This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om 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. 33,793 4 STERLING LaVAIL, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Judith Nakamura, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Law Offices of the Public Defender 12 Jorge A. Alvarado, Chief Public Defender 13 Vicki W. Zelle, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 SUTIN, Judge. 182 {1} Defendant Sterling LaVail filed a docketing statement, appealing from the 1 district court’s affirmance of the metr opolitan court convicti ons for driving while 2 under the influence of intoxicating liquor/drugs (DWI), first offense, contrary to 3 NMSA 1978, Section 66-8-102 (2010); speedi ng, contrary to NMSA 1978, Section 4 66-7-301 (2002); and no registration on demand, contrary to NMSA 1978, Section 66- 5 3-13 (1978, amended 2013). [DS 2, 12; RP 3, 10, 80] In this Court’s notice of 6 proposed summary disposition, we proposed to affirm Defendant’s convictions and 7 adopt the memorandum opinion of the districtcourt. [CN 2] Defendant filed a 8 memorandum in opposition. We have given due consideration to the memorandum in 9 opposition, and remaining unpersuaded, weaffirm Defendant’s convictions. 10 Probable Cause for DWI Arrest 11 {2} Defendant continues to argue that the district court erred in determining that the 12 officer had probable cause to arrest him for per se DWI when Defendant’s 13 performance on the field sobriety tests produced strong and compelling evidence to 14 allay the officer’s reasonable suspicion. [MIO 14-24] The majority of the arguments 15 in Defendant’s memorandum in opposition havebeen addressed by this Court in its 16 notice of proposed disposition and/or the district court’s memorandum opinion this 17 Court proposed to adopt in our calendar noti ce, so we refer Defendant to the responses 18 therein. [ See RP 84-85; CN] 193 {3} With regard to Defendant’s contention that his performance on the field 1 sobriety tests should have allayed the officer’s reasonable suspicion [MIO 16-19], we 2 are unpersuaded. Defendant has identified the factors d eemed by the trial court as 3 establishing probable cause: Defendant was stopped for speeding on a city street after 4 midnight; the officer observed bloodshot, watery eyes, thick-tongued speech, and a 5 strong odor of alcohol coming from Defendan t; when the officer first asked Defendant 6 if he had been drinking, Defendant admitted to drinking, even if he later denied it; 7 Defendant delayed in exiting his vehicle; and Defendant had mixed results on his field 8 sobriety tests—performing certain tests without error and others with error. [MIO 18- 9 19, 20; see also RP 85] 10 {4} “Each case stands on its own facts; there is no one set of circumstances required 11 for probable cause.” State v. Sanchez , 2001-NMCA-109, ¶ 12, 131 N.M. 355, 36 P.3d 12 446. “A police officer has probable cause when facts and circumstances within the 13 officer’s knowledge, or about which the officer has reasonably trustworthy 14 information, are sufficient to warrant an officer of reasonable caution to believe that 15 an offense is being committed or has been committed.” Id. ¶ 6. We agree with the 16 district court that the above-identified factors provide ample support for Defendant’s 17 arrest for DWI and are sufficient to meet the probable cause requirements. See, e.g. , 18 State v. Ruiz , 1995-NMCA-098, ¶¶ 3-4, 24, 120 N.M. 534, 903 P.2d 845 (holding that 194 probable cause existed where police observed the defendant speeding and weaving, 1 the defendant admitted to having been dri nking, the officer noticed bloodshot, watery 2 eyes, slurred speech, and a smell of alcohol, and the results of the field sobriety tests 3 were mixed), overruled on other grounds by State v. Martinez , 2007-NMSC-025, 141 4 N.M. 713, 160 P.3d 894; cf. Sanchez , 2001-NMCA-109, ¶¶ 8-9 (holding that an 5 officer had probable cause to arrest the defendant for DWI based on strong odor of 6 alcohol, bloodshot watery eyes, admission to drinking, and refusal to submit to field 7 sobriety or chemical testing); State v. Soto , 2007-NMCA-077, ¶¶ 32-34, 142 N.M. 32, 8 162 P.3d 187 (holding that there was suffici ent evidence to support a conviction for 9 DWI even though no field sobriety tests wereconducted, given thatthe defendant had 10 bloodshot, watery eyes, slurred speech and a very strong odor of alcohol on his breath, 11 the defendant admitted drinki ng, and one of the officers observed several empty cans 12 of beer where the defendant had been), overruled on other grounds by State v. 13 Tollardo , 2012-NMSC-008, 275 P.3d 110. 14 {5} Although Defendant insists that his purported “flawless” performance on 15 certain of the field sobriety tests should have wholly allayed the officer’s concerns, 16 Defendant cites no authorityfor this proposition so we assume no such authority 17 exists. See Curry v. Great Nw. Ins. Co. , 2014-NMCA-031, ¶ 28, 320 P.3d 482 18 (“Where a party cites no authority to s upport an argument, we may assume no such 195 authority exists.”). Further, the officer was required to consider all the facts and 1 circumstances available to him, not simp ly Defendant’s performance on two to three 2 of the field sobriety tests. See Sanchez , 2001-NMCA-109, ¶ 6. Based on the totality 3 of circumstances, we hold that Defendant’s speeding after midnight; bloodshot, 4 watery eyes, thick-tongued speech, and a strong odor of alcohol; initial admission of 5 drinking; delay in exiting his vehicle; and mixed results on his field sobriety tests 6 established probable cause for the o fficer to arrest Defendant for DWI. 7 {6} We note that, at times, Defendant seem s to confuse the issue and conflate 8 probable cause required for DWI with suffi cient evidence required for a conviction 9 of per se DWI. [ See, e.g. , MIO 24] We have already established that there was 10 probable cause to arrest Defendant for DW I. Defendant has not cited any authority 11 for the proposition that the officer must have had probable cause to arrest Defendant 12 specifically for DWI per se (driving with a blood-alcohol level at or above the legal 13 limit), as opposed to non- per se DWI (driving while impaired by alcohol to the 14 slightest degree), so we assume no such authority exists. See Curry , 2014-NMCA15 031, ¶ 28. Moreover, Defendant has not argued on appeal that there was insufficient 16 evidence to convict him of per se DWI. [ See generallyMIO] Nevertheless, we note 17 for Defendant’s clarification that his breath card, indicating a blood-alcohol level 186 above the legal limit, is sufficient to convict Defendant of per se DWI. See § 66-8- 1 102(A), (C)(1). 2 Admission of the Breath Card 3 {7} Defendant continues to arguethat the State laid aninadequate foundation for 4 admission of the breath card becau se the officer failed to correctly establish what the 5 intoxilyzer measures and failed to correctlyestablish the require d deprivation period. 6 [MIO 24-26] In this Court’s notice of proposed summary disposition, we proposed 7 to adopt the district court’s thorough and well-reasoned memorandum opinion in 8 response to Defendant’s arguments. [CN 2; see also RP 85-89] In his memorandum 9 in opposition, Defendant has failed to raise any new arguments or issues to convince 10 us to reconsider our adoption of the district court’s memorandum opinion. 11 Accordingly, we conclude that the district court did not err in admitting the breath 12 card. 13 {8} To the extent Defendant contends that our statement in State v. Onsurez , 2002- 14 NMCA-082, ¶ 17, 132 N.M. 485, 51 P.3d 528, requires us to conclude that the breath 15 card should not be admitted, we are unpersuaded. [MIO 26] In Onsurez , we stated 16 that “showing the correct measurement ratio [is] part of the foundation for admitting 17 the test results.” Id. However, our reason for stating this was an explanation of why 18 the prosecution’s failure to show the unit of measurement for the breath test was not 197 fatal to the prosecution’s case. See id. Indeed, we cited authority that states that the 1 purpose behind filtering the evidence presented to the fact-finder is “to ensure that the 2 fact[ ]finder’s conclusions are not based on improper considerations or evidence.” Id. 3 (internal quotation marks and citation omitted). The officer’s misspoken explanation 4 of what the breath-alcohol concentration is measured in—“grams per alcohol per 210 5 liters,” as opposed to “grams of alc ohol per 210 liters of breath”—still conveyed 6 sufficient information to the fact-finder, the metropolitan court judge who was not 7 likely to base her conclusion on “improper considerations or evidence.” Id. (internal 8 quotation marks and citation omitted). We re iterate that Defendant ’s continued focus 9 on the inconsequential differences in definition places form over substance. 10 {9} Accordingly, for the reasons set forth inour calendar notice and herein, and for 11 the reasons articulated in the memorandum opinion of the districtcourt, we affirm 12 Defendant’s convictions. 13 {10} IT IS SO ORDERED. 14

__________________________________ 15 JONATHAN B. SUTIN, Judge 16 WE CONCUR: 17

__________________________________ 18 MICHAEL D. BUSTAMANTE, Judge 19

__________________________________ 20 M. MONICA ZAMORA, Judge 21