Maggie Shepard

Albuquerque Journal

ALBUQUERQUE - An Albuquerque woman was "unconstitutionally punished for refusing to submit to an unreasonable blood test" at a DWI checkpoint in 2011, the state Supreme Court ruled last week.

Its ruling, along with a federal Supreme Court ruling, changes the way the state's implied consent law can be deployed.

The law gives police the power to force an alcohol breath test of any driver suspected of driving while drunk. It used to allow police to force a breath or chemical test and add an enhanced charge for drivers who refuse.

At a DWI checkpoint in 2011, Bernalillo County sheriff's deputy Patrick Rael conducted two breath tests on Larissa Vargas, scoring 0.04 blood alcohol content, and he suspected she was high on drugs.

She refused a blood draw. So, he enhanced her driving while intoxicated charge because she refused to take the blood test.

Vargas, who was charged with driving while drunk to the slightest degree, appealed the enhanced charge.

While her appeal was pending, the U.S. Supreme Court ruled in a case referred to as Birchfield.

According to the state justices' opinion, the Birchfield case basically says "a person who is arrested for DWI may be punished for refusing to submit to a breath test under an implied consent law, but may not be punished for refusing to consent to or submit to a blood test under an implied consent law" unless the officer gets a warrant or there is an emergency in a case involving great bodily harm or death.

But Vargas hadn't injured anyone, and the deputy didn't have a warrant.

The Court of Appeals, using Birchfield, overturned Vargas' enhanced charge.

State prosecutors appealed. And on Thursday, state Supreme Court justices, in a unanimous opinion written by Justice Edward Chavez, agreed with the Court of Appeals and sent Vargas' case to a lower court to handle what remains of the case on the basic charge of DWI to the slightest degree.

"We conclude that Vargas cannot be subjected to criminal penalties for refusing to submit to an unreasonable search," Chavez wrote, noting that both breath and blood tests, to determine blood alcohol content, or BAC, constitute a search. "In contrast to breath, we do not regularly shed blood, and a blood test provides an officer with a sample from which more information than mere BAC can be extracted."

More:

Bond reform critical to fight crime epidemic

Supreme Court declines to hear New Mexico tree clearing dispute

Court invalidates 10 vetoes by New Mexico governor