concurring in part, dissenting in part.
72. I respectfully dissent because I believe the trial court’s decision to grant a change of venue from Taos County was in accordance with law and amply supported by substantial evidence. In concluding that voir dire of a third venire in Taos County was a prerequisite to a change of venue, the majority attempts to eclipse all the other indicators of local prejudice and public excitement that were abundant in the record before the trial court. In doing so, the majority has stepped outside the permissible bounds of appellate review by independently weighing the evidence and substituting its own judgement for that of the trial court.
73. My discussion is limited to the issue of whether the trial court erred by moving Defendant’s third trial from Taos County because of public excitement or local prejudice. My analysis of this issue focuses on the standard of appellate review, the necessity of conducting additional voir dire of prospective jurors, and the sufficiency of the evidence regarding local prejudice and public excitement in Taos County.
74. I concur in the affirmance of Defendant’s conviction and sentence for driving while intoxicated (DWI). Although I disagree that a remand is required because of the change of venue from Taos County, I ágree that the trial court did not err in denying Defendant’s motion to dismiss, in admitting Defendant’s blood-alcohol test results into evidence, and in enhancing Defendant’s sentences based on a prior misdemeanor DWI conviction. I do not address the merits of Defendant’s constitutional challenges to the district court’s selection of Dona Ana County as the new venue for the third trial because the majority bases it holding solely on the issue of the change of venue from Taos County.
A. Standard of Appellate Review
75. In New Mexico, as in the majority of other states, “granting or denying a motion for a change of venue is within the sound discretion of the trial court,” and an appellate court will not disturb the trial court’s ruling absent an abuse of this discretion. State v. Hernandez, 115 N.M. 6, 21, 846 P.2d 312, 327 (1993); see also NMSA 1978, § 38-3-6 (1880) (second change of venue may be granted at court’s discretion); 21 Am.Jur.2d Criminal Law §§ 389, at 643-44; 391, at 657-58 (1981) (appellate court will reverse trial court’s venue ruling only where an abuse of discretion plainly appears). I agree with the majority that this is the standard of review to be applied in this case. I view the majority opinion as departing from the application of this standard and, instead, applying a higher level of scrutiny in which it independently weighs the evidence and substitutes its own judgment for that of the trial court. The application of such heightened scrutiny is inconsistent with an appellate court’s limited role of determining whether the trial court abused its discretion.
76. One reason that appellate courts apply this deferential standard of review to ehange-of-venue issues is that “the question is largely one of fact and therefore one peculiarly within the province of the trial judge ____”21 Am. Jur.2d Criminal Law § 391, at 659; see also State v. Ferguson, 111 N.M. 191, 193, 803 P.2d 676, 678 (Ct.App.1990) (matters are committed to trial court’s discretion because trial court is thought to be in better position than appellate judges to decide them). “[T]he process of determining whether or not the facts necessary for a change of venue exist is the same as that followed in determining any other fact in a ease.” McCauley v. Ray, 80 N.M. 171, 174, 453 P.2d 192, 195 (1968) (citing State v. Nabors, 32 N.M. 453, 259 P. 616 (1927)). Thus, when the trial court’s factual findings regarding the grounds for a change of venue are reviewed on appeal, the question is whether there was substantial evidence to support those findings. Id. An appellate court does not reweigh the evidence.
B. Necessity of Voir Dire
77. The majority faults the trial court for granting a change of venue without first conducting voir dire of prospective jurors during jury selection for a third trial in Taos County. I do not agree that voir dire is the only reliable evidence of “public excitement or local prejudice” under NMSA 1978, § 38-3-3(A)(2)(c) (1965). Moreover, I do not believe that a test which employs a rigid distinction between “actual” and “presumptive” prejudice provides the correct legal standard for evaluating such evidence in this case.
78. The majority derives its analysis of the standard of proof from Rideau v. Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417, 1420, 10 L.Ed.2d 663 (1963), a case in which the United States Supreme Court disregarded a trial court’s factual findings in ruling that the denial of the defendant’s motion to change venue violated the Due Process Clause. Rideau has been interpreted by some courts as establishing a two-step test for determining whether grounds for a change of venue based on pretrial publicity are present. See, e.g., United States v. Bakker, 925 F.2d 728, 732 (4th Cir.1991). Under this interpretation of Rideau, the question is whether the pretrial publicity, standing alone, is so prejudicial as to raise a presumption that prospective jurors have been affected by it, and if not, whether voir dire of prospective jurors reveals an actual prejudice among the jury pool that makes it impossible to empanel an impartial jury. See id.
79. The meaning and effect of Rideau are unclear and do not inexorably lead to this two-step test. See 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 22.2(a), at 763-64 (1984); ABA Standards for Criminal Justice: Fair Trial and Free Press § 8-3.3 (3d ed. 1991) [hereinafter 1991 ABA Standards ] (explicitly rejecting requirement of “actual prejudice” and requiring only “substantial likelihood of prejudice”); People v. Williams, 48 Cal.3d 1112, 259 Cal.Rptr. 473, 480, 774 P.2d 146, 153 (1989) (en banc) (requiring only “reasonable likelihood” of prejudice, which denotes lesser standard of proof than “more probable than not”). Since the trial court in Rideau did conduct voir dire in which the jurors who had been exposed to the pretrial publicity indicated that they had not formed fixed opinions about the defendant’s guilt, see Rideau, 373 U.S. at 732, 83 S.Ct. at 1422 (Clark, J., dissenting), the holding in that case may be limited to instances of pretrial publicity that are so prejudicial that they entitle an appellate court to disregard contrary evidence elicited during voir dire and relied upon by the trial court. The Court is not asked to resort to such extreme measures in the present case.
80. Moreover, I find nothing in the record to suggest that the trial court employed a presumption of prejudice here, nor do I find any New Mexico authorities adopting the two-step test which the majority applies. On the contrary, our case law appears to reject both the proposition that exposure to pretrial publicity can be presumptively prejudicial in and of itself, see State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991), and the proposition that a change of venue cannot be granted without a conclusive showing of actual prejudice. See McCauley, 80 N.M. at 175-76, 453 P.2d at 196-97 (quoting State v. Alaniz, 55 N.M. 312, 232 P.2d 982 (1951)); cf. II ABA Standards on Criminal Justice § 8-3.3 (2d ed. 1980) [hereinafter 1980 ABA Standards ] (probability of prejudice is the issue; no showing of actual prejudice is required); State v. Frank, 92 N.M. 456, 458, 589 P.2d 1047, 1049 (1979) (recognizing that ABA Standards may provide useful guidelines for New Mexico courts). For these reasons, I would reject the standard of proof employed by the majority.
81. The majority suggests that the State must carry a particularly heavy burden of proof in this case because the State is the movant. I respectfully disagree. Our Supreme Court has repeatedly recognized that the State may move for a change of venue without violating a defendant’s rights under Article II, Section 14 of the New Mexico Constitution or Section 38-3-3. See State v. Lopez, 84 N.M. 805, 807, 508 P.2d 1292, 1294 (1973); State v. Archer, 32 N.M. 319, 323, 255 P. 396, 398 (1927); State v. Holloway, 19 N.M. 528, 535, 146 P. 1066, 1067 (1914). New Mexico is not unique in allowing for a change of venue at the State’s request. At common law, both the prosecution and the defense were permitted to obtain a change of venue. See 1 Joel Prentiss Bishop, Bishop’s New Criminal Procedure §§ 69, 75a (2d ed.1913). Several of our sister states continue to recognize that the prosecution has an interest in the fair administration of justice which may outweigh a defendant’s right to be tried in a particular location. See 1991 ABA Standards, supra § 8-3.3 (prosecution may move for change of venue because it has independent interest in obtaining a fair trial); 2 LaFave & Israel, supra § 22.2(a), at 765 (same).
82. Even in the states which recognize a defendant’s absolute right to be tried in a particular venue, a defendant may waive that right by moving for, or consenting to, a change of venue, see State v. Nichols, 877 S.W.2d 722, 728 (Tenn.1994), or by objecting to a motion to return venue back to the county where the crime is alleged to have been committed after venue has been changed to another county. See 1 Bishop, supra § 73, at 55. New Mexico courts also recognize that a defendant may waive his right to be tried in the county where the crime is alleged to have been committed. See Lopez, 84 N.M. at 807-08, 508 P.2d at 1294-95.
83. In the present ease, the alleged crimes were committed in Bernalillo County; hence Bernalillo County is the only venue in which Defendant has a right to be tried under Article II, Section 14 of the New Mexico Constitution. However, Defendant waived this right by successfully moving for a change of venue to Taos County and then objecting to the State’s effort to move the third trial back to Bernalillo County. Once this right has been waived, it no longer provides any basis for imposing heightened scrutiny or a heavier burden of proof upon the State’s motion for a change of venue. Cf. Nichols, 877 S.W.2d at 728 (where the defendant waived his right to a particular venue by moving for a change of venue, appellate court would find no reversible error in trial court’s venue decision absent showing that the defendant was prejudiced, the administration of justice harmed, or the trial court abused its discretion).
84. The majority further suggests that the State must bear a heavier burden of proof in this ease because the first change of venue from Bernalillo County is a factor that weighs against the second change of venue from Taos County. However, the authorities upon which the majority relies to support this proposition only state that a prior change of venue “affects the analysis” of the factors the court is to consider in making its decision about a second change of venue. See People v. Cooper, 53 Cal.3d 771, 281 Cal.Rptr. 90, 107-08, 809 P.2d 865, 882-83 (1991) (en banc) (citing People v. Gallego, 52 Cal.3d 115, 276 Cal.Rptr. 679, 703, 802 P.2d 169, 193 (1990) (en banc)). Hence, I read these authorities as allowing for circumstances in which a prior change of venue weighs in favor of a second change of venue, not against it. I also note that under the California law that these authorities apply, it is entirely permissible to grant pretrial appellate review of a trial court’s venue decisions before any voir dire has been conducir ed. See Maine v. Superior Ct., 68 Cal.2d 375, 66 Cal.Rptr. 724, 726-27, 438 P.2d 372, 374-75 (1968).
85. In the present case, the first change of venue provided several factors that could weigh in favor of a second change of venue. First, since there was no evidentiary hearing on the first motion to change venue from Bernalillo County to Taos County, this prior change has no factual foundation upon which the trial court could rely in opposing a second change of venue. Second, the prior move to Taos County placed the trial in a smaller and more closely-knit community than either Bernalillo County or Dona Ana County. See People v. Adcox, 47 Cal.3d 207, 253 Cal.Rptr. 55, 66, 763 P.2d 906, 917 (1989) (en banc) (under some circumstances, court may infer that the smaller the community, the greater the chance of an unfair trial); Alfred Friendly & Ronald L. Goldfarb, Crime and Publicity 79 n. 3 (1967) (impact of media coverage is less likely to dissipate over time in smaller community). Finally, because Defendant waived his constitutional right to be tried in Bernalillo County by moving for a change to Taos County, that right no longer carries any weight in the analysis of whether to grant a second change of venue.
86. Defendant’s waiver of this right makes this case distinguishable from the authorities that the majority cites to support its imposition of a heavier burden of proof upon the State in this case. Those authorities are limited to situations in which a prosecutor’s motion to change venue is an attempt to override a defendant’s constitutional right to be tried in the venue where the crime was alleged to have been committed. See Mast v. Superior Ct., 102 Ariz. 225, 427 P.2d 917 (1967) (en bane) (defendant objected to prosecutor’s motion to change venue from county where crime was alleged to have been committed); Ashley v. State, 72 Fla. 137, 72 So. 647 (1916) (per curiam) (same); Rhoden v. State, 179 So.2d 606 (Fla.Dist.Ct.App.1965) (same). When the defendant has waived his or her constitutional right to be tried in a particular venue, as Defendant has done in the present case, this right no longer provides a basis for raising the standard of proof or requiring voir dire of prospective jurors.
87. Because there is no basis for requiring a heightened standard of proof in this ease, I do not regard the presence or absence of voir dire of a third venire as the only determinative factor in deciding whether there were adequate grounds for a venue change, especially where the trial court had the benefit of a record replete with expert analysis of public opinion surveys, published statements of community sentiment, and voir dire conducted in prior mistrials. See McCauley, 80 N.M. at 175-76, 453 P.2d at 196-97; 1991 ABA Standards, supra § 8-3.3. A change of venue is not simply a last-minute appendage to the jury selection process. See Note, The Efficacy of a Change of Venue in Protecting a Defendant’s Right to an Impartial Jury, 42 Notre Dame Law. 925, 935 (1967).
88. While voir dire may prove useful in many cases, I would not impose a rigid requirement that trial courts must always conduct voir dire of prospective jurors before ruling on a motion to change venue. Such a requirement unnecessarily infringes upon the broad discretion that trial courts traditionally are afforded in determining the scope of voir dire and other areas of inquiry that indicate whether juror bias exists. See Mu’Min v. Virginia, 500 U.S. 415, 427, 111 S.Ct. 1899, 1906, 114 L.Ed.2d 493 (1991); State v. Isiah, 109 N.M. 21, 27-28, 781 P.2d 293, 299-300 (1989), overruled on other grounds by State v. Lucero, 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993). “[Tjhis primary reliance on the judgment of the trial court makes good sense [because] the judge of that court sits in a locale where the publicity is said to have had its effect and brings to his [or her] evaluation ... his [or her] own perception of the depth and extent of news stories that might influence a juror.” Mu’Min, 500 U.S. at 427, 111 S.Ct. at 1906.
89. Imposing a rigid requirement of voir dire also places the party seeking a change of venue in “an unnecessarily awkward position”:
Unless he exhausts all his peremptory challenges he cannot claim on appeal, in the absence of a specific showing of prejudice, that the jury was not impartial. Yet, convinced that he must go to trial because his motion for a venue change was at first denied and in all likelihood will not ultimately prevail, he may fail to use every peremptory challenge sensing that the jurors he has examined may be comparatively less biased than others who might be seated were his peremptory challenges exhausted.
2 LaFave & Israel, supra § 22.2(a) (quoting Maine, 66 Cal.Rptr. at 727-28, 438 P.2d at 375-76). “It seems undesirable to use voir dire as the primary method of determining the character of the threat to trial fairness and at the same time make it the principal safeguard against such a threat if it exists.” 1980 ABA Standards, supra § 8-3.3; see also 1991 ABA Standards, supra § 8-3.3 (noting that it is administratively preferable to resolve change of venue motion at earliest possible stage of proceedings).
90.As the majority acknowledges, making voir dire such a determinative factor also is problematic because “to expect jurors to confess bias is not always a reliable practice.” State v. Shawan, 77 N.M. 354, 358, 423 P.2d 39, 42 (1967); cf. State v. Ball, 34 N.M. 254, 280 P. 256 (1929) (affirming change of venue following mistrial in which juror failed to disclose bias in favor of defendant). In particular, the reliability of voir dire may be questioned where there is a lack of candor among prospective jurors, or where lawyers exploit voir dire as an appellate review in order to reach its conclusion that the trial court engaged in “improper speculation” with a “fatal” lack of factual foundation. I respectfully disagree with this conclusion and find no basis for the majority’s departure. The record is replete with admissible evidence to support the trial court’s detailed factual findings regarding local prejudice and public excitement in Taos County, and this evidence provides a basis for the trial court’s ruling that is entirely independent of any speculation regarding jury deliberations or the constitutionally protected statements of counsel that were at issue in Twohig v. Blackmer, 1996 NMSC 023, 121 N.M. 746, 918 P.2d 332.1
96. The trial court properly took judicial notice of the admissible material in the record. See DiMatteo v. County of Dona Ana, 109 N.M. 374, 379, 785 P.2d 285, 290 (Ct.App. 1989) (“A district court is required to take judicial notice of its prior proceedings in the same cause.”); cf. State v. Anaya, 1997 NMSC 010, ¶ 13, 123 N.M. 14, 933 P.2d 223 (decided in 1996) (New Mexico Supreme Court may take judicial notice of record on file in court). The trial court was correct in considering its “own perception of the depth and extent of news stories that might influence a juror____” Mu’Min, 500 U.S. at 427, 111 S.Ct. at 1906. The evidence of which the trial court took judicial notice is clearly delineated in the record. See Frost v. Markham, 86 N.M. 261, 263, 522 P.2d 808, 810 (1974).
97. The trial court correctly considered the expert opinion and public-opinion survey of Brian Sanderoff. The determination of whether to grant a change of venue “may be based upon such evidence as qualified public opinion surveys or opinion testimony offered by individuals ____” 1991 ABA Standards, supra § 8-3.3; see also Frank, 92 N.M. at 458, 589 P.2d at 1049 (recognizing that ABA Standards may provide useful guidelines for New Mexico courts). The record indicates that Sanderoff was qualified and accepted as an expert in the following fields: public opinion polls, demographic analysis, redistricting, census data, and effects of media coverage.
98. With this information before it, the trial court considered a number of relevant factors and weighed these factors in favor of a change of venue from Taos County. See Williams, 259 Cal.Rptr. at 480, 774 P.2d at 153 (listing relevant factors); 21 Am.Jur.2d Criminal Law § 389 (same). Specifically, four of these factors warrant further discussion: (1) the nature and extent of pretrial publicity; (2) the nature and size of the Taos community; (3) political factors; and (4) the presence of fixed opinions.
1. Nature and Extent of Publicity
99. The events occurring on Christmas Eve 1992 and the ensuing prosecution of Defendant generated an extremely large volume of high-profile press coverage. As the majority acknowledges, the pretrial publicity was extreme. The trial court heard expert testimony that Taos County fell within the designated market area of the Albuquerque newspapers and television stations from which much of the publicity emanated, and that a high percentage of Taos residents were exposed to these sources on a regular basis. Taos residents were also exposed to radio broadcasts concerning the incidents which emanated from Albuquerque. The trial court reviewed over 200 newspaper articles and more than 40 television broadcasts, including a special television program devoted to this case, to reach its detailed findings regarding the nature and extent of pretrial publicity in Taos County.
100. The press coverage was unrelenting, continuing through the conclusion of the second trial with front-page newspaper articles and top-story television broadcasts. As noted in one newspaper article, “radio shows were abuzz with opinion about the hung jury____” “Public Expresses Dismay Over House Decision,” Albuquerque J., June 21, 1994, at A5. Another article in the June 23, 1994, edition of the Taos News, entitled “Highly publicized trial draws media circus; judge becomes ringmaster,” observed that Defendant’s “trial was moved to Taos from Albuquerque because of pretrial publicity. But the move did not stop the publicity.” Hence, this is not a case where publicity was minimal or had diminished over time.
101. The trial court’s review of the content of the newspaper articles and television broadcasts presented in the record revealed that the nature of the publicity was, in some, instances, emotional, sensational, inflammatory, intrusive, and potentially misleading. As noted in the trial court’s order, pictures of the accident scene were shown repeatedly in newspapers and on television. Both Defendant’s family and the remaining family of the victims were depicted and interviewed by the media on a regular basis. Defendant was described as a “drunk Indian” and a “murderer.” The prosecutors and victims’ family members were accused of being “racists” and harboring a “lust for vengeance.” Media coverage of the first and second trials included cameras in the courtroom, and probing interviews with members of the jury and the venire.
102. During voir dire of prospective jurors before the second trial, it became apparent that some of the media coverage had been misleading, as false impressions about the facts of the case were traced to what prospective jurors had read or seen in the media. The State’s polling expert also expressed a concern that people who had learned about the case through the media were quick to judge whether Defendant was guilty or innocent regardless of their knowledge of the evidence presented in the case.
103. The foregoing constituted sufficient evidence to support the trial court’s findings regarding the nature and extent of the publicity.
2. Nature and Size of Community
104. Courts may consider the nature and size of the community as a factor in their venue decisions where they find it reasonable to infer that the impact of media coverage is less likely to dissipate over time in a smaller community or that the small size of the community increases the risk of an unfair trial for other reasons. See Adcox, 253 Cal.Rptr. at 66, 763 P.2d at 917; Maine, 66 Cal.Rptr. at 732, 438 P.2d at 380 (citing Friendly & Goldfarb, supra, at 79). In this case, the trial court’s order changing venue from Taos County contains several findings regarding the nature and size of the Taos community.
105. The State’s expert on demographics presented census data showing that Taos County had a population of 23,118, about 70 percent of which are adults. In comparison, Bernalillo County, where the offense was alleged to have been committed, had a population of about 500,000 people. Dona Ana County, where the third trial was held, had a population of 135,510. The size of the community at issue in the second change of venue is thus affected by the first change of venue, since Taos County has a significantly smaller number of individuals from which a jury pool may be selected than either Bernalillo or Dona Ana counties.
106. Voir dire of prospective jurors during the second trial gave some indication that information, opinions, and influence regarding the case were widely shared due to the close-knit nature of the Taos County community. At least one prospective juror in the second trial had attended the first trial. Several others had heard about the first trial from family, friends, neighbors, and co-workers. In addition, the trial court considered its own past experience with jury trials in Taos County in reaching its conclusions regarding the close-knit nature of the Taos community.
107. There was sufficient evidence in the record to support the trial court’s findings regarding the nature and size of the Taos community.
3. Political Factors
108. “Political factors have no place in a criminal proceeding, and when they are likely to appear ... they constitute an independent reason for a venue change.” Maine, 66 Cal. Rptr. at 732, 438 P.2d at 380. This principle can be traced to Sheppard v. Maxwell, 384 U.S. 333, 342, 354 n. 9, 86 S.Ct. 1507, 1512, 1518 n. 9, 16 L.Ed.2d 600 (1966), where the denial of the defendant’s right to due process resulted, in part, from the fact that both the chief prosecutor and the trial judge were engaged in a “hotly contested election” that took place about two weeks after the trial began. Subsequent cases have expanded consideration of political factors beyond the context of elections involving officers of the court. In particular, courts have considered “political debate concerning the fiscal impact of the trial” as one factor supporting a change of venue. See People v. Tidwell, 3 Cal.3d 62, 89 Cal.Rptr. 44, 50, 473 P.2d 748, 754 (1970).
109. The offenses at issue in the present case occurred about one month prior to the start of a legislative session, and the victims’ family members became the focus of efforts to reform the laws regarding drinking and driving during that session. While most of this legislative lobbying occurred outside of Taos County, it was widely reported by Albuquerque media sources which targeted Taos County as part of their designated market area.
110. The attention paid to this ease by elected officials and local community leaders did not abate after the first or second mistrials occurred. Rather, the district attorney in charge of prosecuting the case was called before the legislature to answer questions concerning the fiscal impact of retrying the case a third time. One of the individuals engaged in this questioning was a State Senator representing Taos County. See Colleen Heild, “Senators Grill DA on Gordon House Case,” Albuquerque J., Feb. 25,1995, at A10. The State Senator was quoted in the press as “wondering if any of this (requested) funding [is] necessary to pursue the jury chasing to find a jury that will ultimately convict this gentleman[,]” and stating that “Taos juries have spoken twice but that he believes [District Attorney] Schwartz will try the case 10, 15 times until he gets what he wants.” In addition, a local community leader and former state senator wrote and published a letter in the Taos News accusing prosecutors of “want[ing] to exploit the incident for political enhancements or just ... allow(ing) their racist attitudes to secrete from the depth of their ingrained self.” Francisco “El Comanche” Gonzales, “Racist Remarks,” Taos News, July 7, 1994.
111. There is sufficient evidence in the record to support a finding that political factors, and their coverage in the Taos media market, weighed in favor of a venue change in this case.
4. Presence of “Fixed Opinions” 112. In Chamberlain, 112 N.M. at 726, 819 P.2d at 676 (quoting State v. McGuire, 110 N.M. 304, 311, 795 P.2d 996, 1003 (1990)), our Supreme Court stated that “[e]xposure of venire members to publicity about a case by itself does not establish prejudice^]” and therefore courts must also inquire as to whether, such exposure caused jurors to have “ ‘such fixed opinions that they could not judge impartially the guilt of the defendant.’ ” However, insofar as such “fixed opinions” involve the subjective mental states of people in the Taos community, they are seldom, if ever, susceptible to direct proof, and therefore may be proved by circumstantial evidence. See State v. Manus, 93 N.M. 95, 98, 597 P.2d 280, 283 (1979) (applying this principle to element of crime requiring proof of a defendant’s intent), overruled on other grounds by Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982); 21 Am.Jur.2d Criminal Law § 381 (noting that no witness can swear as a matter of fact, independent of his judgment, that local prejudice exists in the minds of county inhabitants); 1980 ABA Standards, supra § 8-3.3 (allowing various forms of circumstantial evidence).
113.In this case, the trial court had before it expert testimony regarding public opinion polls taken in Taos County after the first trial in July 1994, published statements by members of the Taos community including past and current elected representatives, and the evidence adduced during jury selection at two prior mistrials in Taos County. The State’s polling expert opined that, after the first trial, “88 percent of the people in Taos County know who [Defendant] is or about the incident he was involved in, and this level of awareness could impact on ... the court’s ability to impanel an impartial jury.” The trial court could reasonably infer the presence of “fixed opinions” among prospective jurors in Taos County from this expert testimony and public opinion polling. See 1991 ABA Standards, supra § 8-3.3.
,114. As noted, past and current elected representatives from Taos County made public comments that accused the prosecution of harboring racial bias and engaging in “jury chasing.” Other individuals from Taos County, including some jurors and prospective jurors, also had their opinions regarding the case published in the media. It was reasonable for the trial court to infer that the elected representatives from Taos who voiced their opinions in the media were representing the views of their constituents.
115. The trial court also had the benefit of all the evidence adduced during jury selection at the two prior mistrials in Taos County. At the first trial, approximately forty percent of the 90 prospective jurors were removed for cause. The transcript of the voir dire in the first mistrial indicates that several jurors had read or heard media coverage about the case and formed opinions. A significant percentage of jurors were removed for cause from the second mistrial as well. During voir dire, defense counsel stated that “most of you have read about [the ease] it appears from your questionnaires.” The statistics from juror selection in the first two mistrials could support a reasonable inference that the requisite juror impartiality could not be obtained for a third trial in Taos County. See Williams, 259 Cal.Rptr. at 482-83, 774 P.2d at 155-56.
116. Prospective jurors in the first mistrial made several statements indicating their belief that the case had racial or emotional overtones which led them to sympathize with Defendant. These statements by individual Taos residents also support the inference that there were “fixed opinions” which would frustrate any further attempt to seat an impartial jury at a third trial in Taos County.
117. In addition, the voir dire from the two prior mistrials, which involved detailed juror questionnaires and individual sequestered voir dire of some prospective jurors, supports a reasonable inference that, even with such protective measures in place, the voir dire of a third Taos County jury pool would be no more reliable than the other evidence that the trial court already had accumulated in the record regarding public excitement and local prejudice in Taos County. See 1980 ABA Standards, supra § 8-3.3. Some jurors appeared to be guided toward “the right answer” by the lawyers’ leading questions. Others indicated that they wanted to serve on the jury to have “input” on the case even though they had already formed opinions about it. Many prospective jurors expressed ambivalence about their opinions, vacillated back and forth on the question of whether they could be impartial, or insisted they could be fair and impartial even though they had strong opinions about the case. Under these circumstances, the trial court did not abuse its discretion in moving Defendant’s third trial from Taos County.
C. Conclusion
118.Because I would not find an abuse of discretion where the trial court followed the correct legal standard for granting a change of venue under Section 38-3-3 and premised its ruling on detailed factual findings which are amply supported by substantial evidence, I respectfully dissent from the majority’s conclusion that it was reversible error to move Defendant’s third trial from Taos County. I concur in the majority’s affirmance of Defendant’s-DWI conviction.
. I reject the majority's attempt to draw parallels between the March 1995 change-of-venue order at issue in this appeal and the December 1994 gag order at issue in Twohig. While both orders may involve a similar factual inquiry into "the imminence and magnitude of the danger said to flow from [a] particular utterance,” Twohig, 1996 NMSC 023, ¶ 16, 121 N.M. 746, 918 P.2d 332, the change-of-venue order is not a prior restraint on speech and to scrutinize it as such is contrary to the principle that "post-speech remedies are favored over prior restraints.” Id. at 14. Unlike the gag order, the change-of-venue order is a discretionary ruling that was amply supported by detailed factual findings regarding the statutory criterion of local prejudice or public excitement. See Ferguson, 111 N.M. at 193, 803 P.2d at 678 (appellate court looks for sufficient indication in the record of reasons underlying trial court’s discretionary ruling).