State v. Wisner

• Court: New Mexico Court of Appeals
• Decided: January 28, 2016
• Docket: 34,974
• Status: Unpublished

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,974

5 DEENA WISNER,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 Dalene Marsh, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender 13 Will O’Connell, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 HANISEE, Judge.

18 {1} Defendant appeals from the district court’s order that affirms her magistrate 1 conviction for aggravated DWI (first offense, .16 or more) and remands for imposition

2 of the magistrate sentence. [RP 100] Our notice proposed to affirm, and Defendant

3 filed a memorandum in opposition. We remain unpersuaded by Defendant’s

4 arguments, and affirm.

5 {2} Defendant continues to challenge the validity of her seizure or stop, specifically

6 arguing that Officer McCoy lacked reasonable suspicion to justify the stop. [DS 3;

7 MIO 1] See generally State v. Walters, 1997-NMCA-013, ¶ 10, 123 N.M. 88, 934

8 P.2d 282 (stating that investigatory stops, which constitute a seizure for Fourth

9 Amendment purposes, require reasonable suspicion).

10 {3} As provided in our notice, Sergeant McCoy was fueling his patrol car at the

11 easternmost gas pump at a Conoco convenience store and gas station. [RP 92] As

12 Defendant approached the station, her vehicle caught Sergeant McCoy’s attention

13 because of the noise it made due to its movement on a flat, right front tire. [RP 92]

14 Defendant’s vehicle veered north off of Aztec to enter the premises of the station a

15 short distance from Sergeant McCoy. [RP 92] Defendant drove directly toward

16 Sergeant McCoy’s police unit located beside the gas pump and stopped her vehicle

17 ten feet short of Sergeant McCoy’s police unit, at which time Sergeant McCoy

18 observed that Defendant was staring blankly ahead with an open mouth. [RP 93] After

19 pausing for one to two seconds, Defendant turned her vehicle sharply to the north to

2 1 clear Sergeant McCoy’s vehicle and pulled into the front of the convenience store,

2 rather than at the air pump located northeast of the convenience store building. [RP

3 93]

4 {4} Based on the foregoing, we agree with the district court that the stop was

5 justified by Sergeant McCoy’s reasonable suspicion that Defendant was driving while

6 impaired and by Defendant’s violation of NMSA 1978, Section 66-3-901 (1985),

7 which prohibits the driving of vehicles without required equipment or that are in an

8 unsafe condition. [DS 3; RP 94] Although Defendant believes this Court places too

9 much emphasis on her “blank stare and slack jaw” [MIO 3], as well as on her chosen

10 course that she drove through the parking lot [MIO 3], we disagree, because when

11 viewed together, they provide reasonable suspicion that Defendant was driving while

12 impaired. [RP 93] See State v. Robbs, 2006-NMCA-061, ¶ 9, 139 N.M. 569, 136 P.3d

13 570 (“Questions of reasonable suspicion are reviewed de novo by looking at the

14 totality of the circumstances to determine whether the detention was justified.”); see

15 also State v. Salas, 2014-NMCA-043, ¶ 15, 321 P.3d 965 (holding that, under the

16 totality of circumstances, the defendant’s erratic driving provided reasonable

17 suspicion that he was driving while impaired); State v. Chapman, 1999-NMCA-106,

18 ¶ 15, 127 N.M. 721, 986 P.2d 1122 (recognizing that a motorist’s behavior and

19 appearance may be considered when addressing the reasonableness of a detention).

3 1 {5} Also, and as discussed in our notice, apart from Defendant’s odd driving

2 behavior and concerning facial demeanor, Defendant’s detention was further justified

3 by Sergeant McCoy’s observation that Defendant was driving a vehicle with a flat tire,

4 in violation of Section 66-3-901 (prohibiting the driving of a vehicle on a highway

5 without required equipment or in an unsafe condition). See State v. Vandenberg, 2003-

6 NMSC-030, ¶ 21, 134 N.M. 566, 81 P.3d 19 (noting that suspicion of violating a

7 traffic law supplies initial justification for stopping a vehicle); State v. Hubble, 2009-

8 NMSC-014, ¶ 8, 146 N.M. 70, 206 P.3d 579 (recognizing that the reasonable

9 suspicion test is an objective one, such that the subjective belief of the officer does not

10 in itself affect the validity of the stop). We acknowledge Defendant’s argument that

11 her driving in the private service station parking lot did not satisfy the requirement in

12 Section 66-3-901 that the prohibited driving be on a “highway”. [MIO 4] See NMSA

13 1978, § 66-1-4.8(B) (1991) (defining “highway” or “street” as “every way or place

14 generally open to the use of the public as a matter of right for the purpose of vehicular

15 travel”). However, although the service station parking lot does not fall within the

16 plain meaning or the statutory definition of “highway,” see State v. Brennan,

17 1998-NMCA-176, ¶ 7, 126 N.M. 389, 970 P.2d 161, as provided in the undisputed

18 [MIO 1] facts set forth in our notice, Defendant’s vehicle veered north off of Aztec

19 to enter the premises of the station. [RP 92] Thus, apart from driving in the parking

4 1 lot, before this Defendant was driving on Aztec, a “highway” as contemplated by

2 Section 66-3-901.

3 {6} To conclude, for the reasons discussed above and in our notice, we hold that the

4 stop was justified by Sergeant McCoy’s reasonable suspicion that Defendant was

5 driving while impaired, as well as by Defendant’s violation of Section 66-3-901. We

6 affirm.

7 {7} IT IS SO ORDERED.

8 9 J. MILES HANISEE, Judge

10 WE CONCUR:

11 12 JAMES J. WECHSLER, Judge

13 14 JONATHAN B. SUTIN, Judge