State v. Miller

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 29,992 10 JAMES MILLER, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Neil Candelaria, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Santa Fe, NM

19 Linda Yen, Assistant Public Defender 20 Albuquerque, NM

21 for Appellant 22 MEMORANDUM OPINION 23 FRY, Chief Judge.

1 Defendant appeals his conviction for DWI. We proposed to affirm in a calendar 2 notice. Defendant has responded to that notice with a memorandum in opposition. 3 We have carefully considered Defendant’s arguments, but we are not persuaded that 4 affirmance is not the correct disposition in this case. We therefore affirm. 5 Defendant continues to claim that the evidence was insufficient to support his 6 conviction for DWI, and there was no probable cause to arrest him for DWI. As 7 discussed in our calendar notice, Defendant was convicted of DWI based on evidence 8 showing that he was driving under the influence of alcohol. State v. Sanchez, 2001- 9 NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d 446 (Ct. App. 2001) (explaining that a person 10 drives under the influence when he or she is “less able to the slightest degree, either 11 mentally or physically, or both, to exercise the clear judgment and steady hand 12 necessary to handle a vehicle with safety” to the driver and the public (internal 13 quotation marks and citation omitted)). We also noted that an arrest is lawful if the 14 person arrested commits a crime in the presence of the arresting officer, when the 15 circumstances observed by the officer and the common knowledge of the officer 16 provide probable cause to believe a crime is being committed or reasonable grounds 17 to suspect that a crime is being committed. State v. Ochoa, 2008-NMSC-023, ¶ 11, 18 143 N.M. 749, 182 P.3d 130; City of Roswell v. Mayer, 78 N.M. 533, 534, 433 P.2d 19 757, 758 (1967).

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1 Here, the officer heard a call that a loud motorcycle was driving in the area, and 2 then observed Defendant driving his motorcycle while intentionally swerving across 3 three lanes, accelerating, revving his engine, losing traction, and attempting to spin his 4 tires. [MIO 1] When the officer activated his lights, Defendant pulled into a business 5 lot, and his front tire hit the curb as he came to a stop. [MIO 1-2] The officer noticed 6 that Defendant smelled of alcohol, had bloodshot and watery eyes, and had slurred 7 speech. Defendant stated that he had been at a friend’s house where he drank four 8 whiskeys. [MIO 2] Defendant did not indicate that he had any injuries, conditions, 9 or limitations that would affect his performance on field sobriety tests. [MIO 3] 10 Defendant did not perform well on the walk-and-turn test or the backward-count test. 11 Although Defendant argued that other factors could cause the conditions observed by 12 the officer and that other factors could affect Defendant’s performance on the field 13 sobriety tests, the question is whether the trial court’s “decision is supported by 14 substantial evidence, not whether the trial court could have reached a different 15 conclusion.” See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 16 P.2d 318; see also State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 17 (“Contrary evidence supporting acquittal does not provide a basis for reversal because 18 the jury is free to reject [the d]efendant’s version of the facts.”). 19 We hold that the observations by the officer provided reasonable grounds for 20 the officer to suspect that Defendant was committing a crime. We also hold that,

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1 based on the officer’s observations, there was sufficient evidence to show that 2 Defendant was driving his motorcycle under the influence of alcohol in that he was 3 “less able to the slightest degree, either mentally or physically, or both, to exercise the 4 clear judgment and steady hand necessary” to handle his motorcycle with safety to 5 himself or to the public. Sanchez, 2001-NMCA-109, ¶ 6. 6 For the reasons discussed above and in our calendar notice, we affirm 7 Defendant’s conviction for DWI. 8 IT IS SO ORDERED.

9 10 CYNTHIA A. FRY, Chief Judge

11 WE CONCUR:

12 13 ROBERT E. ROBLES, Judge

14 15 TIMOTHY L. GARCIA, Judge