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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 32,780 4 NORMAN EDWARD NABHAN, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 7 Stephen D. Pfeffer, District Judge 8 Gary K. King, Attorney General 9 Margaret E. McLean, Assistant Attorney General 10 Joel Jacobsen, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Trace L. Rabern 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Judge. 182 {1} Defendant Norman Nabhan argues that the State’s nolle prosequi of his charges 1 from magistrate court and subs equent refiling of the charge s in district court (1) was 2 impermissible under State v. Heinsen , 2005-NMSC-035, 138 N.M. 441, 121 P.3d 3 1040, and State v. Savedra , 2010-NMSC-025, 148 N.M. 301, 236 P.3d 20; (2) does 4 not comport with the magistrate court’s si x-month rule; and (3) violated his right to 5 be free from double jeopardy. De fendant also argues that his speedy trial rights were 6 violated and that the district court abusedits discretion when it allowed the State to 7 reopen its case during trial to establish th at, on the day he arrested Defendant, the 8 arresting officer was a commissioned, salaried peace officer who was wearing his 9 uniform at the time of the arrest. We are not persuaded by any of Defendant’s 10 arguments and affirm. 11 BACKGROUND 12 {2} Defendant was charged in magistrate court on February 11, 2011, with driving 13 while under the influence of intoxicating li quor or drugs (DWI), contrary to NMSA 14 1978, Section 66-8-102(A) and (C)(1) (2010), and speeding, contrary to NMSA 1978, 15 Section 66-7-301(B)(2) (2002). On March 18, 2011, Defendant filed a waiver of 16 arraignment in magistrate court, which commenced the running of the six-month rule 17 in magistrate court, pursuant to Rule 6-506(B)(1) NMRA. Approximately five months 18 later, on August 10, 2011, a magistrate court jury was im paneled but not sworn. The 193 jury was instructed to return to court tostart hearing evidence on Monday, September 1 12, 2011. 2 {3} Toward the end of the day on the Friday before trial, the State was informed 3 that the officer who administered Defendant ’s breath test would not be available to 4 testify at trial “due to a recent extension of his sick leave.” On Sunday, September 11, 5 the State left a message for defense counseladvising her that heintended to request 6 a hearing to determine the admissibility of the breath test results without the officer’s 7 testimony. Before the jury was sworn on Monday morning, the State made a formal 8 motion in limine on the issue. After the heari ng, the magistrate court entered an order 9 granting defense counsel’s request to con tinue the trial and extended the six-month 10 rule “no longer than necessary” to allow the parties to submit briefs and for oral 11 argument on the issue of the admissibility of the evidence. One weeklater, the State 12 filed a nolle prosequi in ma gistrate court and on the same day refiled the criminal 13 complaint in district court. 14 {4} The case proceeded to a one-d ay jury trial in district court in January 2013. At 15 the end of the State’s case and after the State rested, defense counsel moved for a 16 directed verdict. Defense counsel argued that pursuant to NMSA 1978, Section 66-8- 17 124(A) (2007), the State had failed to prove that the stop was made by a 18 commissioned, salaried peace officer who was wearing a uniform indicating his 19 official status at the time of the arrest. Th e district court noted that a DVD of the stop 204 that had been played to the jury show ed the officer in full uniform. The court 1 permitted additional evidence regarding the officer’s commission and salary status. 2 The officer was recalled to the stand an d testified that, on the day he arrested 3 Defendant, he was commissioned, salaried , and wearing a unifo rm. Defendant was 4 convicted of DWI, and this appeal followed. 5 DISCUSSION 6 The State’s Filing of the Nolle Prose qui in Magistrate Court and Subsequent 7 Refiling of the Charges in District Court Was Not Improper 8 {5} Defendant raises three claims of error re lated to the procedure and timing of the 9 dismissal in magistrate court, which we takein the following order. He argues that the 10 State’s “procedural maneuveri ng” was impermissible under Heinsenand Savedra , and 11 that the dismissal and refiling violatedhis rights to be free from double jeopardy. 12 Defendant also argues that the State’s ac tion does not comport with the magistrate 13 court’s six-month rule. Whether the State pr operly filed a nolle prosequi is a mixed 14 question of law and fact that we review de novo. State v. Kerby , 2001-NMCA-019, 15 ¶ 15, 130 N.M. 454, 25 P.3d 904. 16 {6} As to the first issue, the State agrees that this case does not involve the 17 suppression of evidence and that, therefore, our Supreme Court’s ruling in Heinsen 18 has no applicability to these proceedings . Accordingly, we need not address 19 Defendant’s argument that the State’s dismi ssal of the magistrate court action was “an 205 improper abuse of the Heinsen ” ruling. We further note that Defendant makes no 1 argument that the State filed the nolle prosequi in order to circumvent the six-month 2 rule or for purpose of delay, and we thus do not consider any issue in that regard. See 3 State v. Bolton , 1997-NMCA-007, ¶ 14, 122 N.M. 831, 932 P.2d 1075 (stating that if 4 a defendant claims the state has filed a nolleprosequi and reinstated charges in order 5 to circumvent the six-month rule, then th e burden is on the state to demonstrate its 6 good faith), abrogated on other grounds by Savedra , 2010-NMSC-025. 7 {7} As to the second issue, we are not pers uaded by Defendant’s argument that “this 8 procedural maneuvering” violated hi s right to be free from double jeopardy. 9 Defendant’s right to be free of double jeopardy is protected by the United States and 10 New Mexico constitutions. See U.S. Const. amend. V; N.M. Const. art. II, § 15. It is 11 well established that in a jury trial, jeopardy attaches when the jury is empaneled and 12 sworn to try the case. State v. Collier , 2013-NMSC-015, ¶ 13, 301 P.3d 370; State v. 13 Angel , 2002-NMSC-025, ¶ 8, 132 N.M. 501, 51 P.3d 1155; State v. Yazzie , 2010- 14 NMCA-028, ¶ 9, 147 N.M. 768, 228 P.3d 1188. Thus, “[i]n a criminal trial, jeopardy 15 attaches at the moment the trier of factis empowered to make any determination 16 regarding the defendant’s innocence or guilt.” Angel , 2002-NMSC-25, ¶ 8. The 17 question here is whether the magistrate court jury was empaneled and sworn for 18 double jeopardy purposes, and we conclude that it was not. 196 {8} In State v. Rackley , 2000-NMCA-027, ¶¶ 2-7, 128 N.M. 761, 998 P.2d 1212, 1 we recognized that trial commences at differe nt stages of a criminal case and that a 2 six-month-rule issue is analytically separate from a constitutional speedy trial issue 3 and, therefore, the inquiry under each issu e differs. We held that, for speedy trial 4 purposes, trial has commenced once jury selection has begun. Id. ¶ 4. Thus, the 5 interests protected by the magistrate court’s six-month rule—the timely disposition 6 of cases and the concern with delay inbringing a defendant to trial caused by 7 dismissal and refiling of charges—are servedif jury selection gets underway before 8 the time expires. Id. On the other hand, jeopardy, which prohibits successive 9 prosecution for the same offense, more appropriately attaches in a jury trial when the 10 jury is empaneled and sworn. Cnty. of Los Alamos v. Tapia , 1990-NMSC-038, ¶ 1 n.1, 11 109 N.M. 736, 790 P.2d 1017, overruled on other grounds by City of Santa Fe v. 12 Marquez , 2012-NMSC-031, 285 P.3d 637. 13 {9} Here, a magistrate court jury was chosen on August 10, 2011, but was not 14 sworn. The jury was instructed to returnto hear the evidence on September 12, 2011. 15 However, on Monday morning when the jury returned but before it was sworn, the 16 State filed a motion in limine. At Defendant’s request, the magistrate judge granted 17 a continuance to allow for briefing and for a hearing on the matter. Because the jury 18 was never sworn and because it never h eard any evidence, double jeopardy did not 197 attach in the magistrate court proceedings, and the State’s dismissal in this case did 1 not violate Defendant’s constitutional rights. 2 {10} Defendant’s argument on the last issue is less than clear. We understand his 3 argument to be that the State violated the requirement in Rule 6-506A(A)(2) NMRA 4 that notice of a voluntary dismissal be filed prior to commencement of trial, where the 5 State filed a nolle prosequi after the jurywas impaneled. In other words, Defendant 6 appears to argue that the deadline for dismi ssal of cases is implicated at the time of 7 jury selection rather than wh en the jury is sworn. We are not persuaded. The district 8 court considered the issue and ruled that the phrase “commencement of the trial” in 9 Rule 6-506A(A)(2) means the moment when je opardy attaches and that, therefore, the 10 State’s dismissal of the case in magistrate court and refiling in district court did not 11 violate the six-month rule. On appeal, Defendant does not reference the district court’s 12 ruling or contend that it was in error, nor does he provide any discussion or authority 13 for his position that a speedy trial analysis applies to Rule 6-506A(A)’s deadline for 14 dismissal, and we therefore a ssume no such authority exists. See In re Adoption of 15 Doe , 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P. 2d 1329 (stating that when a party 16 cites no authority to support an argument, we may assume no such authority exists). 17 Notwithstanding Defendant’s failure to develop this argument, we see no error in the 18 district court’s ruling. 198 {11} Defendant appears to confuse Rule 6- 506 and Rule 6-506A(A) , which implicate 1 different legal principles. Rule 6-506, know n as the six-month rule, reinforces a 2 defendant’s right to a speedy trial, whileRule 6-506A(A) deals with the procedures 3 for voluntary dismissals of a citation or criminal complaint in magi strate court and for 4 refiling thereafter. Given the different purposes of the rules, we c onclude that the only 5 logical reason behind the deadline for dismi ssal contained in Rule 6-506A(A)(2) is to 6 prohibit the unconstitutional refiling of cases in district court. Accordingly, that 7 deadline is defined by double jeopardy rather than speedy trial principles. Our 8 decision is further supported by the fact that , while the date of filing of dismissal 9 would only be a consideration in a speedy trial analysis, that date is dispositive of 10 whether the refiling of charges violates double jeopardy. Thus, under Rule 6- 11 506A(A)(2), the State may dismiss a case and refile in district court any time before 12 jeopardy attaches. As we have discussed above, the principles of speedy trial and 13 double jeopardy define “commencement of trial” differently. And, as we have already 14 decided, there is no double jeopardy violation in this case. The district court’s ruling 15 is affirmed. 16 Defendant Failed to Preserve a Speedy Trial Issue 17 {12} Defendant contends that his constitutional right to a speedy trial was violated 18 because his trial did not occur in the distri ct court until two years after he was first 199 charged. The State argues that Defendant di d not preserve this argument for appeal. 1 We agree with the State. 2 {13} “It is well-settled law that in order topreserve a speedy trial argument [for 3 appellate review, the d]efe ndant must properly raise it in the lower court and invoke 4 a ruling.” State v. Lopez , 2008-NMCA-002, ¶ 25, 143 N.M. 274, 175 P.3d 942. On 5 appeal, this Court will not consider issues that were not raised in the district court 6 unless they involve matters of fundame ntal rights or fundamental error. In re Aaron 7 L. , 2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d 431. Here, although Defendant 8 filed a demand for speedy trial shortly after the case was refiled in district court and 9 another one seven months later, there is no indication that he ever filed a motion, that 10 the district court ever ruled on any motion, or that the court ever had any occasion to 11 apply the four-factor balancing test from Barker v. Wingo , 407 U.S. 514, 530 (1972). 12 See State v. Garza , 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387 (describing 13 the analytical framework for addressing a speedy trial violation, which requires 14 weighing the four Barker factors). Given Defendant’s failure to invoke a ruling below 15 on whether the State violated his constitutional right to a speedy trial, we hold that the 16 issue was not preserved for appellate review. See State v. Rojo , 1999-NMSC-001, ¶¶ 17 50-51, 126 N.M. 438, 971 P.2d 829; see also Lopez , 2008-NMCA-002, ¶ 25. 18 Accordingly, we do not consider it further. 1910 Permitting the State to Reopen Its Case Was Not an Abuse of Discretion 1 {14} Defendant’s last claim challenges the district court’s decision to permit the State 2 to reopen its case in chief toaddress Defendant’s challenge to the sufficiency of the 3 evidence that the State did not prove thatthe arresting officer was commissioned and 4 in uniform at the time of the stop and arrest. See § 66-8-124(A) (“No person shall be 5 arrested for violating the Motor Vehicle Code . . . except by a commissioned, salaried 6 peace officer who, at the time of arrest, is wearing a uniform clearly indicating the 7 peace officer’s official status .”). The decision whether topermit a party to reopen its 8 case in order to present additional evidence is a matter entrusted to the trial court’s 9 sound discretion. State v. Ortiz , 1978-NMCA-074, ¶ 23, 92 N.M. 166, 584 P.2d 1306. 10 “An abuse of discretion occurs when the ru ling is clearly against the logic and effect 11 of the facts and circumstances of the case. We cannot say the trial court abused its 12 discretion by its ruling unless we can char acterize it as clearly untenable or not 13 justified by reason.” State v. Flores , 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 14 641 (internal quotation marks and citation omitted). 15 {15} During the State’s case in chief, OfficerStephen Carroll tes tified that he was 16 a patrolman with the New Mexico State Po lice in Santa Fe, New Mexico. He had been 17 with the State Police for about four-and-one-half years as of the time of trial. On 18 Friday February 12, 2011, at approximately1:55 a.m., Officer Carroll was patrolling 19 northbound Cerrillos Road in Santa Fe. After observing Defendant’s car traveling at 2011 a high rate of speed, the officer activated th e radar that is mounted in his unit. The 1 radar confirmed that the car was speeding, and Officer Carroll started following the 2 vehicle. After following for some distan ce and, after observing Defendant’s inability 3 to fully stop at a red light, Officer Carroll activated his emergency equipment to 4 perform a traffic stop on the vehicle. 5 {16} During the course of Officer Carro ll’s testimony, the State introduced— 6 without objection—Exhibit A, which is a DVD of the traffic stop. The video was then 7 played for the jury, showing Officer Carr oll in his full uniform interacting with 8 Defendant. 9 {17} After the State rested, Defendant move d for a directed verdict, arguing that 10 there was no testimony direc tly establishing that Offi cer Carroll was commissioned 11 or salaried. Defendant also noted that th ere was no testimony establishing that Officer 12 Carroll was in uniform or in a marked vehi cle. The State countered that Defendant’s 13 argument went to the legality of the arrest, not the sufficiency of the evidence 14 supporting the DWI charge, which was the ques tion at issue, and that Officer Carroll’s 15 status as a salaried and commissioned peace o fficer was not an element of the offense 16 of driving while intoxicated. The district court noted that the jurors could see the 17 uniform in the DVD of the stop and allowe d additional evidence on the question of 18 Officer Carroll’s status. Officer Carroll was recalled to the stand and testified that on 19 the day he arrested Defendant, he was co mmissioned, salaried, and wearing a uniform. 2012 {18} At the outset, we note that Defendant’s argument below and on appeal is 1 premised on whether sufficient evidence exis ted establishing that Officer Carroll was 2 a commissioned, salaried peace officer who wa s wearing a uniform at the time of the 3 stop. However, that issue wa s never part of the elements of the offense with which 4 Defendant was charged and ultimately convicted. Indeed, the jury was instructed only 5 that in order to find Defendant guilty, it had to find he operated a motor vehicle on or 6 about February 12, 2001 and, at the time, was under the influence of intoxicating 7 liquor. Thus, the jury never ha d to make any determination as to the status of Officer 8 Carroll’s commission, salary, or uniform. Becau se the issue raised in a motion for 9 directed verdict is whether there is substantial evid ence to support the charge, State 10 v. Romero , 1990-NMCA-114, ¶ 10, 111 N.M. 99, 801 P.2d 681, and because the 11 charge was DWI, the district court did not abuse its discretion in permitting the limited 12 testimony. 13 {19} To the extent that Defendant contends th at the district court’s denial of the 14 motion for directed verdict violated his double jeopardy rights, we disagree. Our 15 Supreme Court has observed that the doubl e jeopardy clause encompasses three 16 protections: “(1) protection against a sec ond prosecution for the same offense after 17 acquittal; (2) protection against a second prosecution for the same offense after 18 conviction; and (3) protection against mu ltiple punishments for the same offense.” 1913 State v. Lynch , 2003-NMSC-020, ¶ 9, 134 N.M. 139, 74 P.3d 73. None of those 1 situations are present in this case, which involved a single trial to verdict. 2 {20} We conclude that the matter was addre ssed to the sound discretion of the court, 3 and there was no abuse of di scretion. Nor was the district court’s ruling barred by 4 double jeopardy concerns. 5 CONCLUSION 6 {21} The decision of the district court is affirmed. 7 {22} IT IS SO ORDERED. 8

__________________________________ 9 LINDA M. VANZI, Judge 10 WE CONCUR: 11

_________________________________ 12 RODERICK T. KENNEDY, Chief Judge 13

_________________________________ 14 M. MONICA ZAMORA, Judge 15