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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BRENAN ROSS,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Ross
C. Sanchez, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, M. Victoria Wilson, Assistant Appellate Defender, Albuquerque,
NM, for Appellee
Jorge A. Alvarado, Chief Public Defender,
Sergio Viscoli, Assistant Appellate Defender, Santa Fe, NM, for Appellant
MICHAEL D. BUSTAMANTE, Judge. WE CONCUR:
JAMES J. WECHSLER, Judge, RODERICK T. KENNEDY, Judge
AUTHOR: MICHAEL D. BUSTAMANTE
{1} Defendant appeals
her convictions for DWI per se and no headlights entered by the metropolitan
court and subsequently affirmed by the district court following an on-record
review. [RP 28, 74, 86] Our notice proposed to affirm in part, and to reverse
and remand in part. Both parties filed respective memoranda in opposition. We
are not persuaded that our notice was incorrect, and for this reason affirm in
part, and reverse and remand in part.
{2} As an initial
matter, we address the State’s argument raised in its memorandum in opposition
that challenges this Court’s jurisdiction to hear appeals from a district
court’s on-record review of a metropolitan court decision. [State’s MIO, red
clip/6] As the State recognizes [State MIO, red clip/6], this argument was
rejected in
State v. Carroll,
2015-NMCA-033, ¶ 5,
346 P.3d 372 (“[T]his
Court has been vested with jurisdiction over appeals in all criminal actions
with the limited exception of those where a sentence of death or life
imprisonment is imposed. Had the Legislature intended to limit our jurisdiction
to preclude review of the on-record appellate decisions of the district court,
we assume it would have explicitly done so.”),
cert. granted,
2015-NMCERT ___, ___ P.3d ___ (No. 35,063, Jan. 26, 2015), and we decline to
revisit the
Carroll holding.
See State v. Jones,
2010-NMSC-012, ¶ 59,
148 N.M. 1,
229 P.3d 474 (noting that, in the absence of
law to the contrary, a decision from the Court of Appeals is “controlling” even
when certiorari has been granted by the Supreme Court).
{3} In issue (1),
Defendant continues to argue that the officer lacked probable cause to arrest
her for DWI. [DS 14; Defendant MIO, black clip/14]
See generally State
v. Granillo-Macias,
2008-NMCA-021, ¶¶ 7, 9,
143 N.M. 455,
176 P.3d 1187
(setting forth our standard of review and providing that probable cause to
arrest exists “when the facts and circumstances within the officer’s knowledge
are sufficient to warrant the officer to believe that an offense has been or is
being committed”). In pertinent part, Defendant had bloodshot and watery eyes
[RP 81], admitted to drinking alcohol before driving [RP 81], smelled strongly
of alcohol [RP 81], performed SFSTs with mixed results such that she did not
successfully complete all of the SFSTs [RP 80-81], and was driving at night
without her headlights. [RP 80] For the reasons provided in the district
court’s memorandum opinion [RP 79-81] and recognized in our notice, we conclude
that the foregoing provided probable cause to support Defendant’s arrest.
See
generally State v. Neal,
2008-NMCA-008, ¶ 27,
143 N.M. 341,
176 P.3d 330
(recognizing that the fact-finder could rely on common knowledge and experience
to determine whether the defendant was under the influence of alcohol when
considering the testimony as to the defendant’s driving behavior, physical
condition, admission of drinking, and performance on the field sobriety tests).
While Defendant emphasizes her view that “[t]here were no common sense
observations of intoxication such as fumbling, stumbling, slurred words, or
incoherent responses” [Defendant MIO, black clip/16], it was within the
factfinder’s prerogative to consider the other evidence, as related, to assess
that there was probable cause that Defendant was impaired.
See generally
State v. Salas,
1999-NMCA-099, ¶ 13,
127 N.M. 686,
986 P.2d 482
(recognizing that it is for the fact-finder to resolve any conflict in the
testimony of the witnesses and to determine where the weight and credibility
lay);
State v. Garcia,
2009-NMCA-107, ¶ 21,
147 N.M. 150,
217 P.3d 1048
(recognizing that the factfinder is free to reject the defendant’s version of
the events).
{4} Lastly, to the
extent Defendant attacks the efficacy of field sobriety tests in general to
show that a driver may be impaired to drive [Defendant MIO, black clip/16-17;
RP 60], we point out that case law considers a driver’s performance on SFSTs as
generic evidence that is relevant to a driver’s impairment, even if it is not a
definitive measure.
See, e.g., State v. Lasworth,
2002-NMCA-029, ¶ 14,
131 N.M. 739,
42 P.3d 844;
State v. Torres,
1999-NMSC-010, ¶ 31,
127
N.M. 20,
976 P.2d 20, (recognizing that a defendant’s performance on motor
skills exercises is one of the self-explanatory tests that reveal common
physical manifestations of intoxication). Based on the foregoing discussion, we
hold that probable cause supported Defendant’s arrest.
{5} In issue (2),
Defendant argues that the officer’s handing her a phone book failed to satisfy
the requirement that she be given a reasonable opportunity to arrange for an
independent chemical test under NMSA 1978, Section
66-8-109(B) (1993). [DS 15;
Defendant MIO, black clip/17] As provided in our notice and acknowledged by the
State [State MIO, red clip/8],
State v. Chakerian,
2015-NMCA-052, ¶ 29,
348 P.3d 1027,
cert. granted, 2015-NMCERT-005, ___ P.3d ___ (May 11,
2015), supports Defendant’s argument.
See Jones,
2010-NMSC-012, ¶
59 (noting that, in the absence of law to the contrary, a decision from the
Court of Appeals is “controlling” even when certiorari has been granted by the
Supreme Court). Based on
Chakerian, we reverse and remand to the
metropolitan court to determine a remedy under the circumstances of this case.
{6} To conclude, we
hold that we have jurisdiction to consider Defendant’s appeal. We further hold
that probable cause supported Defendant’s arrest, and hold that Defendant was
not given a reasonable opportunity to arrange for an independent chemical test
as required by Section 66-8-109(B). We thus affirm in part, and reverse and
remand in part.
MICHAEL D. BUSTAMANTE, Judge
RODERICK T. KENNEDY, Judge