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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,305 4 BRENT R. LAVIGNE, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Jacqueline D. Flores, District Judge 8
Gary K. King, Attorney General 9 Margaret McLean, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Sanchez, Mowrer & Desiderio, PC 13 Frederick M. Mowrer 14 Albuquerque, NM 15 for Appellant 16

MEMORANDUM OPINION 172 KENNEDY, Chief Judge. 1
{1} Brent Lavigne (Defendant) appeals from th e district court’s affirmance of his 2 convictions for careless driving and DWI per se based on his breath test results. [RP 3 182] Our notice proposed to affirm, and Defendant filed a memorandum in 4 opposition. We remain unpers uaded by Defendant’s arguments and therefore affirm. 5
{2} As an initial matter, we comment on defense counsel’s failureto designate the 6 issues in his memorandum in opposition consistent with his designation of the issues 7 in his docketing statement and in our notice. In any future pleadings counsel may file 8 in this Court on the summary calendar, we re quest that he maintain consistency in his 9 designation of the issues. In this Opinion, for consistency and clarity, we designate the 10 issues consistent with the docketing statement and calendar notice. 11
{3} In Issue I, Defendant argues that he was subjected to a de facto arrest. [DS 4; 12 RP 175] Defendant does not challenge our notice’s proposed resolution of this issue. 13 See Frick v. Veazey , 1993-NMCA-119, ¶ 3, 116 N.M . 246, 861 P.2d 287 (providing 14 that failure to respond to a calendar notice constitutes acceptance of the proposed 15 disposition). Therefore, for the reasons exte nsively detailed in our notice, we affirm. 16
{4} In Issue II, Defendant continues to ar gue that the district court “erred in 17 delivering a guilty verdict fo r DWI per se when she found that . . . [D]efendant was 18 not guilty of driving under the influence to the slightest degree and had serious doubts 19 about the sufficiency of the evidence to support probable cause [of driving while 203 under the influence of alcohol to the sli ghtest degree].” [DS 4; MIO 2, 8] As 1 provided in our notice, Sergeant Molander observed Defendant driving and 2 Defendant’s breath test results were .12 and .12. [RP 175] We conclude that these 3 facts support Defendant’s conviction for DWI per se. See NMSA 1978, 4 § 66-8-102(C)(1) (2010) (making it a criminal offense for “a person to drive a vehicle 5 in this state if the person has an alcohol concentration of eight one hundredths or more 6 in the person’s blood or breath within three hours of driving the vehicle and the 7 alcohol concentration results from alcohol consumed before or while driving the 8 vehicle”). Whether or not the facts support a finding that Defendant was driving while 9 under the influence to the slightest degree [D S 3, 4; MIO 10-11] is not determinative 10 given his conviction for DWI per se. 11
{5} In Issue III (designated as Issue I inthe memorandum in opposition), Defendant 12 continues to argue that the State failed tolay a proper foundation for Officer Frazier’s 13 testimony on Defendant’s field sobriety tests. [DS 4; MIO 1-2, 3, 7] In doing so, 14 Defendant asserts that the admission of Offi cer Frazier’s testimony did not satisfy the 15 requirements set forth in State v. Alberico , 1993-NMSC-047, ¶¶ 46-55, 116 N.M. 156, 16 861 P.2d 192 (adopting factors set forth inDaubert v. Merrell Dow Pharm., Inc. , 509 17 U.S. 579 (1993) for evaluating the admissibility of expert testimony involving 18 scientific evidence). [MIO 4] Defendant’s reliance on the Daubert/Alberico standards 19 is misguided because, apart from the Hori zontal Gaze Nystagmus (HGN) test, field 204 sobriety tests are not the product of scientific evidence. Cf. State v. Torres , 1999- 1 NMSC, ¶ 31, 33-34, 127 N.M. 20, 976 P.2d 20 (holding that the HGN test requires 2 scientific knowledge and requiring reliable scientific evidence and testimony 3 concerning the results for their admission intoevidence). In the present case, other 4 than relate that Defendant swayed duri ng the HGN test, [RP 172] Officer Frazier did 5 not testify as to the results of the HGN testing. Moreover, the district court did not 6 rely on the HGN testing when relating the officers’s observations and concluding that 7 they were properly admitted. [RP 179] We further conclude that Defendant’s analogy 8
to State v. Aleman , 2008-NMCA-137, 145 N.M. 79, 194 P.3d 110, is misguided [MIO 9 4-5] because Aleman addresses the admissibility of testimony based upon the DRE 10 protocol, id . ¶ 18, as opposed to an officer’s obs ervations of a suspect’s performance 11 on field sobriety tests. 12
{6} While field sobriety tests are the produc t of an officer’s specialized knowledge 13 and training for purposes of administering field sobriety tests, see State v. Castaneda , 14 2001-NMCA-052, ¶ 31, 130 N.M. 679, 30 P.3d 368, an officer is not precluded, as the 15 officer did in the present case, [MIO 7; RP 174, 170] from testifying about his or her 16 observations of a suspect’s performance on the field sobriety tests. See, e.g., Torres , 17 1999-NMSC-010, ¶ 31 (recognizing that a defendant’s performance on motor skills 18 exercises is one of the self-explanatory tests that reveal common physical 19 manifestations of intoxication); see also State v. Neal , 2008-NMCA-008, ¶ 27, 143 205 N.M. 341, 176 P.3d 330 (recognizing that the fact-finder could rely on common 1 knowledge and experience to determine whether the defendant was under the 2 influence of alcohol when considering th e testimony as to the defendant’s driving 3 behavior, physical condition, admission of drinking, and performance on the field 4 sobriety tests). 5
{7} We further acknowledge De fendant’s argument that the officer could not 6 properly opine about the results of the fiel d sobriety tests for the purpose of proving 7 the specific blood alcohol content of a driver charged with DWI. [MIO 6] See 8 generally State v. Marquez , 2009-NMSC-055, ¶ 18, 147 N.M. 386, 223 P.3d 931 9 (recognizing that the officer’s testimony which correlated the defendant’s performance 10 on the field sobriety tests with a ninety percent statistical probability of a BAC at or 11 above the legal limit was wrongfully admitte d as scientific evidence without first 12 qualifying the officer as an expert and es tablishing the evidentiary reliability of the 13 scientific knowledge), overruled on other groundsby State v. Tollardo , 2012-NMSC14 008, ¶ 37, 275 P.3d 110. However, in the present case the officer did not assign any 15 type of score to the results of the field s obriety tests or testify as to any statistical 16 correlation between Defendant’s performan ce on the tests and the likelihood of a 17 particular breath alcohol content score. [RP 174, 178] Instead, the officer testified 18 as to his observations of Defendant’s perfo rmance on the field sobriety tests, and the 19 district court relied on these observations to conclude that the officer had probable 206 cause to arrest. [M IO 7, 12; RP 174, 179] See, e.g. , State v. Granillo-Macias , 2008- 1 NMCA-021, ¶ 12, 143 N.M. 455, 176 P.3d 1187 (holding that the odor of alcohol, 2 lack of balance at the vehicl e, and failure to satisfactorilyperform field sobriety tests 3 supported an objectively reasonable belief th at the defendant had been driving while 4 intoxicated, and thus constituted probable causeto arrest). And lastly, to the extent 5 Defendant attacks the efficacy of field sobrie ty tests in general to show that a driver 6 may be too impaired to drive, [MIO 6], again, we note that case law considers a 7 driver’s performance on field sobriety tests as generic evidence thatis relevant to a 8 driver’s impairment even if it is not a definitive measure. See, e.g., State v. Lasworth , 9 2002-NMCA-029, ¶ 14, 131 N.M. 739, 42 P.3d 844. We affirm. 10
{8} In conclusion, for the reasons set forth above and in our notice, we affirm. 11
{9} IT IS SO ORDERED. 12

____________________________ ________ 13 RODERICK T. KENNEDY, Chief Judge 14

WE CONCUR: 15

_________________________________ 16 JAMES J. WECHSLER, Judge 177 _________________________________ 1 MICHAEL D. BUSTAMANTE, Judge 2