State v. Montoya

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. 33,168

5 FRANK MONTOYA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Judith K. Nakamura, District Judge

9 Gary K. King, Attorney General 10 Corinna Laszlo-Henry, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender 14 Vicki W. Zelle, Assistant Appellate Defender 15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION 1 KENNEDY, Chief Judge.

2 {1} Frank Montoya (Defendant) appeals the district court’s on-record affirmance

3 of his metropolitan court convictions for driving while intoxicated and careless

4 driving. In our notice of proposed summary disposition, we proposed to affirm.

5 Defendant has filed a memorandum in opposition, which we have duly considered. As

6 we do not find Defendant’s arguments to be persuasive, we affirm.

7 Denial of Montoya’s Motion to Suppress

8 {2} In this Court’s notice of proposed summary disposition, we proposed to hold

9 that the district court did not err in denying Defendant’s motion to suppress because,

10 viewing the facts in the light most favorable to the district court’s ruling, the officer

11 had probable cause to believe that Defendant had been driving while intoxicated. In

12 Defendant’s memorandum in opposition, he provides no new facts or authority that

13 would persuade this Court that its proposed disposition of the issue should not be

14 made. [MIO 20-27] Instead, he divides up the facts known to the officer and argues

15 that each is not sufficient to establish probable cause. [MIO 20-27] However, a

16 probable cause determination looks at all the circumstances known to the officer as

17 a totality. See State v. Nyce, 2006-NMSC-026, ¶ 10, 139 N.M. 647, 137 P.3d 587

18 (“When ruling on probable cause, we deal only in the realm of reasonable

19 probabilities, and look to the totality of the circumstances to determine if probable

20 cause is present.”), overruled on other grounds by State v. Williamson, 2009-NMSC-

2 1 039, 146 N.M. 488, 212 P.3d 376; see also State v. Neal, 2007-NMSC-043, ¶ 28, 142

2 N.M. 176, 164 P.3d 57 (rejecting a “divide-and-conquer analysis in which we view

3 each individual factor or circumstance in a vacuum” when assessing reasonable

4 suspicion (internal quotation marks and citation omitted)). Accordingly, for the

5 reasons stated in our notice, we find no error in the district court’s ruling on the

6 motion to suppress.

7 Sufficiency of the Evidence

8 {3} In our notice of proposed summary disposition, we proposed to hold that,

9 viewing the facts in the light most favorable to the district court’s decision, there was

10 sufficient evidence to support Defendant’s conviction for careless driving. In

11 Defendant’s memorandum in opposition, he continues to argue that the evidence was

12 not sufficient. [MIO 27-32] As he provides no new facts or authority that would

13 persuade this Court that its proposed disposition of this issue was in error, we hold

14 that the evidence was sufficient for the reasons given in our notice.

15 {4} Therefore, for the reasons stated here and in our notice of proposed summary

16 disposition, we affirm.

17 {5} IT IS SO ORDERED.

18 ____________________________________ 19 RODERICK T. KENNEDY, Chief Judge

3 1 WE CONCUR:

2 ________________________ 3 LINDA M. VANZI, Judge

4 ________________________ 5 J. MILES HANISEE, Judge