State v. Garcia

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 32,063

5 ROLANDO GARCIA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Charles W. Brown, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender 13 Santa Fe, NM 14 Josephine H. Ford, Assistant Public Defender 15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION

18 VIGIL, Judge. 1 Garcia appeals his conviction for driving while intoxicated. In our notice of

2 proposed summary disposition, we proposed to affirm. Garcia has filed a

3 memorandum in opposition, which we have duly considered. As we are not persuaded

4 by Garcia’s arguments, we affirm.

5 Garcia asserts that the officer lacked probable cause to arrest him for driving

6 while under the influence of alcohol. [DS 8] In this Court’s notice of proposed

7 summary disposition, we proposed to find no error in the conclusion that the officer

8 had probable cause to arrest Garcia. See State v. Ruiz, 120 N.M. 534, 540, 903 P.2d

9 845, 851 (Ct. App. 1995) (holding that there was probable cause to arrest the

10 defendant based on observations that the defendant was weaving and drove for four

11 blocks while the officer was trying to pull him over, had a strong smell of alcohol and

12 glassy eyes, and was unable to perform field sobriety testing), abrogated on other

13 grounds by State v. Martinez, 2007-NMSC-025, 141 N.M. 713, 160 P.3d 894.

14 Garcia has filed a memorandum in opposition in which he argues that there was

15 no probable cause (1) because there were other possible explanations for Garcia’s

16 driving behavior and his performance on the field sobriety tests, (2) because not

17 everyone whose breath smells of alcohol or whose eyes are bloodshot and watery is

18 impaired by alcohol, and (3) because field sobriety tests were designed to assess a

19 person’s blood alcohol content, not impairment. [MIO 7-9] However, as we

20 explained in our notice, the probable cause standard does not require an officer to

2 1 know with absolute certainty that a crime has been committed. See State v. Granillo-

2 Macias, 2008-NMCA-021, ¶ 9, 143 N.M. 455, 176 P.3d 1187. It is sufficient if the

3 officer had an objectively reasonable belief—more than a suspicion, but less than a

4 certainty. Id. And for the reasons discussed in our notice, we hold that the officer had

5 such an objectively reasonable belief that Garcia had been driving while impaired by

6 alcohol.

7 Therefore, for the reasons stated in this Opinion and in our notice of proposed

8 summary disposition, we affirm.

9 IT IS SO ORDERED.

10 _______________________________ 11 MICHAEL E. VIGIL, Judge

12 WE CONCUR:

13 _________________________________ 14 JONATHAN B. SUTIN, Judge

15 _________________________________ 16 TIMOTHY L. GARCIA, Judge