State v. Romero

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,585

5 ROBERT ROMERO,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Stan Whitaker, Judge

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

11 for Plaintiff-Appellee

12 The Law Offices of the Public Defender 13 Jorge A. Alvarado, Chief Public Defender 14 Sergio Viscoli, Appellate Defender 15 Josephine H. Ford, Assistant Public Defender

16 for Defendant-Appellant 1 MEMORANDUM OPINION

2 HANISEE, Judge.

3 {1} Defendant has appealed from a conviction for DWI. We previously issued a

4 notice of proposed summary disposition in which we proposed to uphold Defendant’s

5 conviction. Defendant has filed a memorandum in opposition. After due consideration,

6 we remain unpersuaded. We therefore affirm.

7 {2} Defendant has raised three issues on appeal. The pertinent background,

8 including the historical facts and relevant analytical framework relative to each of the

9 issues, has previously been set forth at length. We will avoid undue reiteration here,

10 focusing instead on the content of the memorandum in opposition.

11 {3} First, Defendant renews his argument that his arrest was not supported by

12 probable cause. [MIO 10-13] However, the officer’s observations included

13 Defendant’s act of speeding in a school zone, his bloodshot watery eyes, slurred

14 speech, strong odor of alcohol, admission to drinking, and the mixed results of the

15 field sobriety testing. Collectively considered, these observations supplied probable

16 cause for Defendant’s arrest. See, e.g., State v. Sanchez, 2001-NMCA-109, ¶¶ 8-9,

17 131 N.M. 355, 36 P.3d 446 (holding that an officer had probable cause to arrest the

18 defendant for DWI based on strong odor of alcohol, bloodshot watery eyes, admission

19 to drinking, and refusal to submit to field sobriety or chemical testing); State v. Ruiz,

2 1 1995-NMCA-098, ¶¶ 3-4, 24, 120 N.M. 534, 903 P.2d 845 (holding that probable

2 cause existed where police observed the defendant weaving, the defendant admitted

3 to having been drinking, the officer noticed bloodshot, watery eyes, slurred speech,

4 and the odor of alcohol, and the results of the field sobriety tests were mixed),

5 abrogated on other grounds by State v. Martinez, 2007-NMSC-025, 141 N.M. 713,

6 160 P.3d 894. Although Defendant argues that these considerations are not

7 conclusive, particularly in light of countervailing considerations, [MIO 11-12]

8 probable cause requires only a probability of criminal conduct, not certainty. State v.

9 Duffy, 1998-NMSC-014, ¶ 70, 126 N.M. 132, 967 P.2d 807, overruled on other

10 grounds by State v. Tollardo, 2012-NMSC-008 ¶ 37 n.6, 275 P.3d 110. We therefore

11 reject Defendant’s first assertion of error.

12 {4} Second, Defendant continues to challenge the denial of his motion to suppress,

13 based on the arresting officer’s alleged failure to comply with the SLD regulation

14 requiring him to ascertain that Defendant had nothing to eat, drink, or smoke for at

15 least 20 minutes prior to collection of the first breath sample. See 7.33.2.15(B)(2)

16 NMAC. [MIO 13-15] As previously set forth in the notice of proposed summary

17 disposition, the State presented evidence that the officer observed the requisite twenty-

18 minute deprivation period. Although Defendant contends that this evidence should

19 have been rejected based on certain inconsistencies, [MIO 14] the trial court

3 1 reasonably concluded otherwise. See, e.g., State v. Thompson, 2009-NMCA-076,

2 ¶¶ 7, 15-16, 20-21, 146 N.M. 663, 213 P.3d 813 (upholding the admission of BAT

3 results, notwithstanding inconsistencies in the testimony, where the officer explained

4 how he determined that the 20-minute deprivation period had been satisfied); State v.

5 Armijo, 2005-NMCA-010, ¶ 4, 136 N.M. 723, 104 P.3d 1114 (“[I]t is for the

6 fact-finder to evaluate the weight of the evidence, to assess the credibility of the

7 various witnesses, and to resolve any conflicts in the evidence; we will not substitute

8 our judgment as to such matters.”). We therefore reject Defendant’s second assertion

9 of error.

10 {5} Third and finally, Defendant renews his challenge to the sufficiency of the

11 evidence to support his conviction for DWI. [MIO 15-16] As previously described,

12 the State presented evidence that the officer observed a variety of indicia of

13 intoxication, Defendant’s performance on the field sobriety tests was mixed,

14 Defendant admitted that he had consumed alcohol prior to driving, and Defendant’s

15 BATs registered .13 and .12. [MIO 3, 5-6, 9] This evidence was sufficient to support

16 the conviction. See, e.g., State v. Duarte, 2007-NMCA-012, ¶¶ 2, 11, 140 N.M. 930,

17 149 P.3d 1027 (holding in a DWI case that the evidence of guilt was strong, based

18 upon odor of alcohol, bloodshot watery eyes, admission to drinking, unsatisfactory

19 field sobriety test performance, and BAT test results of 0.13). Although Defendant

4 1 urges this Court to re-weigh the evidence, [MIO 16] this we cannot do. See generally

2 State v. Nevarez, 2010-NMCA-049, ¶ 9, 148 N.M. 820, 242 P.3d 387 (“[T]his Court

3 will not re-weigh the credibility of the witnesses at trial or substitute its determination

4 of the facts for that of the jury as long as there is sufficient evidence to support the

5 verdict.”).

6 {6} Accordingly, for the reasons stated in our notice of proposed summary

7 disposition and above, we affirm.

8 {7} IT IS SO ORDERED.

9 10 J. MILES HANISEE, Judge

11 WE CONCUR:

12 13 CYNTHIA A. FRY, Judge

14 15 TIMOTHY L. GARCIA, Judge