“Birchfield does not prohibit the introduction of evidence of, and commentary on, evidence establishing a defendant’s refusal to take a blood test.” State v. Storey, 2017 N.M. App. LEXIS 75 (Sept. 28, 2017):
P43 Birchfield does not prohibit the introduction of evidence of, and commentary on, evidence establishing a defendant’s refusal to take a blood test. The trial court therefore did not err, fundamentally or otherwise, in allowing the prosecutor’s comments during closing argument regarding Defendant’s refusal to take a blood test. But we also cannot ignore the defense counsel’s comment to the jury during opening statements—that there was some explanation other than consciousness of guilt for Defendant’s refusal to consent to a blood test. A court is “least likely to find [fundamental] error where the defense has opened the door to the prosecutor’s comments by its own argument or reference to facts not in evidence.” State v. Sosa, 2009-NMSC-056, ¶ 33, 147 N.M. 351, 223 P.3d 348 (internal quotation marks and citation omitted); cf. State v. Smith, 2001-NMSC-004, ¶ 5, 130 N.M. 117, 19 P.3d 254 (noting, in a murder trial, that defense counsel stated during opening that the defendant remained in the vehicle and did not participate in the killing; declining to reverse conviction based on the prosecutor’s comment on lack of testimony to bear out counsel’s representation, since the defense invited the argument). “That the prosecutor can refer to the defendant’s failure to testify if the door is opened by the defense, is well supported by case law.” State v. Ruffino, 1980-NMSC-072, ¶ 9, 94 N.M. 500, 612 P.2d 1311. Defense counsel’s comment on Defendant’s refusal to consent in his opening statement constitutes independent grounds for rejecting Defendant’s complaint about the prosecutor’s comments during closing argument.