The Refused Breath Test at 0210
At 0210 on a Tuesday, Officer Reyes stops a silver sedan on Cerrillos Road after it crosses the fog line three times and brakes abruptly at a green light. The driver, Maria S., 34, has bloodshot, watery eyes, slurred speech, and fumbles for her license. She admits to 'two beers' about an hour earlier. On the horizontal gaze nystagmus test she shows six of six clues; on the walk-and-turn she shows four of eight; on the one-leg stand three of four. A preliminary breath test reads 0.14, but Reyes knows that result is not the evidentiary test. After the implied-consent admonition, Maria refuses the breath test. Reyes arrests her. The magistrate court is closed, but the on-call judge can be reached by telephone. Reyes's shift ends in 40 minutes. A hospital 12 minutes away has a phlebotomist on duty. Apart from normal alcohol dissipation, there is no emergency. Reyes wonders whether refusal alone lets him skip a warrant.
1. Was the arrest supported by probable cause before the PBT? Explain the weight of each category of evidence.
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Yes. Probable cause existed before the PBT. The stop was supported by observed lane violations and erratic braking. After the stop, Reyes had personalized, observed evidence: bloodshot and watery eyes, slurred speech, fumbling, an admission of drinking, and performance on three validated SFSTs (6/6 HGN, 4/8 walk-and-turn, 3/4 one-leg stand). Those facts would lead a reasonable officer to believe Maria was driving while impaired. The PBT reading of 0.14 is only a preliminary screening result; under New Mexico law it may be used to establish probable cause but is not the evidentiary chemical test. The arrest does not depend on the PBT or on refusal. Refusal is relevant to the implied-consent administrative process and may support an aggravated-DWI charge, but it is not needed for probable cause.
2. May Reyes order a blood draw without a warrant because Maria refused the breath test? Analyze under the Fourth Amendment and New Mexico implied-consent law.
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No. Under Birchfield v. North Dakota, a breath test may be administered as a search incident to a lawful DWI arrest, but a blood draw is more intrusive and generally requires a warrant, valid consent, or a recognized exception. Missouri v. McNeely rejects the idea that alcohol's natural dissipation is a per se exigency. New Mexico's implied-consent statute does not create consent by refusal; refusal triggers civil consequences such as revocation and can support an aggravated-DWI charge, but it does not authorize a forcible warrantless blood draw. Because the magistrate is available by phone and the hospital is 12 minutes away, Reyes should seek a telephonic warrant. He should not order a warrantless draw merely because his shift is ending; shift change is an administrative inconvenience, not an exigency.
3. If Reyes seeks a telephonic warrant, what must the affidavit and process include, and what should he document at the hospital?
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The affidavit should state the officer's training and experience, the driving observations, the personal indicators, the SFST results and scoring, the PBT result and its limited purpose, the arrest, the implied-consent admonition, the refusal, and the specific test sought (blood) and the place and person to perform it. It must be sworn or affirmed, recorded, and presented to a judge authorized to issue warrants; if done by telephone, follow the rule for recording and filing the call and the judge's signature. At the hospital, document the time, the phlebotomist's identity and qualifications, the kit used, the draw site, the sealing and initialing of the kit, and the chain of custody. Use only the force reasonably necessary; a blood draw is a search, so restrain only as needed and preserve the scene and BWC.