Contents

Preface

1. DWI Offenses and Elements

2. Initial Stop, Field Sobriety Testing, and Arrest

3. Implied Consent and Breath and Blood Testing

4. Sentencing

5. Other Alcohol-Related Offenses

Appendices

2.1    Overview

Before an officer may arrest an alleged DWI offender, he or she must follow certain prescribed steps.  Many of those steps are very detailed, especially administration of both field sobriety tests and chemical tests (breath and/or blood) to determine alcohol or drug levels.  An officer making a stop and subsequent arrest must be well trained in DWI detection, field sobriety tests, chemical tests, reports, citation and complaint writing, and how to testify in court. 

The role of the judge is to determine from the evidence presented whether the arresting officer followed proper procedure at each step of the process.  If the judge determines the officer proceeded correctly at the initial stop, investigation, testing and arrest, then the case should proceed to judgment on the charges filed.  If a defendant, through counsel or pro se, challenges the officer’s procedures at any step and the prosecution cannot provide adequate evidence to show the officer proceeded properly, the judge may consider granting a motion to suppress improperly obtained evidence and/or a motion to dismiss the charges, as appropriate.  As with all criminal cases, in order to secure a conviction, the prosecution must prove the elements of the DWI charge beyond a reasonable doubt.

2.2   Reasonable Suspicion for a Traffic Stop

Before an officer may make a suspected DWI traffic stop, or any traffic stop, the officer must have “reasonable suspicion” to do so.  This standard is separate from, and lower than, the probable cause standard needed to make an arrest and therefore more easily satisfied.  To show reasonable suspicion, the officer must be "aware of specific articulable facts, together with rational inferences from those facts," and, based on those facts and inferences, reasonably believe that a violation of the law has occurred or is occurring.  State v. Galvan, 90 N.M. 129, 131 (Ct. App. 1977).  Whether an officer has reasonable suspicion to stop a vehicle is based on the totality of the circumstances surrounding the stop. 

To put reasonable suspicion in simpler terms, if the officer can persuasively articulate (explain) to the court what was seen and why that led the officer to reasonably believe the law had been or was being violated, reasonable suspicion will be shown.  For example, if an officer observed a vehicle not stopping at a red light, the officer can explain to the court that because the vehicle was observed running a red light, a law was being violated and therefore the officer had a valid reason to make a traffic stop. 

In the DWI context, the officer may observe what are called “indicators” that a person may be driving under the influence.  Common DWI indicators include a car failing to maintain its designated lane of traffic, being driven at erratic speeds, or a car that continues to sit at a traffic light after it has turned green.  These actions and inactions may indicate to the trained officer that the individual is not paying attention to the act of driving and this may perhaps be due to the influence of alcohol and/or drugs.  If the officer can explain to the court’s satisfaction what drew his or her attention to the offender's vehicle and why the officer felt a violation of the law had occurred or was occurring, the reasonable suspicion standard for the stop will be met. 

It is a common occurrence that an officer stops a motorist for a traffic offense without initially having any reason to suspect DWI.  For example, an officer may stop a car based on the observation that it lacks a valid registration tag or for a seat belt violation.  Upon making contact with the driver, the officer then may observe indicators that provide reasonable grounds to conduct a DWI investigation, such as an odor of alcohol, slurred speech or an open container of liquor.  Here again, if the officer can explain to the court’s satisfaction what drew his or her initial attention to the offender's vehicle and why the officer felt a violation of the law had occurred or was occurring, the reasonable suspicion standard for the stop will be met.

Considering the totality of the circumstances regarding the stop, the Court of Appeals in State v Lackey, 2005-NMCA-038, held that a stop was illegal.  The officers, who were investigating an automobile crash, observed the defendant drive by the scene twice.  The officers testified that based on their experience DWI suspects frequently leave the scene of the accident, and this is why they stopped the vehicle.  The court found this testimony unpersuasive given that the defendant was returning to the scene and not leaving.  The court also relied on the fact that the area in question was one where the presence of traffic was not unusual and there were other alternative reasons why a vehicle would be driven by a crash scene more than once.  In other words, the totality of the circumstances did not support reasonable suspicion for the traffic stop.  The testimony of the officers revealed that their decision to stop the driver was essentially based on a hunch, which is not sufficient for reasonable suspicion purposes.

Most DWI investigations and charges stem from a traffic stop of a motorist by law enforcement in response to an officer’s observation of some type of traffic offense.  However, a DWI investigation can also commence from an officer’s initial contact with a motorist at a DWI sobriety checkpoint, or from a concerned citizen’s report about improper driving they witnessed.  DWI cases can also begin with an officer’s exercise of his or her community caretaking function, whereby the officer either stops a moving vehicle or comes upon an already stopped vehicle to check on the safety and welfare of the motorist.  What follows is a discussion of DWI cases commencing from those types of initial contact situations.  

2.2.1 DWI Roadblocks

A DWI roadblock acts as a substitute for individualized reasonable suspicion when it meets constitutional requirements and is determined to be reasonable in its design, set-up and operation.  A DWI roadblock, also known as a sobriety checkpoint, is valid if there is “evidence to ensure that an individual's reasonable expectation of privacy is not subject to arbitrary invasion solely at the unfettered discretion of officers in the field.”  City of Las Cruces v. Betancourt, 105 N.M. 655, 658 (1987).  In Betancourt, the New Mexico Supreme Court set out eight guidelines that must be considered by the court “in determining the reasonableness of a roadblock.”  Betancourt at 658.  The guidelines are:

• Supervisory personnel must be involved in the planning of the roadblock.  These personnel must approve both the site of the roadblock and the specific procedures to be followed.

• There must be very little to no discretion allowed the officers conducting the roadblock.  In other words, they must be instructed to follow a uniform pattern, such as stopping every vehicle or every third vehicle.  Additionally, the officers should be instructed on uniform procedures on how to deal with each driver, so that as nearly as possible all drivers are dealt with in precisely the same manner.

• Adequate safety measures must be in place to protect the officers and the motoring public.  These include properly placed lights and directional signs prior to, and while directing vehicles into, the roadblock, safety vests and equipment for the officers, and safety planning for the actual placement of the roadblock.

• The location of the roadblock must be safe and reasonable and not intended to target a specific population.

• The time of the roadblock’s operation must be reasonable and not at a time when it will impede a large volume of traffic.

• The official nature of the roadblock must be apparent. Officers must be in uniform, signs must be posted and marked police cars should be present.

• Motorists should not be subject to lengthy detentions. Initial questioning should be brief, and if the officer needs to do further investigation, the motorist should be directed to another location.

• There should be advance publicity of the roadblock, although the specific location need not be publicized.

All of the Betancourt guidelines must be considered by the trial court, but none are absolutely required to be met to the court’s satisfaction except the role of supervisory authority (the first guideline) and the restrictions on the discretion of the line officers (the second guideline).  State v. Bates, 120 N.M. 457 (Ct. App. 1995).  If the court determines that law enforcement failed to establish uniform procedures for dealing with motorists at a roadblock, the roadblock will not pass constitutional requirements and the initial contact will be determined to be invalid.  Bates at 462-63. 

In a 2002 case, the Court of Appeals upheld a DWI conviction based on a roadblock, even though the line officers violated certain Betancourt guidelines.  In State v. Villas, 2002-NMCA-104, the defendant argued her conviction should be overturned because another driver who was stopped at the roadblock and who had a BAC above the legal limit was not charged with DWI.  In fact, this other driver was the brother of a police officer, and the line officers allowed another officer to take this individual home rather than charging him.  The Court of Appeals held the Betancourt standards applied to “the constitutionality of a roadblock stop, and not later police actions.”  Here, the roadblock was set up properly and the initial stop of the driver was lawful under Betancourt.  The fact that the officers violated proper procedure was a matter for which they were later disciplined, but did not affect the validity of the roadblock itself or the defendant’s conviction.

2.2.2 Citizen Reporting of Possible DWI or Other Violations of the Law

With the proliferation of cell phones it is quite common for citizens to call police to report suspicious or improper driving.  What happens when the officer comes upon the reported vehicle and observes no problems with the driving?  This was the situation in State v Contreras, 2003-NMCA-129.  In this case, police dispatch received an anonymous call that described a vehicle the caller said had been “driving erratically.”  When the officers came upon the vehicle, they did not observe any erratic driving but stopped the vehicle anyway.  Upon observing signs of intoxication such as “bloodshot, watery eyes and an odor of alcohol” the officers had the defendant perform field sobriety tests.  After performing poorly on these tests, the defendant was arrested for DWI.  In upholding the conviction, the court held that for an anonymous tip to be the basis for establishing reasonable suspicion to stop a vehicle, there must be enough information to believe that “a crime was being or was about to be committed, or . . . the possible danger to public safety was sufficient . . . to conduct the investigatory stop.” Contreras at ¶ 7.
 
In Contreras the court found the tip was specific about the description and location of the vehicle and little time had passed between the tip and the stop.  Additionally, the court noted that New Mexico courts have long held that eyewitness citizen informants are inherently reliable.  Lastly, the court determined the interest in protecting the public from a possibly dangerous driver outweighed the driver’s right to be free from interference with his or her liberty.  The court acknowledged this was especially true in drunk-driving cases, where serious harm or death to others can result.  Considering all of these factors together, the Court of Appeals held the anonymous tip from an eyewitness was sufficient to provide reasonable suspicion for the officers to stop the vehicle and investigate further.

Thus, the critical considerations in citizen informant DWI cases are: (1) the level of specificity provided by the citizen in their outreach to law enforcement regarding the description of the vehicle, what was observed regarding that vehicle’s operation, and the location in which the observations were made; and (2) the amount of time which passed between when law enforcement was advised and when they made the traffic stop.  If sufficient details are provided in the citizen’s information, the officer does not have to witness a traffic infraction before a stop of the identified vehicle can be made.
 
2.2.3    Community Caretaker Role of Police Officers

It is well established that an officer may “stop a vehicle for a specific, articulable safety concern.”  Apodaca v. State ex rel. Tax & Revenue Dep't., 118 N.M. 624, 626 (Ct. App. 1994).  This is known as the “community caretaker” function of law enforcement.  Officers have a duty to stop a vehicle if they believe someone in the vehicle may be in danger or might require assistance.  In Apodaca, a motorcycle was stopped because the officer observed it weaving within its lane.  This did not rise to the level of suspicion of DWI, but the officer was justified in stopping the vehicle out of concern the rider may have been having some physical or mechanical problems.  Later investigation resulted in a charge of DWI, but this did not affect the lawfulness of the community caretaker stop.

A more recent case resulted in a DWI charge being dismissed on a directed verdict due to the court’s finding that a valid community caretaker function was not proven.  In State v. Joe, 2003-NMCA-071, the officer testified he was concerned about the safety of the public and stopped the vehicle because it was dusk and the driver had not turned on his headlights as had all other drivers.  At trial, the officer testified several times he could see the vehicle from 500 yards away.  The court held this was not a proper exercise of the community caretaker function because, if the officer could see the vehicle from that distance, there was no valid basis for his concern about the need for the driver to turn on his headlights.  In other words, the totality of the circumstances did not support a specific, articulable and reasonable safety concern.

Another example of community caretaker contact is where an officer observes a vehicle on the side of the road with a flat tire or some indication of mechanical problems.  A community caretaker approach may also be where an officer observes a parked vehicle in which a driver appears to be incapacitated or passed out and contact is made to see if medical attention is necessary.   

2.3    Initial Contact between the Officer and the Driver

Regardless of the reason(s) the officer stops and/or comes into contact with a driver, that initial contact is critical with respect to how the officer, based on her training and experience, chooses to continue to deal with the driver from that point forward. 

Consider the following scenario:

Officer Smith is on routine patrol about 11 p.m.  The officer observes a vehicle entering an intersection from the west and clearly sees it does not have a valid registration sticker on its license plate.  Officer Smith makes a traffic stop intending to cite the person for failure to have valid registration.  When Officer Smith approaches the vehicle, the driver rolls down the window and the officer notices a strong odor of an alcoholic beverage.  [DWI Observation Number One.]  The officer may then shift focus from the registration violation to a preliminary determination of whether a DWI investigation is necessary.  Officer Smith asks the driver for license, registration and proof of insurance.  The driver fumbles while retrieving these documents.  [DWI Observation Number Two.]  Upon speaking with the driver, Officer Smith notices the driver's speech is quite slurred.  [DWI Observation Number Three.] 

At this point in the above scenario, Officer Smith is probably more concerned with getting a possibly impaired driver off the road than with citing the driver for the initial registration violation.  In court, the officer should be prepared to testify to all of those initial observations and how, based on her training and experience in DWI detection, they provided the reasonable grounds for a DWI investigation.

When there is reason to suspect DWI from that initial contact, the officer is trained to make several observations before determining whether field sobriety tests are warranted.  Three are mentioned above – odor of alcoholic beverage, fumbling for paperwork and slurred speech.  The officer is also trained to observe the driver's physical characteristics:  are the eyes bloodshot, watery or not open wide; are the pupils dilated or constricted; is the person speaking erratically or not making sense; is there any indication the person may have vomited; is the person looking exceptionally disheveled?  Additionally, the officer may validly inquire of the motorist whether he or she has been consuming liquor. 

Any or all of these factors, together with other evidence of allegedly being under the influence, can be offered in court to assist the judge or jury in getting a complete picture of the driver for determining whether the motorist was DWI.  These observations are particularly important when the motorist refuses to take field sobriety tests, is unable to take the tests due to a physical disability, or refuses the chemical (breath and/or blood) tests.  In these cases, the officer's observations of the driver are all the judge or jury may have to rely on in determining guilt or innocence.

Officers are further trained to look for indicators beyond the driver's physical characteristics during the initial stop.  Officers are trained that any observations of open containers of alcohol, drugs or drug paraphernalia in the vehicle, or anything else that would indicate drinking or drug use should be noted and included in their police report.  The better and more complete the officer's report, the greater the potential for more detailed testimony from the officer, allowing for a better and more informed decision from the judge or jury.  Thorough information can be especially important in an officer-prosecution case, where the officer may be presenting information to the court without the prompting of questions from a prosecuting attorney.      

In summation, regardless of the reason(s) for the initial contact between the driver and the officer, the officer is trained to be prepared to advise the court, in detail, about what specific observations she made about the driver and how that provided the reasonable grounds to conduct a DWI investigation.

2.4    Field Sobriety Tests (FSTs)

When an officer suspects a driver may be DWI, the next step is to confirm or refute that suspicion through the administration of field sobriety tests (FSTs).  The National Highway Traffic Safety Administration (NHTSA, http://www.nhtsa.gov) adopted, and now officers are trained in the use of, a series of three standardized FSTs.  Most New Mexico law enforcement officers have been trained in the NHTSA standardized FSTs.

The three standardized tests chosen by NHTSA – the horizontal gaze nystagmus (HGN), walk-and-turn, and one-leg stand – all have specific purposes.  The general purpose of all standardized FSTs is to distinguish between motorists who are above, or below, the presumptive .08 alcohol level. State v. Lasworth, 2002-NMCA-029, ¶¶ 16, 22.  FSTs are not designed to measure driving impairment, Lasworth at ¶ 16, and if officers testify in that regard, it is contrary to their NHTSA FSTs training.  The HGN test measures the physiological response of the eye.  The walk-and-turn and one-leg stand tests are “divided attention” tests designed to assess a combination of cognition and dexterity.  In other words, the officers are looking for the motorist’s ability to:  (1) follow the instructions on the FSTs and; (2) physically perform those tests pursuant to those instructions. 

NHTSA developed a scoring system using a specific number of clues, or indicators, for each test.  Each clue, or indicator, counts as one point.  The walk-and-turn test has a total of eight standardized clues, or indicators, which officers are trained to look for and document in a motorist’s performance of that test.  For example, if a motorist fails to make heel-to-toe contact on four of the total eighteen steps taken, that is counted by the officer as one indicator, not four indicators for each missed contact.  The one-leg stand has a total of four possible standardized clues, or indicators, officers are trained to look for and document. 

It is important to note that FSTs are not “pass/fail” tests, but, rather, investigative tools that assist law enforcement in the development of probable cause for a DWI arrest.  Pursuant to NHTSA’s controlled tests on the walk-and-turn and one-leg stand tests, if a motorist exhibits two, or more, clues on either one of those tests, that is an indication that they are at, or above, the .08 alcohol level.

2.4.1 Horizontal Eye Gaze Nystagmus (HGN) Field Sobriety Test

The first test in NHTSA's battery of standardized FSTs is the HGN test.  While incorporating some of the elements of a divided attention test, this is primarily a physiological (relating to the functioning and activities of a living being) test.     

The Horizontal Gaze Nystagmus (HGN) test is . . . based on the knowledge that the “consumption of alcohol has a cognizable effect on human eye movement” which results in visible nystagmus in the human eye.  Nystagmus is a rapid oscillating eyeball movement, which can vary in character, extent, rhythm and direction.

S. Uebelacker, The Eye in DWI:  The Current State of Horizontal Gaze Nystagmus Testing in New Mexico," p. 6 (citations omitted), 2001, available at http://ipl.unm.edu/traf/.

Eyeball movement (nystagmus) is involuntary and is impacted by actions such as alcohol consumption and drug use.  Because the driver cannot control the eye movement, NHTSA determined this test to be a good indicator of the level of intoxication.  Along with the other two standardized FSTs, the HGN test may be used at the scene to assist an officer in estimating a driver's level of intoxication for purposes of developing probable cause. 

All three standardized FSTs, in addition to the officer's observations of the driver's physical characteristics and alternative FSTs (discussed later in this chapter), if given, can be used to either establish or rule out probable cause to arrest.  It is important to remember that HGN test results, however, may not be introduced in court as evidence to support guilt or innocence of impaired driving.  Additionally, and as discussed below, HGN test results should not be allowed into evidence by the court unless the prosecution can lay the proper and required scientific foundation for their admission.  “Foundation” refers to the steps that must be met and/or testimony that must be provided, to the court’s satisfaction, before it will allow introduction of the evidence in question for consideration by it with respect to a particular issue

HGN and the Admission of Scientific Evidence in Criminal Cases
In 1999, the New Mexico Supreme Court ruled in State v. Torres, 1999-NMSC-010, that HGN is a scientific test requiring testimony supporting its scientific relevance and reliability before it may be introduced as evidence of guilt or innocence of DWI charges.  That required testimony supporting HGN’s scientific validity before it can be introduced into evidence, is an example of what is meant by a necessary “foundation” for the admission of evidence.  Just as constructing the frame of a house is a necessary foundation to the commencement of applying the roof, a scientific foundation is necessary before the prosecution can introduce HGN test results. 

In Torres, the defendant argued the officer who administered the HGN test was not qualified to testify to the results and the HGN test was a scientific test for which the prosecution must prove reliability.  The Supreme Court agreed. 

The Torres decision was based on the New Mexico Supreme Court’s earlier decision in State v. Alberico, 116 N.M. 156 (1993).  In Alberico, the court ruled scientific evidence may be admitted only after expert testimony establishes that the evidence is grounded in the methods and procedures of science.  By “grounded,” it means it has as its basis, or as its roots, established and recognized scientific methods and procedures.  An example of alleged scientific testimony that would not be grounded in scientific methods and procedures is if an attorney attempted to introduce a scientist’s testimony that the earth is flat, and that that conclusion was the result of a dream, not from reliable and valid scientific research and data calling into question the commonly understood principle that the earth is spherical. 

In Torres, the court found that even though the HGN test was "generally accepted," this acceptance did not preclude the application of the "evidentiary reliability" standard.  “[T]he results of HGN testing constitute scientific evidence that must meet the standard of evidentiary reliability articulated in Alberico and Daubert.”  Torres at ¶ 30.  The court reasoned that since the test was based on "principles of medicine and science not readily understandable to the jury . . . the HGN test is scientific evidence.”  Torres at ¶ 31 (citations omitted). 

Before an officer will be allowed to testify about HGN test results, therefore, there must be sufficient underlying foundational testimony about the test itself, such as why the eyes jerk, how alcohol consumption impacts the jerk (the nystagmus), the amount of alcohol one has to consume before nystagmus appears, what physiological changes cause nystagmus, and whether there are conditions other than alcohol consumption that cause nystagmus.  All of these questions should be answered before the court makes a determination about whether HGN is scientifically reliable.  The court concluded that since this type of knowledge is probably outside the training and expertise of most police officers, "they are not competent to establish that the test satisfies the relevant admissibility standard."  Torres at ¶ 37.  Rather, a scientist, researcher or medical doctor would be required to supply the scientific and medical data.  Once it has been established that the HGN test meets the Alberico/Daubert standard of scientific reliability, then a properly trained officer would be able to testify about the "administration and specific results of the test."  Torres at ¶ 47 (emphasis in original).

After the Torres decision, the New Mexico Court of Appeals decided a case involving expert testimony on the HGN.  In State v. Lasworth, 2002-NMCA-029, the court ruled HGN did not meet the standard of scientific reliability based upon expert testimony in the district court.  In Lasworth, Dr. Marcelline Burns was called to testify about the test.  Dr. Burns is a psychologist, not a medical doctor.  However, she worked with NHTSA in developing the standardized FSTs including HGN.  The district court ruled Dr. Burns could testify about the scientific reliability of HGN, but not the scientific validity of the test.  The trial court indicated only a medical doctor or biologist could testify to this prong of the requirement set forth in Torres.  Because both the reliability and validity prongs of the test were not met, the district court excluded HGN evidence.

The Court of Appeals agreed with the district court.  While it agreed HGN is a valid test for “discriminat[ing] between drivers above and below the statutory BAC limit, [it was never intended] to measure driving impairment.”  Lasworth at ¶ 15 (quoting J. Stuster & M. Burns, Validation of the Standardized Field Sobriety Test Battery at BAC’s Below 0.10 Percent, Final Report to NHTSA (1998)).  The court noted that just because the test was scientifically valid for one purpose did not make it valid for other purposes.  The Court of Appeals, therefore, held HGN is not a valid, proven method of determining impairment and is not admissible for that purpose.

Interestingly, though, the court did state in footnote 4 that the results of HGN could be used “to establish probable cause for arresting a motorist or to establish ‘reasonable grounds’ for administering a chemical BAC test.”  Lasworth at ¶ 27.

HGN and the Current Practice in New Mexico Courts
As discussed above, there is a significant scientific foundation necessary for the prosecution’s ability to introduce HGN results.  Furthermore, a witness with scientific background is necessary to provide such a foundation.  Therefore, the common practice in New Mexico DWI cases is that the prosecutor, whether it is an attorney or officer, will not make efforts to introduce HGN eye movement results.  Rather, the prosecutor will instead rely on the other evidence supporting probable cause for the arrest.  The court also has the discretion to alert the prosecution and defense counsel, or pro se motorist, that it will not allow any HGN testimony absent a scientific foundation.  Still other courts will allow the officer to testify to HGN observations other than the eye movement.  Examples of this testimony include the driver moving his head contrary to HGN instructions, displaying a sway in his or her stance during the HGN test, and that the driver exhibited bloodshot and watery eyes and an odor of alcohol in his or her facial area during the HGN.  In summary, as a result of the requirement for a scientific foundation, testimony regarding the eye movement in the HGN test has been discontinued in most courts in New Mexico. 

2.4.2 Walk-and-Turn and One-Leg Stand Field Sobriety Tests

The walk-and-turn and one-leg stand tests are called “divided attention” FSTs.  The purpose of divided attention FSTs is to check the driver's cognitive function (i.e. whether the driver listens to and understands the instructions given by the officer) and to observe the driver's physical performance (i.e. whether the driver can maintain balance, walk a straight line, etc.).  Given the walking and balancing components of the walk-and-turn and one-leg stand, the NHTSA guidelines require officers to make efforts to ensure the tests are performed on as level and appropriate ground surface as possible and with adequate lighting. 

Pursuant to their training in DWI detection and investigation, officers are required to provide drivers a series of standardized instructions prior to their performance of the tests.  Also pursuant to their training, officers should testify about the specific instructions given, that they were given according to NHTSA guidelines, that the driver was asked if the instructions were understood, and whether the driver indicated understanding of the instructions. 

If the instructions were not given properly or if the driver did not understand the instructions, the integrity of the test and the value of the testimony are put into question.  In other words, the court may decide not to put that much, if any, “weight” (emphasis, significance) on the driver’s FSTs performance as it relates to the issue of whether the DWI arrest was made with probable cause.  An example of this would be if an officer testified he observed the driver raise her arms during the one-leg stand and, pursuant to his NHTSA FSTs training, he noted that as one of the four potential indicators on that test.  However, the officer’s testimony further reveals that contrary to his training, he never instructed the driver on the need to maintain her arms at her side during the one-leg stand.  Given the absence of that required instruction, the court may decide to place no significance to the driver raising her arms on that test.  

Pursuant to his or her DWI training, the officer is also required to demonstrate the proper performance of the test for the driver.  While it is not necessary for the officer to perform the entire test, at least a portion must be shown.  In fact, for safety reasons, officers are trained not to perform the entire walk-and-turn test because this would put them at too great a distance from drivers and it would also require officers to turn their back on motorists.  At trial, the officer may be asked by the pro se defendant, defense attorney or judge to show exactly how the tests were explained and demonstrated at the time of the stop.

The testimony of the officer should also include whether the driver began the test too soon, if applicable, and specifically how the driver actually performed the FSTs.  Again, pursuant to his or her training in DWI investigations the officer must document the driver’s specific FSTs performance and be able to articulate in court what clues, or indicators, were shown by the driver and specifically how and when those clues were exhibited.  For example, "Ms. Smith failed to touch heel-to-toe on all steps, front and back, by a distance of approximately 3 to 5 inches, stepped off the line five times, and failed to complete the turn as instructed, doing a military about-face, rather than short choppy steps, as was demonstrated."  Or, in the case of the one-leg stand test, "Mr. Jones put his foot down at count 12, began again, put his foot down at count 14, raised his arms, contrary to the instructions provided, and said he couldn't continue."

Pursuant to his or her training, the officer must be specific about the clues, or indicators, he or she observed in the driver’s performance on FSTs.  Officers may be tempted to just testify the driver simply "failed" the test or did poorly without explaining how and why.   This is contrary to their detailed training in the FSTs portion of DWI investigations.  Keep in mind that FSTs are not “pass/fail” tests.  Therefore, in accordance with his or her training on DWI investigations, the officer is required to document the driver’s FSTs performance and should be required to describe exactly what the driver was able or unable to do.

NHTSA’s purpose in developing the standardized FSTs was to give officers a set of standards to follow to assist them in the determination of whether there is probable cause to arrest.  These standards must be explained to the judge and then applied, in detail, to the driver's specific performance on FSTs.  In this way, there is no question regarding whether the officer acted arbitrarily or on a "gut reaction."   
  
2.4.3 Inability to Take Standardized Field Sobriety Tests and Discussion of Alternative Field Sobriety Tests

Occasionally, an officer will encounter a driver who, because of a temporary or permanent physical disability, is unable to perform standardized FSTs.  Numerous physical conditions can render a driver unable to perform the tests.  A driver may have a bad back and be unable to stand on one leg or walk heel-to-toe.  Another motorist may be a paraplegic.  Yet another may have inner ear problems affecting his or her ability to balance.  The NHTSA guidelines on FSTs include direction to law enforcement to take into consideration other factors as well, such as a motorist’s weight and/or advanced age, when determining whether standardized FSTs should be administered. 

Prior to administering any FSTs, officers are trained to inquire into the driver's ability to perform the tests.  In accordance with his or her training, the officer should explain what FSTs generally involve and ask the driver about any physical ailments that would prohibit him or her from taking the tests or that would make taking the tests difficult.  The officer should also be sure the driver’s shoes will not affect the test, e.g. high heels, cowboy boots, "flip-flop" type sandals, etc.  Officers may provide the driver the option of removing his or her footwear or they may make that request of the driver.  If the motorist expresses concern about taking the tests, the officer needs to make a judgment call on whether to forego standardized FSTs and use alternative FSTs instead, or have the driver take only standardized FSTs, but factor in the physical problems when assessing the performance.  This last option may be problematic since the officer is not a medical expert.   Therefore, it is difficult for the officer to distinguish which of the driver's FSTs indicators, or clues, are due to possible alcohol consumption versus which are due to a physical ailment. 

In these situations, the better option, and the option outlined in the NHTSA guidelines, is to offer the driver alternative FSTs that do not involve balance, walking or other physical skills.  Examples of alternative FSTs include the officer asking the driver to recite the alphabet, or a portion of it, or count backwards between certain numbers.  The finger count test is another alternative FSTs.  This involves asking the driver to touch the tips of her fingers to her thumb in order from index to pinky, and back, a specified number of times.  Different officers may use different alternative FSTs.  If the officer has doubts about a motorist’s claimed infirmity or physical limitations, the officer can administer a combination of standardized and alternative FSTs. 

Keep in mind that, unlike the standardized FSTs, there are no standardized clues, or indicators, in alternative FSTs, and some of these tests presume a level of literacy which may not be present.  For officers, these can be difficult situations, but not insurmountable.  In alternative FSTs cases, the officer needs to paint the picture for the court with different kinds of paints.

Officers are also able to forego the administration of FSTs altogether if they believe attempts by a driver to perform the tests would pose a safety risk to the driver due to the impact of alleged severe impairment by alcohol.  Examples of this would be where the driver falls out of his vehicle when exiting or has a difficult time maintaining his balance while simply standing and dealing with the officer.  Other examples where law enforcement can forego FSTs altogether include where the officer has reasonable concerns about a driver fleeing on foot or for officer safety reasons, where a motorist is especially combative in his or her interactions with the officer during the DWI investigation.         

2.4.4 Refusal to Take Field Sobriety Tests

In some instances, drivers simply refuse to take FSTs or tell the officer they want to consult with their lawyer before agreeing to perform the tests.  Courts are very consistent in their rulings regarding this:  there is no right to consult with a lawyer prior to FSTs.  Armijo v. State ex. rel. Transp. Dept., 105 N.M. 771 (Ct. App. 1987).  Defendants have also argued that allowing testimony at trial of their refusal violates the right against self-incrimination protected by both the federal and New Mexico constitutions.  Again, the courts agree such testimony is admissible.  State v. Wright, 116 N.M. 832 (Ct. App. 1993).  The rationale is that there is no constitutional right to refuse to take FSTs, nor is refusal to take the tests "a testimonial 'statement' within the Fifth Amendment; rather, it is best described as conduct indicating a consciousness of guilt."  Wright, 116 N.M. at 835 (internal quotations omitted). 

A FSTs refusal, however, presents the officer with a dilemma.  What will the officer use to establish probable cause to arrest?  Can the refusal be used for that purpose?  The New Mexico Supreme Court has stated a refusal to submit to breath and/or blood testing is "conduct indicating a consciousness of guilt."  McKay v. Davis, 99 N.M. 29, 32 (1982).  Given that, the officer can rely on observations of the defendant's driving, physical characteristics (speech, eyes, fumbling, etc.) as well as refusal to perform FSTs as the means of establishing probable cause.  If the totality of all of these observations would lead the officer to believe a DWI crime has been committed, then probable cause to arrest exists.  However, a motorist’s refusal to submit to FSTs cannot, by itself, serve as sufficient probable cause for a DWI arrest.

A defendant's refusal to take FSTs at a roadblock was discussed in State v. Sanchez, 2001-NMCA-109.  This case posed the question of how an officer reaches the conclusion of probable cause to arrest when there are no FSTs and no observations of erratic driving.  In Sanchez, the driver was stopped at a roadblock.  The officer observed no erratic or improper driving as the motorist approached the roadblock and stopped.  After being asked for his identification, the driver gave the officer an identification card instead of producing a driver's license.  The officer testified he "noticed that the defendant had a strong odor of alcohol on his breath, and blood-shot, watery eyes."  The defendant also admitted to drinking "two beers."  The officer testified at this point he had "reasonable suspicion, but not probable cause" to think the defendant was DWI.  Sanchez at ¶ 2-3.  He asked the driver to perform FSTs and the driver refused, giving no reason.  The officer testified this refusal raised his reasonable suspicion to probable cause to arrest for DWI.  The driver subsequently refused to take a chemical test under the Implied Consent Act.

The main issue in Sanchez was whether the officer had probable cause to arrest for DWI, absent any observations of impaired driving and absent any FSTs.  After defining probable cause, the court stated an observation of impaired driving is not necessary if the officer can presume DWI based on all other observations.  In this case, the officer actually saw the defendant drive into the roadblock; the officer observed the defendant’s eyes and smelled his breath; and the defendant admitted to drinking beer.  In addition, because refusal to take FSTs can indicate a "consciousness of guilt," see McKay, 99 N.M. at 32, the officer could "logically infer" the defendant refused the FSTs because he knew he was impaired.  Sanchez at ¶ 9.  Relying on this inference of guilt along with the observations of the officer and the defendant's admission, the court concluded there was sufficient evidence for probable cause to arrest the driver for DWI. 

A roadblock case where the defendant refuses all FSTs is probably one of the hardest cases for the prosecution to prove beyond a reasonable doubt.  It is clear from Sanchez that mere refusal to take FSTs is but one factor that, standing alone, is not enough to give the officer probable cause to arrest.  Rather, there must be other independent evidence, such as the officer’s observations of the defendant (slurred speech, fumbling for identification, bloodshot eyes) or the defendant’s admission to drinking, to reach the standard of probable cause to arrest.  Despite the inference of consciousness of guilt based on refusal to take FSTs, there would be insufficient evidence to sustain a conviction without other indicators of DWI being provided to the court. 

2.5   Probable Cause and Arrest

At this point in the process, the police officer has stopped the vehicle based on reasonable suspicion that an offense has been, or is being, committed or has made contact by other means, such as a DWI roadblock or a community caretaker function.   The officer has also observed certain characteristics or behavior of the driver that leads the officer to believe the person may be DWI.  Therefore, the officer has reasonable grounds to conduct a DWI investigation.  Accordingly, the officer has the driver perform FSTs or noted a refusal to do so.  Based on all of this, the officer should have formed an opinion regarding whether the person has been driving while under the influence of intoxicating liquor or drugs.  In legal terms, the officer is developing the necessary “probable cause” to arrest. 

Probable cause to arrest is a higher standard than reasonable suspicion, the standard necessary for a traffic stop.  "Probable cause exists when the facts and circumstances within the officer’s knowledge . . . are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed."   State v. Blea, 88 N.M. 538, 540 (Ct. App. 1975).  In other words, probable cause is established if a reasonable person, lacking the specialized knowledge and perspective of a law enforcement officer, who observed all that the officer observed, would believe the person was DWI.  If after the investigation and FSTs, the officer lacks probable cause, the driver can not be arrested.

If the officer has probable cause, the driver can be validly arrested.  An arrest involves placing the driver into the physical custody of the officer, usually by applying handcuffs and securing the person in the officer's patrol car for transport to the police station or some other place where the breath and/or blood alcohol testing will be administered.

2.6  Conclusion

In summary, at this point in a DWI case before the court, it should be considering the following:

• Did the officer have sufficient reasonable suspicion to stop the vehicle either for an alleged traffic infraction or based on other reasons, such as a sufficiently detailed citizen tip or a valid community caretaker function?

• If the initial contact was at a DWI roadblock, did the prosecution meet its burden to show the roadblock was constitutional and reasonable in its design, set-up and operation, especially in the decisive factors of the role of supervisory authority and the limitations on the discretion of line officers?

• Did the officer observe, document and testify to specific details about the driver during the initial contact which provided reasonable grounds for a DWI investigation?

• Did the officer administer and document FSTs in accordance with his training and testify to the specific observations he made regarding how the driver performed on those tests?

• If no standardized FSTs were given, were alternative FSTs offered?  If no FSTs whatsoever were administered did the officer explain the reason(s) for no such tests?

• Based on the totality of the evidence, did the officer have probable cause to arrest the driver for DWI?