States Constitution.” She did not elaborate on this conclusory
statement in either her written motion or her argument at the hearing on her motion.

{11} Even if Candace had properly preserved her argument, our decision in Randy J.
disposes of her contentions. In that case, we concluded that a child’s performance during
FSTs is not a testimonial communication subject to suppression under the Fifth
Amendment’s privilege against self-incrimination or in accordance with the protections
provided by Section 32A-2-14(D) of the Children’s Code. Randy J., 2011-NMCA-105, ¶¶
14, 17-18. Because our courts have never interpreted Article II, Section 15 differently from
Fifth Amendment case law, the same holding would apply in the present case.

Prerequisite to Performance of FSTs

{12} Candace argues that FSTs are searches implicating constitutional protections and that
they cannot be undertaken without establishing an exception to the warrant requirement or
voluntary consent. Apparently assuming that there were no warrant exceptions established,
Candace then contends that, consistent with Section 32A-2-14 and Javier M., a child must
be told that consent to FSTs may be withheld. She further maintains that because Officer
Kinley did not tell her this, any consent she may have given was involuntary.

{13} We begin by considering Candace’s argument that FSTs constitute a search with
constitutional ramifications. Candace summarizes cases from other jurisdictions holding that
FSTs constitute searches and notes that some of these jurisdictions require a showing of
probable cause while some require only reasonable suspicion to justify FSTs. See, e.g.,
People v. Carlson, 677 P.2d 310, 316-18 (Colo. 1984) (en banc) (holding that FSTs

4
constitute searches that must be supported by probable cause); Blasi v. State, 893 A.2d 1152,
1164, 1168 (Md. Ct. Spec. App. 2006) (holding that FSTs constitute a search subject to a
showing of reasonable suspicion). Other cases hold that FSTs constitute an expansion of an
investigatory detention, rather than a search, and that they require the articulation of
reasonable suspicion to justify the expansion. See, e.g., State v. Little, 468 A.2d 615, 617-18
(Me. 1983) (determining that FSTs are part of an investigatory stop that must be based on
reasonable suspicion); State v. Gray, 552 A.2d 1190, 1194-95 (Vt. 1988) (same).

{14} We need not decide whether FSTs constitute a search or an expansion of an
investigatory detention. Regardless of how they are labeled, FSTs implicate constitutional
protections under the Fourth Amendment to the United States Constitution and Article II,
Section 10 of the New Mexico Constitution. Candace focuses on Article II, Section 10 and,
as a result, we limit our analysis to that constitutional provision.

{15} Our Supreme Court’s decision in Leyva provides the framework for our discussion.
Although that case involved an officer’s expansion of an investigatory detention with
questioning unrelated to the initial traffic stop, the analysis is applicable to any search or
seizure conducted in connection with any investigatory detention. 2011-NMSC-009, ¶¶ 4-5,
10. In Leyva, the Court reassessed its decision in State v. Duran, 2005-NMSC-034, 138
N.M. 414, 120 P.3d 836, and concluded that Duran no longer represented proper Fourth
Amendment analysis in light of recent United States Supreme Court precedent. However,
the Court further determined that the Duran analysis continues to be proper when a court
assesses searches and seizures under Article II, Section 10. Leyva, 2011-NMSC-009, ¶¶ 2-3.

{16} Duran considered when an officer’s questions about travel plans during a traffic stop
are reasonable under the Fourth Amendment. Leyva, 2011-NMSC-009, ¶ 11. The Duran
Court applied the two-part test first set out in Terry v. Ohio, 392 U.S. 1 (1968), for
determining the propriety of a detention expansion. Leyva, 2011-NMSC-009, ¶ 11. The
Terry test considers “[(1)] whether the officer’s action was justified at its inception, and [(2)]
whether it was reasonably related in scope to the circumstances which justified the
interference in the first place.” 392 U.S. at 20.

{17} The Court in Leyva determined that the Terry-type test had been replaced in Fourth
Amendment jurisprudence with a bright-line test holding that if the initial stop was lawful,
officers may ask questions unrelated to the initial reason for the stop “so long as they do not
measurably extend the length of the stop.” Leyva, 2011-NMSC-009, ¶ 15 (internal quotation
marks and citation omitted). However, in considering the propriety of a similar expansion
of a traffic stop under the New Mexico Constitution, Leyva held that the two-part Terry test
should still be utilized. Leyva, 2011-NMSC-009, ¶ 55 (stating that “Duran’s two-part
analysis, adhering to the scope and duration requirements set forth in Terry, best protects the
right against unreasonable searches and seizures under Article II, Section 10 of the New
Mexico Constitution”). The Court concluded that “[t]he overall reasonableness of the stop
continues to be determined [under the New Mexico Constitution] by balancing the public
interest in the enforcement of traffic laws against an individual’s right to liberty, privacy, and

5
freedom from arbitrary police interference.” Leyva, 2011-NMSC-009, ¶ 55 (internal
quotation marks and citation omitted).

{18} Applying this analysis to FSTs, we hold that an officer may administer FSTs if the
officer has developed independent reasonable suspicion that would support the extension of
the traffic stop to conduct the FSTs. There is a “compelling public interest in eradicating
DWI occurrences and the potentially deadly consequences” of that crime. City of Santa Fe
v. Martinez, 2010-NMSC-033, ¶ 13, 148 N.M. 708, 242 P.3d 275. In accordance with
Leyva, we must weigh this compelling interest against the intrusion of FSTs that assess the
physical performance of a suspected drunk driver. In our estimation, such an intrusion is
warranted if the investigating officer has reasonable, articulable facts upon which to base a
suspicion that the driver in question may be impaired. See State v. Williamson, 2000-
NMCA-068, ¶¶ 8, 9, 129 N.M. 387, 9 P.3d 70 (explaining that an officer may expand an
investigatory detention related to a traffic stop if the officer “has a reasonable and articulable
suspicion that the driver is impaired” and that the administration of FSTs may reasonably
be a part of this investigation); see also Randy J., 2011-NMCA-105, ¶¶ 33-34 (holding that,
under Article II, Section 10, the officer had reasonable suspicion to expand a traffic stop into
an investigation of the possibility that the minor driver had been driving while impaired).

{19} We find support for our determination in cases from other jurisdictions that have
reached a similar conclusion. For example, in State v. Superior Court, 718 P.2d 171, 176
(Ariz. 1986) (in banc), the Arizona Supreme Court weighed the intrusion of FSTs against
the public’s interest in removing drunk drivers from the state’s highways. Consistent with
Terry, which involved an officer conducting a pat-down search based on reasonable
suspicion that the suspect might be armed, see 392 U.S. at 6-7, the Arizona court concluded
that “the threat to public safety posed by a person driving under the influence of alcohol is
as great as the threat posed by a person illegally concealing a gun.” Superior Court, 718
P.2d at 176. Similarly, the Vermont Supreme Court balanced the intrusion of FSTs against
law enforcement interests and determined that the “minimal level of intrusion” of FSTs is
“clearly outweighed by the strong law enforcement interest in attempting to keep a suspected
drunk driver off the roads.” Gray, 552 A.2d at 1195; see Little, 468 A.2d at 617-18 (holding
that FSTs may be conducted if they are supported by reasonable suspicion); State v. Royer,
753 N.W.2d 333, 340 (Neb. 2008) (same); People v. Walter, 872 N.E.2d 104, 114 (Ill. App.
Ct. 2007) (same).

{20} Given our disposition of this issue, we reject one premise underlying Candace’s
argument—that administration of FSTs must be supported by a warrant, an exception to the
warrant requirement, or valid consent. Instead, an officer may administer FSTs if the officer
has reasonable suspicion that a driver was driving impaired. We turn now to Candace’s
argument that she was entitled to additional protections due to her status as a minor.

Application of Section 32A-2-14 to FSTs

6
{21} Candace relies on Section 32A-2-14 to argue that Officer Kinley was required to
advise her of her right to remain silent and of her right to refuse consent to the FSTs.
Because Officer Kinley did not give Candace these warnings, she maintains that the district
court should have excluded the FST results from evidence.

{22} We begin our analysis with a review of the applicable provisions of Section 32A-2-
14. In relevant part, that statute provides:

A. A child subject to the provisions of the Delinquency Act is
entitled to the same basic rights as an adult, except as otherwise provided in
the Children’s Code, including rights provided by the Delinquency Act,
except as otherwise provided in the Children’s Code [NMSA 1978, §§ 32A-
1-1 to -21 (1993, as amended through 2009)].

....

C. No person subject to the provisions of the Delinquency Act
who is alleged or suspected of being a delinquent child shall be interrogated
or questioned without first advising the child of the child’s constitutional
rights and securing a knowing, intelligent and voluntary waiver.

D. Before any statement or confession may be introduced at a
trial or hearing when a child is alleged to be a delinquent child, the state shall
prove that the statement of confession offered in evidence was elicited only
after a knowing, intelligent and voluntary waiver of the child’s constitutional
rights was obtained.

These provisions require that any child subject to an investigatory detention be advised of
his or her “right to remain silent and that anything they say can be used against [the child].”
Javier M., 2001-NMSC-030, ¶ 41. In addition, under Section 32A-2-14(D), if a child is not
so advised, “any statement or confession obtained as a result of the detention or seizure is
inadmissible in any delinquency proceeding.” Javier M., 2001-NMSC-030, ¶ 1. The State
does not dispute that Candace was subject to an investigatory detention when Officer Kinley
stopped her car and that he failed to advise her of the rights specified in Javier M.

{23} Candace contends that, consistent with Section 32A-2-14 and Javier M., any child
subject to an investigatory detention must also be advised that he or she has the right to deny
consent to the performance of FSTs. She argues that a request to perform FSTs is a question
like any other and, as a result, if a child is not advised of his or her right to decline the
request and/or if the state fails to prove that the child’s consent was voluntary, the results of
the FSTs are inadmissible.

{24} Candace’s argument boils down to the contention that the holding in Javier M.
should be expanded. She maintains that, in addition to advising a child of the right to remain

7
silent and of the fact that anything said can be used against the child, an officer detaining a
child must also advise the child of the right to withhold consent to FSTs.

{25} Our Supreme Court’s decision in Javier M. does not support Candace’s contention.
In that case, the Court interpreted Section 32A-2-14(C) as requiring that “children who are
subject to investigatory detentions are statutorily entitled only to be warned of their right to
remain silent and that anything they say can be used against them.” Javier M., 2001-NMSC-
030, ¶ 41 (emphasis added). Thus, we do not read Javier M. as requiring any additional
warnings to a child, such as a warning that the child need not consent to FSTs.

{26} In addition, the Court in Javier M. made it clear that Section 32A-2-14 “only protects
against a child’s statements which are made during an investigatory detention in response
to a police officer’s questioning.” Javier M., 2001-NMSC-030, ¶ 40 (emphasis added). It
is also clear that a child’s “lack of muscular coordination during the [FSTs] is not a
statement subject to suppression under Section 32A-2-14(D).” Randy J., 2011-NMCA-105,
¶ 18. Because Section 32A-2-14 was narrowly drawn to protect a child’s statements and
because a child’s physical conduct in an FST is not a statement, it follows that Section 32A-
2-14 does not require a police officer to advise a child that he or she may decline to perform
FSTs. Indeed, it may well be a disservice to a child to advise him or her in this way because
a refusal to perform FSTs may be admissible in evidence. See State v. Wright, 116 N.M.
832, 835-36, 867 P.2d 1214, 1217-18 (Ct. App. 1993) (holding that admission of evidence
that the defendant refused to take an FST did not violate the right to be free of self-
incrimination).

{27} Furthermore, the Court in Javier M. interpreted Section 32A-2-14 as a very narrowly
drawn statutory protection. The Court noted that Subsection (C) of the statute “is an
exception to Subsection (A)’s general recognition that children are entitled to the same basic
rights as adults.” Javier M., 2001-NMSC-030, ¶ 32 (internal quotation marks and citation
omitted). Thus, with the exception of this very limited statutory requirement to advise a
child of the right to remain silent and of the consequences of waiving that right, a child’s
constitutional rights are the same as an adult’s rights. See id. ¶ 42 (noting that “in enacting
Section 32A-2-14(C), the Legislature is providing juveniles with a separate statutory right,
not codifying a constitutional mandate”). Candace has not directed us to any authority
holding that an adult must be advised that he or she need not consent to FSTs, and we
conclude that there is no constitutional mandate requiring an officer to so inform either an
adult or a child. Cf. McKay v. Davis, 99 N.M. 29, 31, 653 P.2d 860, 862 (1982) (explaining
that “there is no constitutional right to refuse to take a chemical test” for the presence of
alcohol). We therefore reject Candace’s argument that the holding in Javier M. should be
expanded to require a child to be advised that consent to FSTs may be withheld.

Application of Holding to the Facts

8
{28} Having disposed of Candace’s arguments with respect to the FSTs, we apply our
determinations to the facts of this case. Officer Kinley had reasonable suspicion to
administer FSTs to Candace because he observed her erratic driving, smelled the odor of
alcohol on her person, and saw her sway as she walked to the back of her car. See State v.
Walters, 1997-NMCA-013, ¶ 26, 123 N.M. 88, 934 P.2d 282 (stating that an officer had
reasonable suspicion to investigate further when he detected the odor of alcohol). Officer
Kinley had no obligation to advise Candace of a right to refuse FSTs in order to administer
the FSTs. And, while Section 32A-2-14 required Officer Kinley to advise Candace of her
right to remain silent and of the consequences of her waiver of that right, his failure to
explain this to her did not render the FSTs inadmissible because her performance of the FSTs
did not constitute statements subject to suppression. Therefore, we affirm the district court’s
denial of Candace’s motion to suppress the results of the FSTs.

Admissibility of Breath Test Results

{29} Candace’s final argument is that Officer Kinley had to advise her of her right to
refuse the portable breath test. In support of this contention, she relies on the same
authorities and logic she relied on in arguing that Officer Kinley was required to advise her
of her right to withhold consent to the FSTs. For the same reasons that we rejected her
argument with respect to the FSTs, we also reject her argument regarding the portable breath
test.

{30} The district court stated that the results of the portable breath test would not be
admissible. However, Candace argues that the Intoxilyzer breath tests taken at the police
station after her arrest were “tainted by the earlier breath test which was a product of
involuntary consent.” We are not persuaded by this argument. Before Officer Kinley
transported Candace to the police station for the Intoxilyzer breath tests, he had probable
cause, even without the portable breath test, to arrest her for DWI in light of her performance
on the FSTs, her erratic driving, and the odor of alcohol. State v. Granillo-Macias,
2008-NMCA-021, ¶ 12, 143 N.M. 455, 176 P.3d 1187 (holding that “the smell of alcohol
emanating from [the d]efendant, [his] lack of balance at the vehicle, and the manner of [his]
performance of the FSTs” constituted probable cause to arrest him for DWI). As a result,
the Intoxilyzer breath test results obtained at the station were not rendered inadmissible by
anything that preceded them.

CONCLUSION

{31} For the foregoing reasons, we affirm the district court’s order denying Candace’s
motion to suppress the results of the FSTs and the Intoxilyzer breath tests.

{32} IT IS SO ORDERED.

CYNTHIA A. FRY, Judge

9
WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

LINDA M. VANZI, Judge

Topic Index for State v. Candace S., No. 30,331

AE APPEAL AND ERROR
AE-PA Preservation of Issues for Appeal
AE-SR Standard of Review

CD CHILDREN
CD-CC Children’s Code

CL CRIMINAL LAW
CL-DG Driving While Intoxicated

CA CRIMINAL PROCEDURE
CA-MW Miranda Warnings
CA-MR Motion to Suppress
CA-RS Reasonable Suspicion
CA-WS Warrantless Search

CT CONSTITUTIONAL LAW
CT-DP Due Process
CT-FA Fourth Amendment
CT-IT Interstitial Analysis
CT-MW Miranda Warnings
CT-SL Self-incrimination
CT-SU Suppression of Evidence

EV EVIDENCE
EV-BT Blood/Breath Tests

10