This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,305
5 BRENT R. LAVIGNE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jacqueline D. Flores, District Judge
9 Gary K. King, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Sanchez, Mowrer & Desiderio, PC 14 Frederick M. Mowrer 15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION 1 KENNEDY, Chief Judge.
2 {1} Brent Lavigne (Defendant) appeals from the district court’s affirmance of his
3 convictions for careless driving and DWI per se based on his breath test results. [RP
4 182] Our notice proposed to affirm, and Defendant filed a memorandum in
5 opposition. We remain unpersuaded by Defendant’s arguments and therefore affirm.
6 {2} As an initial matter, we comment on defense counsel’s failure to designate the
7 issues in his memorandum in opposition consistent with his designation of the issues
8 in his docketing statement and in our notice. In any future pleadings counsel may file
9 in this Court on the summary calendar, we request that he maintain consistency in his
10 designation of the issues. In this Opinion, for consistency and clarity, we designate the
11 issues consistent with the docketing statement and calendar notice.
12 {3} In Issue I, Defendant argues that he was subjected to a de facto arrest. [DS 4;
13 RP 175] Defendant does not challenge our notice’s proposed resolution of this issue.
14 See Frick v. Veazey, 1993-NMCA-119, ¶ 3, 116 N.M. 246, 861 P.2d 287 (providing
15 that failure to respond to a calendar notice constitutes acceptance of the proposed
16 disposition). Therefore, for the reasons extensively detailed in our notice, we affirm.
17 {4} In Issue II, Defendant continues to argue that the district court “erred in
18 delivering a guilty verdict for DWI per se when she found that . . . [D]efendant was
19 not guilty of driving under the influence to the slightest degree and had serious doubts
20 about the sufficiency of the evidence to support probable cause [of driving while
2 1 under the influence of alcohol to the slightest degree].” [DS 4; MIO 2, 8] As
2 provided in our notice, Sergeant Molander observed Defendant driving and
3 Defendant’s breath test results were .12 and .12. [RP 175] We conclude that these
4 facts support Defendant’s conviction for DWI per se. See NMSA 1978,
5 § 66-8-102(C)(1) (2010) (making it a criminal offense for “a person to drive a vehicle
6 in this state if the person has an alcohol concentration of eight one hundredths or more
7 in the person’s blood or breath within three hours of driving the vehicle and the
8 alcohol concentration results from alcohol consumed before or while driving the
9 vehicle”). Whether or not the facts support a finding that Defendant was driving while
10 under the influence to the slightest degree [DS 3, 4; MIO 10-11] is not determinative
11 given his conviction for DWI per se.
12 {5} In Issue III (designated as Issue I in the memorandum in opposition), Defendant
13 continues to argue that the State failed to lay a proper foundation for Officer Frazier’s
14 testimony on Defendant’s field sobriety tests. [DS 4; MIO 1-2, 3, 7] In doing so,
15 Defendant asserts that the admission of Officer Frazier’s testimony did not satisfy the
16 requirements set forth in State v. Alberico, 1993-NMSC-047, ¶¶ 46-55, 116 N.M. 156,
17 861 P.2d 192 (adopting factors set forth in Daubert v. Merrell Dow Pharm., Inc., 509
18 U.S. 579 (1993) for evaluating the admissibility of expert testimony involving
19 scientific evidence). [MIO 4] Defendant’s reliance on the Daubert/Alberico standards
20 is misguided because, apart from the Horizontal Gaze Nystagmus (HGN) test, field
3 1 sobriety tests are not the product of scientific evidence. Cf. State v. Torres, 1999-
2 NMSC, ¶ 31, 33-34, 127 N.M. 20, 976 P.2d 20 (holding that the HGN test requires
3 scientific knowledge and requiring reliable scientific evidence and testimony
4 concerning the results for their admission into evidence). In the present case, other
5 than relate that Defendant swayed during the HGN test, [RP 172] Officer Frazier did
6 not testify as to the results of the HGN testing. Moreover, the district court did not
7 rely on the HGN testing when relating the officers’s observations and concluding that
8 they were properly admitted. [RP 179] We further conclude that Defendant’s analogy
9 to State v. Aleman, 2008-NMCA-137, 145 N.M. 79, 194 P.3d 110, is misguided [MIO
10 4-5] because Aleman addresses the admissibility of testimony based upon the DRE
11 protocol, id. ¶ 18, as opposed to an officer’s observations of a suspect’s performance
12 on field sobriety tests.
13 {6} While field sobriety tests are the product of an officer’s specialized knowledge
14 and training for purposes of administering field sobriety tests, see State v. Castaneda,
15 2001-NMCA-052, ¶ 31, 130 N.M. 679, 30 P.3d 368, an officer is not precluded, as the
16 officer did in the present case, [MIO 7; RP 174, 170] from testifying about his or her
17 observations of a suspect’s performance on the field sobriety tests. See, e.g., Torres,
18 1999-NMSC-010, ¶ 31 (recognizing that a defendant’s performance on motor skills
19 exercises is one of the self-explanatory tests that reveal common physical
20 manifestations of intoxication); see also State v. Neal, 2008-NMCA-008, ¶ 27, 143
4 1 N.M. 341, 176 P.3d 330 (recognizing that the fact-finder could rely on common
2 knowledge and experience to determine whether the defendant was under the
3 influence of alcohol when considering the testimony as to the defendant’s driving
4 behavior, physical condition, admission of drinking, and performance on the field
5 sobriety tests).
6 {7} We further acknowledge Defendant’s argument that the officer could not
7 properly opine about the results of the field sobriety tests for the purpose of proving
8 the specific blood alcohol content of a driver charged with DWI. [MIO 6] See
9 generally State v. Marquez, 2009-NMSC-055, ¶ 18, 147 N.M. 386, 223 P.3d 931
10 (recognizing that the officer’s testimony which correlated the defendant’s performance
11 on the field sobriety tests with a ninety percent statistical probability of a BAC at or
12 above the legal limit was wrongfully admitted as scientific evidence without first
13 qualifying the officer as an expert and establishing the evidentiary reliability of the
14 scientific knowledge), overruled on other grounds by State v. Tollardo, 2012-NMSC-
15 008, ¶ 37, 275 P.3d 110. However, in the present case the officer did not assign any
16 type of score to the results of the field sobriety tests or testify as to any statistical
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,305
5 BRENT R. LAVIGNE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jacqueline D. Flores, District Judge
9 Gary K. King, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Sanchez, Mowrer & Desiderio, PC 14 Frederick M. Mowrer 15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION 1 KENNEDY, Chief Judge.
2 {1} Brent Lavigne (Defendant) appeals from the district court’s affirmance of his
3 convictions for careless driving and DWI per se based on his breath test results. [RP
4 182] Our notice proposed to affirm, and Defendant filed a memorandum in
5 opposition. We remain unpersuaded by Defendant’s arguments and therefore affirm.
6 {2} As an initial matter, we comment on defense counsel’s failure to designate the
7 issues in his memorandum in opposition consistent with his designation of the issues
8 in his docketing statement and in our notice. In any future pleadings counsel may file
9 in this Court on the summary calendar, we request that he maintain consistency in his
10 designation of the issues. In this Opinion, for consistency and clarity, we designate the
11 issues consistent with the docketing statement and calendar notice.
12 {3} In Issue I, Defendant argues that he was subjected to a de facto arrest. [DS 4;
13 RP 175] Defendant does not challenge our notice’s proposed resolution of this issue.
14 See Frick v. Veazey, 1993-NMCA-119, ¶ 3, 116 N.M. 246, 861 P.2d 287 (providing
15 that failure to respond to a calendar notice constitutes acceptance of the proposed
16 disposition). Therefore, for the reasons extensively detailed in our notice, we affirm.
17 {4} In Issue II, Defendant continues to argue that the district court “erred in
18 delivering a guilty verdict for DWI per se when she found that . . . [D]efendant was
19 not guilty of driving under the influence to the slightest degree and had serious doubts
20 about the sufficiency of the evidence to support probable cause [of driving while
2 1 under the influence of alcohol to the slightest degree].” [DS 4; MIO 2, 8] As
2 provided in our notice, Sergeant Molander observed Defendant driving and
3 Defendant’s breath test results were .12 and .12. [RP 175] We conclude that these
4 facts support Defendant’s conviction for DWI per se. See NMSA 1978,
5 § 66-8-102(C)(1) (2010) (making it a criminal offense for “a person to drive a vehicle
6 in this state if the person has an alcohol concentration of eight one hundredths or more
7 in the person’s blood or breath within three hours of driving the vehicle and the
8 alcohol concentration results from alcohol consumed before or while driving the
9 vehicle”). Whether or not the facts support a finding that Defendant was driving while
10 under the influence to the slightest degree [DS 3, 4; MIO 10-11] is not determinative
11 given his conviction for DWI per se.
12 {5} In Issue III (designated as Issue I in the memorandum in opposition), Defendant
13 continues to argue that the State failed to lay a proper foundation for Officer Frazier’s
14 testimony on Defendant’s field sobriety tests. [DS 4; MIO 1-2, 3, 7] In doing so,
15 Defendant asserts that the admission of Officer Frazier’s testimony did not satisfy the
16 requirements set forth in State v. Alberico, 1993-NMSC-047, ¶¶ 46-55, 116 N.M. 156,
17 861 P.2d 192 (adopting factors set forth in Daubert v. Merrell Dow Pharm., Inc., 509
18 U.S. 579 (1993) for evaluating the admissibility of expert testimony involving
19 scientific evidence). [MIO 4] Defendant’s reliance on the Daubert/Alberico standards
20 is misguided because, apart from the Horizontal Gaze Nystagmus (HGN) test, field
3 1 sobriety tests are not the product of scientific evidence. Cf. State v. Torres, 1999-
2 NMSC, ¶ 31, 33-34, 127 N.M. 20, 976 P.2d 20 (holding that the HGN test requires
3 scientific knowledge and requiring reliable scientific evidence and testimony
4 concerning the results for their admission into evidence). In the present case, other
5 than relate that Defendant swayed during the HGN test, [RP 172] Officer Frazier did
6 not testify as to the results of the HGN testing. Moreover, the district court did not
7 rely on the HGN testing when relating the officers’s observations and concluding that
8 they were properly admitted. [RP 179] We further conclude that Defendant’s analogy
9 to State v. Aleman, 2008-NMCA-137, 145 N.M. 79, 194 P.3d 110, is misguided [MIO
10 4-5] because Aleman addresses the admissibility of testimony based upon the DRE
11 protocol, id. ¶ 18, as opposed to an officer’s observations of a suspect’s performance
12 on field sobriety tests.
13 {6} While field sobriety tests are the product of an officer’s specialized knowledge
14 and training for purposes of administering field sobriety tests, see State v. Castaneda,
15 2001-NMCA-052, ¶ 31, 130 N.M. 679, 30 P.3d 368, an officer is not precluded, as the
16 officer did in the present case, [MIO 7; RP 174, 170] from testifying about his or her
17 observations of a suspect’s performance on the field sobriety tests. See, e.g., Torres,
18 1999-NMSC-010, ¶ 31 (recognizing that a defendant’s performance on motor skills
19 exercises is one of the self-explanatory tests that reveal common physical
20 manifestations of intoxication); see also State v. Neal, 2008-NMCA-008, ¶ 27, 143
4 1 N.M. 341, 176 P.3d 330 (recognizing that the fact-finder could rely on common
2 knowledge and experience to determine whether the defendant was under the
3 influence of alcohol when considering the testimony as to the defendant’s driving
4 behavior, physical condition, admission of drinking, and performance on the field
5 sobriety tests).
6 {7} We further acknowledge Defendant’s argument that the officer could not
7 properly opine about the results of the field sobriety tests for the purpose of proving
8 the specific blood alcohol content of a driver charged with DWI. [MIO 6] See
9 generally State v. Marquez, 2009-NMSC-055, ¶ 18, 147 N.M. 386, 223 P.3d 931
10 (recognizing that the officer’s testimony which correlated the defendant’s performance
11 on the field sobriety tests with a ninety percent statistical probability of a BAC at or
12 above the legal limit was wrongfully admitted as scientific evidence without first
13 qualifying the officer as an expert and establishing the evidentiary reliability of the
14 scientific knowledge), overruled on other grounds by State v. Tollardo, 2012-NMSC-
15 008, ¶ 37, 275 P.3d 110. However, in the present case the officer did not assign any
16 type of score to the results of the field sobriety tests or testify as to any statistical
17 correlation between Defendant’s performance on the tests and the likelihood of a
18 particular breath alcohol content score. [RP 174, 178] Instead, the officer testified
19 as to his observations of Defendant’s performance on the field sobriety tests, and the
20 district court relied on these observations to conclude that the officer had probable
5 1 cause to arrest. [MIO 7, 12; RP 174, 179] See, e.g., State v. Granillo-Macias, 2008-
2 NMCA-021, ¶ 12, 143 N.M. 455, 176 P.3d 1187 (holding that the odor of alcohol,
3 lack of balance at the vehicle, and failure to satisfactorily perform field sobriety tests
4 supported an objectively reasonable belief that the defendant had been driving while
5 intoxicated, and thus constituted probable cause to arrest). And lastly, to the extent
6 Defendant attacks the efficacy of field sobriety tests in general to show that a driver
7 may be too impaired to drive, [MIO 6], again, we note that case law considers a
8 driver’s performance on field sobriety tests as generic evidence that is relevant to a
9 driver’s impairment even if it is not a definitive measure. See, e.g., State v. Lasworth,
10 2002-NMCA-029, ¶ 14, 131 N.M. 739, 42 P.3d 844. We affirm.
11 {8} In conclusion, for the reasons set forth above and in our notice, we affirm.
12 {9} IT IS SO ORDERED.
13 ____________________________________ 14 RODERICK T. KENNEDY, Chief Judge
15 WE CONCUR:
16 _________________________________ 17 JAMES J. WECHSLER, Judge
6 1 _________________________________ 2 MICHAEL D. BUSTAMANTE, Judge