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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,406 4 WALDEN MINOLI, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Benjamin Chavez, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Benjamin C. Wilson 12 Albuquerque, NM 13 for Appellant 14

MEMORANDUM OPINION 15 HANISEE, Judge. 162 {1} Defendant appeals from an on-record district court judgment affirming 1 Defendant’s conviction for DWI. We issued a calendar notice proposing to affirm. 2 Defendant has responded with a memorandum in opposition. Not persuaded, we 3 affirm. 4 REASONABLE SUSPICION 5 {2} Defendant continues to argue that the officer lacked reasonable suspicion to 6 stop his vehicle. [MIO 2] “In reviewing a [district] court’s denial of a motion to 7 suppress, we observe the dis tinction between factual determinations which are subject 8 to a substantial evidence standard of review and application of law to the facts, which 9 is subject to de novo review. We view the facts in the manner most favorable to the 10 prevailing party and defer to th e district court’s findings of fact if substantial evidence 11 exists to support those findings. Questions of reasonable suspicion are reviewed de 12 novo by looking at the totality of the circumst ances to determine whether the detention 13 was justified.” State v. Hubble , 2009-NMSC-014, ¶ 5, 146 N.M. 70, 206 P.3d 579 14 (alteration, internal quotation marks, and citations omitted). 15 {3} Here, the officer who stoppe d Defendant’s vehicle te stified that Defendant’s 16 vehicle was straddling a marked traffi c lane. [MIO 4] The officer followed 17 Defendant’s vehicle for about a block, at which time Defendant made an abrupt turn 18 into a driveway, and the officer enga ged his emergency equipment. [RP 155-56] 193 Albuquerque Ordinance Section 8-2-1-42 states that “[n]o operator of a vehicle shall 1 fail to keep such vehicle within the boundari es of a marked traffic lane, except when 2 lawfully passing another, making a lawful turning moveme nt or lawfully changing 3 lanes.” [RP 160] 4 {4} Defendant’s docketing statement claimed that the officer did not have 5 reasonable suspicion to stop him based on his driving conduct because it did not pose 6 a safety hazard. We believe that the offi cer could reasonably conclude that Defendant 7 did pose a safety challenge, particularly in light of the c ontinuous nature of the act of 8 straddling the lanes. Neverthe less, even if the officer had been incorrect, his mistake 9 would have been one of fact, and not law. See Hubble , 2009-NMSC-014, ¶¶ 31-32 10 (holding that the officer did not make any mist ake, but even if he did, the mistake was 11 one of fact—determining whether the relative positions of vehicles and their direction 12 of travel constituted a scenario where he may have been affected by the defendant's 13 movement—and that “any mistakes regarding these factual judgments would be 14 classified as mistakes of f act and not mistakes of law”). 15 {5} In his memorandum in opposition, Defendant claims that the officer made a 16 mistake of law, because he believed that the act of turning into the driveway 17 constituted a violation of the ordinance. [M IO 4] However, we conclude that the 18 officer had reasonable suspicion to believe th at the ordinance had been violated prior 194 to the turn, based on the straddling of the lanes by Defendant’s vehicle that occurred 1 a block before the turn, and continued for some time thereafter. 2 EXPERT TESTIMONY 3 {6} Defendant continues to challenge the ex clusion of expert testimony. [DS 26-27] 4 Specifically, Defendant claims that the trial court erred in excluding his expert’s 5 testimony on the “Widmark equation,” although the expert was allo wed to testify with 6 respect to the reliability of the breath mach ine. [DS 27] We review for an abuse of 7 discretion the admission or exclusion of an expert's testimony; however, “the 8 threshold question of whether the . . . court applied the correct evidentiary rule or 9 standard is subject to de novo review.” State v. Torres , 1999-NMSC-010, ¶¶ 27-28, 10 127 N.M. 20, 976 P.2d 20. 11 {7} The trial court considered the admissibility of the expert’s testimony after 12 allowing the parties to voir dire the expertoutside of the presence of the jury. [MIO 13 6] To the extent that Defendant is raisi ng a procedural challenge by claiming that the 14 trial court should have held a pre-trial hearing on the expert testimony, Defendant has 15 not established that a pre-trial hearing would have led to a different result. See In re 16 Ernesto M. , Jr. , 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318, 322 (“An 17 assertion of prejudice is not a showing of prejudice.”). 185 {8} With respect to the excluded testimony, th e expert was allowe d to challenge the 1 reliability of the breath test machine, based on the same theories that would have been 2 used to come up with an alternative BAC num ber, i.e. the weight of the subject, the 3 specific gravity of alcohol, and the blood-water ratio. [RP 157] The district court 4 allowed this testimony, but only excluded the independent BAC number that would 5 be calculated if the machine results were deemed unreliable. [RP 157-58] We 6 conclude that the trial court acted within its discretion, because the jury would only 7 need to rely on the alternative BAC number if it rejected the reliability of the machine 8 results, in which case it woul d have acquitted Defendant. Inother words, the district 9 court could conclude that the alternativ e result was unnecessary, and its exclusion 10 would not prejudice Defendant. 11 {9} For the reasons set forth above, we affirm. 12 {10} IT IS SO ORDERED. 13

14 J. MILES HANSIEE, Judge 15 WE CONCUR: 16

17 JAMES J. WECHSLER, Judge 186 1 M. MONICA ZAMORA, Judge 2