per se rule in New Mexico

2007See id. ¶ 21 (citing State v. Johnson, 2004-NMSC-029, ¶ 7 , 136 N.M. 348 , 98 P.3d 998 (“[U]nder Crawford, because Defendant did not have an opportunity to cross-examine [the witness], the admission of [his] statement constituted a per se violation of Defendant’s Sixth Amendment right of confrontation.”)).

2007See id. ¶ 21 (citing State v. Johnson, 2004-NMSC-029, ¶ 7 , 136 N.M. 348 , 98 P.3d 998 (“[U]nder Crawford, because Defendant did not have an opportunity to cross-examine [the witness], the admission of [his] statement constituted a per se violation of Defendant’s Sixth Amendment right of confrontation.”)).

2015This supplies adequate 3 grounds for the denial of the motion to suppress. 4 {9} As an alternative basis for its ultimate conclusion, the district court also noted 5 that insofar as there was probable cause to arrest, the exclusionary rule should not 6 apply. [RP 125-26] See State v. Slayton, 2009-NMSC-054, ¶¶ 1, 33 , 147 N.M. 340 , 7 223 P.3d 337 (holding that a state actor’s unauthorized seizure of a person suspected 8 of committing a crime is not a per se violation of the Fourth Amendment; rather, the 9 pertinent question is whether the state actor had probable cause to believe that the 10

2015This supplies adequate 3 grounds for the denial of the motion to suppress. 4 {9} As an alternative basis for its ultimate conclusion, the district court also noted 5 that insofar as there was probable cause to arrest, the exclusionary rule should not 6 apply. [RP 125-26] See State v. Slayton, 2009-NMSC-054, ¶¶ 1, 33 , 147 N.M. 340 , 7 223 P.3d 337 (holding that a state actor’s unauthorized seizure of a person suspected 8 of committing a crime is not a per se violation of the Fourth Amendment; rather, the 9 pertinent question is whether the state actor had probable cause to believe that the 10

2006In Lujan, 112 N.M. at 350 , 815 P.2d at 646 , we declined to apply a per se rule regarding time spent engaging in plea negotiations.

2006In Lujan, 112 N.M. at 350 , 815 P.2d at 646 , we declined to apply a per se rule regarding time spent engaging in plea negotiations.

2020We also recognized both the inevitability of some delay in testing, and the difficulty of “[e]xtrapolating backward in time[,] . . . even for experts,” suggesting that our Legislature “could choose to create a statutory inference that a 0.08 BAC within a specified time, say two or three hours after driving, is prima facie evidence of a per se violation of Section 66-8-102(C), which a defendant could then try to rebut.” Baldwin, 2001-NMCA-063, ¶¶ 17, 19 ; see State v. Christmas, 2002-NMCA-020, ¶ 22 , 131 N.M. 591 , 40 P.3d 1035 (stating that “it would be preferable if the [L]egislature would pr

2020We also recognized both the inevitability of some delay in testing, and the difficulty of “[e]xtrapolating backward in time[,] . . . even for experts,” suggesting that our Legislature “could choose to create a statutory inference that a 0.08 BAC within a specified time, say two or three hours after driving, is prima facie evidence of a per se violation of Section 66-8-102(C), which a defendant could then try to rebut.” Baldwin, 2001-NMCA-063, ¶¶ 17, 19 ; see State v. Christmas, 2002-NMCA-020, ¶ 22 , 131 N.M. 591 , 40 P.3d 1035 (stating that “it would be preferable if the [L]egislature would pr

2020We also recognized both the inevitability of some delay in testing, and the difficulty of “[e]xtrapolating backward in time[,] . . . even for experts,” suggesting that our Legislature “could choose to create a statutory inference that a 0.08 BAC within a specified time, say two or three hours after driving, is prima facie evidence of a per se violation of Section 66-8-102(C), which a defendant could then try to rebut.” Baldwin, 2001-NMCA-063, ¶¶ 17, 19 ; see State v. Christmas, 2002-NMCA-020, ¶ 22 , 131 N.M. 591 , 40 P.3d 1035 (stating that “it would be preferable if the [L]egislature would pr

2008Given the inevitability of delay between the time of driving and the time of BAC testing, Christmas, 2002-NMCA-020, ¶ 23 , 131 N.M. 591 , 40 P.3d 1035 , as well as our ease law’s recognition of the difficulty of extrapolating backward in time, even for experts, Baldwin, 2001-NMCA-063, ¶ 17 , 130 N.M. 705 , 30 P.3d 394 , the Court of Appeals had twice called on the Legislature “to create a statutory inference that a 0.08 BAC within a specified time, say two or three hours after driving, is prima facie evidence of a per se violation of Section 66-8-102(0), which a defendant could then try to reb

2018In State v. Gilbert, 1982-NMSC-095 , 98 N.M. 530 , 650 P.2d 814 , the defendant was arrested at 4:30 a.m. following an incident involving gunshots fired at a store and was advised of his Miranda rights.

2018In State v. Gilbert, 1982-NMSC-095 , 98 N.M. 530 , 650 P.2d 814 , the defendant was arrested at 4:30 a.m. following an incident involving gunshots fired at a store and was advised of his Miranda rights.

2023See Lara, 1975-NMCA-095 , ¶¶ 6, 10; see also State v. Baca, 1976- 20 NMSC-015, ¶ 5, 89 N.M. 204 , 549 P.2d 282 (“Any reference to the defendant’s 12 1 silence by the state, if it lacks significant probative value, constitutes plain error 2 under [Rule 11-103(E)] of the New Mexico Rules of Evidence.

2023See Lara, 1975-NMCA-095 , ¶¶ 6, 10; see also State v. Baca, 1976- 20 NMSC-015, ¶ 5, 89 N.M. 204 , 549 P.2d 282 (“Any reference to the defendant’s 12 1 silence by the state, if it lacks significant probative value, constitutes plain error 2 under [Rule 11-103(E)] of the New Mexico Rules of Evidence.

2023See McFarland Land & Cattle Inc., 2021-NMCA-057, ¶ 10 .

2023See McFarland Land & Cattle Inc., 2021-NMCA-057, ¶ 10 .

2017See Schmerber v. California , 384 U.S. 757 , 771-72, 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966) (concluding under the circumstances of that case that a warrantless blood alcohol test (BAT) was justified under the exigent circumstances exception and therefore not an unreasonable search); see also McNeely , 133 S.Ct. at 1557 (clarifying Schmerber and holding that the exigency exception for warrantless blood testing must be applied on a case-by-case basis, reasoning that the natural metabolism and thus dissipation of alcohol in the bloodstream does not, by itself, justify a per se rule); cf. Neville ,

2017See Schmerber v. California , 384 U.S. 757 , 771-72, 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966) (concluding under the circumstances of that case that a warrantless blood alcohol test (BAT) was justified under the exigent circumstances exception and therefore not an unreasonable search); see also McNeely , 133 S.Ct. at 1557 (clarifying Schmerber and holding that the exigency exception for warrantless blood testing must be applied on a case-by-case basis, reasoning that the natural metabolism and thus dissipation of alcohol in the bloodstream does not, by itself, justify a per se rule); cf. Neville ,

2017See Schmerber v. California, 384 U.S. 757, 771-72 (1966) (concluding under the circumstances of that case that a warrantless blood alcohol test (BAT) was justified under the exigent circumstances exception and therefore not an unreasonable search); see also McNeely, 133 S. Ct. at 1557 (clarifying Schmerber and holding that the exigency exception for warrantless blood testing must be applied on a case- by-case basis, reasoning that the natural metabolism and thus dissipation of alcohol in the bloodstream does not, by itself, justify a per se rule); cf. Neville, 459 U.S. at 559 (answering in the

2017See Schmerber v. California , 384 U.S. 757 , 771-72, 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966) (concluding under the circumstances of that case that a warrantless blood alcohol test (BAT) was justified under the exigent circumstances exception and therefore not an unreasonable search); see also McNeely , 133 S.Ct. at 1557 (clarifying Schmerber and holding that the exigency exception for warrantless blood testing must be applied on a case-by-case basis, reasoning that the natural metabolism and thus dissipation of alcohol in the bloodstream does not, by itself, justify a per se rule); cf. Neville ,

2015See State v. Lewis, 2008-NMCA-070, ¶ 27 , 9 144 N.M. 156 , 184 P.3d 1050 . 10 {2} After a de novo appeal to the district court, Defendant was subsequently 11 acquitted of the per se violation and convicted of the alternative provision in 12 Subsection (A), which requires a finding of impairment to the slightest degree. 13 Defendant now contends that double jeopardy and jurisdictional principles prevented 14 the State from arguing impaired DWI to the jury after the magistrate court failed to 15 convict him on that theory in the first trial.

2015See State v. Lewis, 2008-NMCA-070, ¶ 27 , 9 144 N.M. 156 , 184 P.3d 1050 . 10 {2} After a de novo appeal to the district court, Defendant was subsequently 11 acquitted of the per se violation and convicted of the alternative provision in 12 Subsection (A), which requires a finding of impairment to the slightest degree. 13 Defendant now contends that double jeopardy and jurisdictional principles prevented 14 the State from arguing impaired DWI to the jury after the magistrate court failed to 15 convict him on that theory in the first trial.

2013See Riverside Publ’g Co. v. Mercer Publ'g LLC, 829 F. Supp. 2d 1017, 1020 (W.D.

2012See Riverside Publ’g Co. v. Mercer Publ’g LLC, 829 F. Supp. 2d 1017, 1020 (W.D.

2011Indeed, Subsection (A) provides only that “[i]t is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.” Therefore, regardless of whether a defendant is ultimately convicted of a per se violation or under the impaired to the slightest degree standard, the plain meaning of Section 66-2-108 “clearly provides that the only thing necessary to convict a person of DWI is proof that the defendant was driving a vehicle either under the influence of intoxicating liquor or while he had a certain percentage of alcohol in his blood.” Harrison, 115 N

2011Indeed, Subsection (A) provides only that “[i]t is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.” Therefore, regardless of whether a defendant is ultimately convicted of a per se violation or under the impaired to the slightest degree standard, the plain meaning of Section 66-2-108 “clearly provides that the only thing necessary to convict a person of DWI is proof that the defendant was driving a vehicle either under the influence of intoxicating liquor or while he had a certain percentage of alcohol in his blood.” Harrison, 115 N

2020We also recognized both the inevitability of some delay in testing, and the difficulty of “[e]xtrapolating backward in time[,] . . . even for experts,” suggesting that our Legislature “could choose to create a statutory inference that a 0.08 BAC within a specified time, say two or three hours after driving, is prima facie evidence of a per se violation of Section 66-8-102(C), which a defendant could then try to rebut.” Baldwin, 2001-NMCA-063, ¶¶ 17, 19 ; see State v. Christmas, 2002-NMCA-020, ¶ 22 , 131 N.M. 591 , 40 P.3d 1035 (stating that “it would be preferable if the [L]egislature would pr

2008Given the inevitability of delay between the time of driving and the time of BAC testing, Christmas, 2002-NMCA-020, ¶ 23 , 131 N.M. 591 , 40 P.3d 1035 , as well as our ease law’s recognition of the difficulty of extrapolating backward in time, even for experts, Baldwin, 2001-NMCA-063, ¶ 17 , 130 N.M. 705 , 30 P.3d 394 , the Court of Appeals had twice called on the Legislature “to create a statutory inference that a 0.08 BAC within a specified time, say two or three hours after driving, is prima facie evidence of a per se violation of Section 66-8-102(0), which a defendant could then try to reb

2017We disagree and next consider the 14 State’s contention that defective taillights could constitute a violation of Section 66- 15 3-801(A) even absent a per se violation of Section 66-3-805. 16 Section 66-3-801(A) 17 {13} The State directs us to Munoz, where this Court construed Section 66-3-801(A) 18 as “providing three alternative ways that a vehicle would be covered” by the statute: 19 (1) it is in such unsafe condition as to endanger any person, (2) it does 20 not contain those parts or is not at all times equipped with such lamps 10 1 and other equipment in proper condition and adjustment

2017See Hubble , 2009-NMSC-014 , ¶ 9, 206 P.3d 579 (explaining that "[t]he determination of whether [an officer] had reasonable suspicion to make [a] traffic stop does not hinge on whether [the d]efendant actually violated the underlying ... statute"); Moseley , 2014-NMCA-033 , ¶ 15, 320 P.3d 517 ; Munoz , 1998-NMCA-140 , ¶ 9, 965 P.2d 349 .

2017See Schmerber v. California, 384 U.S. 757, 771-72 (1966) (concluding under the circumstances of that case that a warrantless blood alcohol test (BAT) was justified under the exigent circumstances exception and therefore not an unreasonable search); see also McNeely, 133 S. Ct. at 1557 (clarifying Schmerber and holding that the exigency exception for warrantless blood testing must be applied on a case- by-case basis, reasoning that the natural metabolism and thus dissipation of alcohol in the bloodstream does not, by itself, justify a per se rule); cf. Neville, 459 U.S. at 559 (answering in the

2017See Schmerber v. California , 384 U.S. 757 , 771-72, 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966) (concluding under the circumstances of that case that a warrantless blood alcohol test (BAT) was justified under the exigent circumstances exception and therefore not an unreasonable search); see also McNeely , 133 S.Ct. at 1557 (clarifying Schmerber and holding that the exigency exception for warrantless blood testing must be applied on a case-by-case basis, reasoning that the natural metabolism and thus dissipation of alcohol in the bloodstream does not, by itself, justify a per se rule); cf. Neville ,

2014See State v. Walters, 2007- 2 NMSC-050, ¶¶ 23-24, 142 N.M. 644 , 168 P.3d 1068 (recognizing that the admission 3 of incriminating statements of non-testifying co-defendants at the defendant’s trial 4 was a per se violation of the defendant’s right to confront the witnesses against him). 5 {13} When the State called Salazar to testify, he refused to do so notwithstanding the 6 district court’s finding that he did not have a Fifth Amendment right to remain silent 7 and notwithstanding the court’s order to testify.

2014See State v. Walters, 2007- 2 NMSC-050, ¶¶ 23-24, 142 N.M. 644 , 168 P.3d 1068 (recognizing that the admission 3 of incriminating statements of non-testifying co-defendants at the defendant’s trial 4 was a per se violation of the defendant’s right to confront the witnesses against him). 5 {13} When the State called Salazar to testify, he refused to do so notwithstanding the 6 district court’s finding that he did not have a Fifth Amendment right to remain silent 7 and notwithstanding the court’s order to testify.

2011Pickett, 2009-NMCA-077, ¶ 6 , 146 N.M. 655 , 213 P.3d 805 . {8} Defendant primarily argues that this Court, in State v. Dutchover, 85 N.M. 72 , 509 P.2d 264 (Ct.App.1973), held that DWI, under the impaired to the slightest degree standard, requires the defendant to assume the risk of intoxication in order to convict and, therefore, the metropolitan court erred in finding that DWI is a strict liability crime in this case.

2011Pickett, 2009-NMCA-077, ¶ 6 , 146 N.M. 655 , 213 P.3d 805 . {8} Defendant primarily argues that this Court, in State v. Dutchover, 85 N.M. 72 , 509 P.2d 264 (Ct.App.1973), held that DWI, under the impaired to the slightest degree standard, requires the defendant to assume the risk of intoxication in order to convict and, therefore, the metropolitan court erred in finding that DWI is a strict liability crime in this case.

2025We reiterate, 5 however, that they do not establish a per se rule, as “[t]here are no ‘bright-line, hard- 6 and-fast rules’ for determining probable cause.” State v. Evans, 2009-NMSC-027 , ¶ 7 11, 146 N.M. 319 , 210 P.3d 216 (citation omitted); see, e.g., State v. Whitley, 1999- 8 NMCA-155, ¶ 3, 128 N.M. 403 , 993 P.2d 117 (concluding, notwithstanding first- 9 hand-observation evidence, that “the affidavit did not contain sufficient information 10 of ongoing criminal activities and the information was therefore stale”).

2025We reiterate, 5 however, that they do not establish a per se rule, as “[t]here are no ‘bright-line, hard- 6 and-fast rules’ for determining probable cause.” State v. Evans, 2009-NMSC-027 , ¶ 7 11, 146 N.M. 319 , 210 P.3d 216 (citation omitted); see, e.g., State v. Whitley, 1999- 8 NMCA-155, ¶ 3, 128 N.M. 403 , 993 P.2d 117 (concluding, notwithstanding first- 9 hand-observation evidence, that “the affidavit did not contain sufficient information 10 of ongoing criminal activities and the information was therefore stale”).

2023Id. ¶¶ 46-49; see Martinez, 2021-NMSC-002, ¶ 72 (“departing from the Manson [reliability standard] and adopting in its place a per se rule of exclusion” for “unnecessarily suggestive, police-arranged, pretrial identifications”). {22} The State timely appealed, and we granted certiorari.