This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 34,018 4 ALPHONSE GALLION, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Stan Whitaker, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Santa Fe, NM 13 Josephine H. Ford, Assist ant Appellate Defender 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Judge. 182 {1} Defendant appeals his convictions for aggravated DWI (refusal), possession of 1 marijuana, tampering with evidence, and failing to use required turn signal entered by 2 the metropolitan court and subsequently affi rmed by the district court following an on3 record review. [RP 198, 210] Our notice proposed to affirm and Defendant filed a 4 memorandum in opposition. We remain unpersuaded by Defendant’s arguments and 5 therefore affirm. 6 {2} In issue (A), Defendant continues to argue that Deputy Rael made a mistake of 7 law regarding the requirement that Defe ndant use a turn signal and thus lacked 8 reasonable suspicion for the stop. [DS 13; MIO 12] See generally State v. Anaya , 9 2008-NMCA-020, ¶ 15, 143 N.M. 431, 176 P.3d 1163 (recognizing that “conduct 10 premised totally on a mistake of law cannotcreate the reasonable suspicion needed to 11 make a traffic stop”). This argument wa s not preserved below [RP 201] and, for 12 reasons discussed below, we remain unpers uaded that Defendant is entitled to any 13 relief under a fundamental error review. [MIO 13] 14 {3} As we set forth in our notice, Deputy Rael stopped Defendant based on his 15 belief that Defendant violated NMSA 1978, Section 66-7-325(A) (1978). In pertinent 16 part, this statute provides, “No person shall . . . move right or left upon a roadway 17 unless and until such movement can be madewith reasonable safety. No person shall 18 so turn any vehicle without giving an appropriate signal in the manner hereinafter 19 provided in the event any other traffic may be affected by such movement.” Id. 203 Defendant maintains that a signal wa s not required under Section 66-7-325(A) 1 because he “merged” onto Goff at the intersection, rather than turned. [RP 181, 205; 2 MIO 13] Case law, however, provides that a traffic signal is required by the statute, 3 whether for merging in conjunction with a change of direction or for a turn. See State 4 v. Hubble , 2009-NMSC-014, ¶ 14, 146 N.M. 70, 206 P.3d 579 (stating that the 5 interpretation of Section 66-7-325 “aligns w ith the policy and concerns that the New 6 Mexico Motor Vehicle Division expressed in the New Mexico Driver Manual . . . 7 [which] instructs drivers to signal when they change direction, turn right or left, merge 8 into traffic, or park so that other driver s will have time to react to such movements”). 9 While out-of-state case law may provide thatdrivers are not required to signal under 10 analogous circumstances [MIO 13-14], the rele vant consideration is that New Mexico 11 statutory authority and case law does require a signal. 12 {4} Moreover, as we pointed out in our no tice, while Defendant characterizes his 13 driving, such that he conti nued in his lane of travel via a “merge” lane and did not 14 make a turn at the intersection [RP 205], Deputy Rael conversely testified that 15 Defendant made a sudden turn onto Goff. [D S 2; RP 205] So, evenif we agreed that 16 the act of merging under the circumstances of this case does not require signaling 17 [MIO 13], which we do not, the metropolitan court as fact finder was nonetheless free 18 to reject Defendant’s version and rely instead on the conflicting evidence that 19 Defendant made a sudden turn at the inters ection, thereby requiring the use of a signal. 204 See State v. Roybal , 1992-NMCA-114, ¶ 5, 115 N.M . 27, 846 P.2d 333 (reiterating 1 that appellate courts do not invade the province of the fact finder by second guessing 2 its decisions concerning witness credib ility or the weight of the evidence). 3 {5} Furthermore, we disagree with Defendant’s argument that “other traffic was not 4 affected” [MIO 14] as required by Sec tion 66-7-325(A). Because Deputy Rael waited 5 for Defendant to pass when Defendant instead turned, the Deputy constituted “other 6 traffic” affected by the lack of the turn signal. See, e.g. , Hubble , 2009-NMSC-014, ¶ 7 20 (noting that Section 66-7-325 was intended to have a broad reach such that the 8 purpose of the statute was not only to avoid potential hazards but to alert other traffic 9 to one’s intentions before acting, th ereby providing other drivers with “ample 10 decision-making time in their interactions with drivers who intend to change 11 directions”). 12 {6} In sum, because a signal was required by law and because the fact finder could 13 rely on Deputy Rael’s view of the evidence, we conclude that reasonable suspicion 14 existed to stop Defendant fo r a turn signal violation. See id. ¶ 31 (stating that, because 15 the defendant violated the turn signal statue, the arresting officer did not make a 16 mistake of law or of fact when he made the traffic stop). Because Defendant has failed 17 to show error, any review for fundamental error offers him no relief. See, e.g. , State 18 v. Cabezuela , 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705 (noting that “[t]he 19 first step in reviewing for fundamental erro r is to determine whether an error occurred 205 [and, if so,] we then consider whether the error was fundamental” (internal quotation 1 marks and citation omitted)). We lastly acknowledge Defendant’s argument, as an 2 alternative to his assertion of fundamental error, that counsel was ineffective for not 3 arguing that Deputy Rael made a mistake of law in stopping him. [MIO 13] As 4 provided in our notice and above, however , Defendant’s mistake of law argument 5 lacks merit. For this reason, an ineffectiv e assistance claim premised on the failure to 6 make a mistake of law ar gument also lacks merits. See, e.g. , State v. Sanchez , 1982- 7 NMCA-155, ¶ 10, 98 N.M. 781, 652 P.2d 1232 (“Failure to file a non-meritorious 8 motion cannot be declared ineffective assistance.”). 9 {7} In issue (B), Defendant continues to argue that Deputy Rael lacked probable 10 cause to arrest him for DWI. [DS 13; MI O 16] Because this argument was not raised 11 in metropolitan court [RP 201], we affirm for lack of preservation. See State v. Varela , 12 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (stating that in order to preserve 13 an issue for appeal, the appellant must sp ecifically state the grounds for his objection 14 below so as to alert the trial court as to the claimed error in order to invoke a ruling 15 thereon). We note further that, even if this issue had beenpreserved, affirmance would 16 be merited. In addition to the traffic si gnal violation, Defendant had slurred speech, 17 bloodshot and watery eyes, and smelled slightly of alc ohol. [RP 199; DS 3] Defendant 18 also performed poorly on field sobriety tests (FSTs). [RP 199-200] This evidence 19 provided probable cause for De fendant’s arrest for DWI. See generally State v. 206 Granillo-Macias , 2008-NMCA-021, ¶ 12, 143 N.M. 455, 176 P.3d 1187 (holding that 1 the odor of alcohol, lack of balance at the vehicle, and failure to satisfactorily perform 2 FSTs supported an objectively reasonable belie f that the defendant had been driving 3 while intoxicated and thus constitu ted probable cause to arrest). 4 {8} In issue (C), Defendant continues to ch allenge the sufficien cy of the evidence 5 for his aggravated DWI (refusal) conviction. [DS 13; MIO 17] See NMSA 1978, § 66- 6 8-102(A), (D)(3) (2010); see also State v. Sutphin , 1988-NMSC-031, ¶ 21, 107 N.M. 7 126, 753 P.2d 1314 (providing that in a sufficiency challenge, we view the evidence 8 in the light most favorable to supporting the verdict and resolve all conflicts and 9 indulge all inferences in favor of upholding the verdict). 10 {9} As detailed in our notice, evidence was introduced that Defendant drove, 11 smelled of alcohol, had bloodshot and watery eyes, and slurred speech. [RP 207] In 12 addition, Defendant performed poorly on FSTs [RP 207] as well as on an alternate test 13 [DS 5, 6], and he refused to take the chemi cal test even though he was informed of the 14 consequences of suchrefusal. [RP 200, 207; DS 7] Weconclude that this evidence 15 supports findings that Defendant was under th e influence of drugs to such a degree 16 that he was incapable of safely driving a vehicle and that Defendant refused chemical 17 testing. See State v. Sparks , 1985-NMCA-004, ¶ 6, 102 N.M. 317, 694 P.2d 1382 18 (defining substantial evidence as that evidence which a reasonable person would 19 consider adequate to support a conclusion). 207 {10} To conclude, for the reasons set forth in our notice and discussed above, we 1 affirm. 2 {11} IT IS SO ORDERED. 3

__________________________________ 4 LINDA M. VANZI, Judge 5 WE CONCUR: 6

_________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8

_________________________________ 9 CYNTHIA A. FRY, Judge 10