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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 33,793

5 STERLING LaVAIL,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

8 Judith Nakamura, District Judge

9 Gary K. King, Attorney General

10 Santa Fe, NM

11 for Appellee

12 Law Offices of the Public Defender

13 Jorge A. Alvarado, Chief Public Defender

14 Vicki W. Zelle, Assistant Appellate Defender

15 Santa Fe, NM

16 for Appellant

17 MEMORANDUM OPINION

18 SUTIN, Judge.
2

1 {1} Defendant Sterling LaVail filed a docketing statement, appealing from the

2 district court’s affirmance of the metropolitan court convictions for driving while

3 under the influence of intoxicating liquor/drugs (DWI), first offense, contrary to

4 NMSA 1978, Section 66-8-102 (2010); speeding, contrary to NMSA 1978, Section

5 66-7-301 (2002); and no registration on demand, contrary to NMSA 1978, Section 66-

6 3-13 (1978, amended 2013). [DS 2, 12; RP 3, 10, 80] In this Court’s notice of

7 proposed summary disposition, we proposed to affirm Defendant’s convictions and

8 adopt the memorandum opinion of the district court. [CN 2] Defendant filed a

9 memorandum in opposition. We have given due consideration to the memorandum in

10 opposition, and remaining unpersuaded, we affirm Defendant’s convictions.

11 Probable Cause for DWI Arrest

12 {2} Defendant continues to argue that the district court erred in determining that the

13 officer had probable cause to arrest him for per se DWI when Defendant’s

14 performance on the field sobriety tests produced strong and compelling evidence to

15 allay the officer’s reasonable suspicion. [MIO 14-24] The majority of the arguments

16 in Defendant’s memorandum in opposition have been addressed by this Court in its

17 notice of proposed disposition and/or the district court’s memorandum opinion this

18 Court proposed to adopt in our calendar notice, so we refer Defendant to the responses

19 therein. [See RP 84-85; CN] 
3

1 {3} With regard to Defendant’s contention that his performance on the field

2 sobriety tests should have allayed the officer’s reasonable suspicion [MIO 16-19], we

3 are unpersuaded. Defendant has identified the factors deemed by the trial court as

4 establishing probable cause: Defendant was stopped for speeding on a city street after

5 midnight; the officer observed bloodshot, watery eyes, thick-tongued speech, and a

6 strong odor of alcohol coming from Defendant; when the officer first asked Defendant

7 if he had been drinking, Defendant admitted to drinking, even if he later denied it;

8 Defendant delayed in exiting his vehicle; and Defendant had mixed results on his field

9 sobriety tests—performing certain tests without error and others with error. [MIO 18-

10 19, 20; see also RP 85]

11 {4} “Each case stands on its own facts; there is no one set of circumstances required

12 for probable cause.” State v. Sanchez, 2001-NMCA-109, ¶ 12, 131 N.M. 355, 36 P.3d

13 446. “A police officer has probable cause when facts and circumstances within the

14 officer’s knowledge, or about which the officer has reasonably trustworthy

15 information, are sufficient to warrant an officer of reasonable caution to believe that

16 an offense is being committed or has been committed.” Id. ¶ 6. We agree with the

17 district court that the above-identified factors provide ample support for Defendant’s

18 arrest for DWI and are sufficient to meet the probable cause requirements. See, e.g.,

19 State v. Ruiz, 1995-NMCA-098, ¶¶ 3-4, 24, 120 N.M. 534, 903 P.2d 845 (holding that
4

1 probable cause existed where police observed the defendant speeding and weaving,

2 the defendant admitted to having been drinking, the officer noticed bloodshot, watery

3 eyes, slurred speech, and a smell of alcohol, and the results of the field sobriety tests

4 were mixed), overruled on other grounds by State v. Martinez, 2007-NMSC-025, 141

5 N.M. 713, 160 P.3d 894; cf. Sanchez, 2001-NMCA-109, ¶¶ 8-9 (holding that an

6 officer had probable cause to arrest the defendant for DWI based on strong odor of

7 alcohol, bloodshot watery eyes, admission to drinking, and refusal to submit to field

8 sobriety or chemical testing); State v. Soto, 2007-NMCA-077, ¶¶ 32-34, 142 N.M. 32,

9 162 P.3d 187 (holding that there was sufficient evidence to support a conviction for

10 DWI even though no field sobriety tests were conducted, given that the defendant had

11 bloodshot, watery eyes, slurred speech and a very strong odor of alcohol on his breath,

12 the defendant admitted drinking, and one of the officers observed several empty cans

13 of beer where the defendant had been), overruled on other grounds by State v.

14 Tollardo, 2012-NMSC-008, 275 P.3d 110.

15 {5} Although Defendant insists that his purported “flawless” performance on

16 certain of the field sobriety tests should have wholly allayed the officer’s concerns,

17 Defendant cites no authority for this proposition so we assume no such authority

18 exists. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482

19 (“Where a party cites no authority to support an argument, we may assume no such
5

1 authority exists.”). Further, the officer was required to consider all the facts and

2 circumstances available to him, not simply Defendant’s performance on two to three

3 of the field sobriety tests. See Sanchez, 2001-NMCA-109, ¶ 6. Based on the totality

4 of circumstances, we hold that Defendant’s speeding after midnight; bloodshot,

5 watery eyes, thick-tongued speech, and a strong odor of alcohol; initial admission of

6 drinking; delay in exiting his vehicle; and mixed results on his field sobriety tests

7 established probable cause for the officer to arrest Defendant for DWI.

8 {6} We note that, at times, Defendant seems to confuse the issue and conflate

9 probable cause required for DWI with sufficient evidence required for a conviction

10 of per se DWI. [See, e.g., MIO 24] We have already established that there was

11 probable cause to arrest Defendant for DWI. Defendant has not cited any authority

12 for the proposition that the officer must have had probable cause to arrest Defendant

13 specifically for DWI per se (driving with a blood-alcohol level at or above the legal

14 limit), as opposed to non-per se DWI (driving while impaired by alcohol to the

15 slightest degree), so we assume no such authority exists. See Curry, 2014-NMCA16 031, ¶ 28. Moreover, Defendant has not argued on appeal that there was insufficient

17 evidence to convict him of per se DWI. [See generally MIO] Nevertheless, we note

18 for Defendant’s clarification that his breath card, indicating a blood-alcohol level
6

1 above the legal limit, is sufficient to convict Defendant of per se DWI. See § 66-8-

2 102(A), (C)(1).

3 Admission of the Breath Card

4 {7} Defendant continues to argue that the State laid an inadequate foundation for

5 admission of the breath card because the officer failed to correctly establish what the

6 intoxilyzer measures and failed to correctly establish the required deprivation period.

7 [MIO 24-26] In this Court’s notice of proposed summary disposition, we proposed

8 to adopt the district court’s thorough and well-reasoned memorandum opinion in

9 response to Defendant’s arguments. [CN 2; see also RP 85-89] In his memorandum

10 in opposition, Defendant has failed to raise any new arguments or issues to convince

11 us to reconsider our adoption of the district court’s memorandum opinion.

12 Accordingly, we conclude that the district court did not err in admitting the breath

13 card.

14 {8} To the extent Defendant contends that our statement in State v. Onsurez, 2002-

15 NMCA-082, ¶ 17, 132 N.M. 485, 51 P.3d 528, requires us to conclude that the breath

16 card should not be admitted, we are unpersuaded. [MIO 26] In Onsurez, we stated

17 that “showing the correct measurement ratio [is] part of the foundation for admitting

18 the test results.” Id. However, our reason for stating this was an explanation of why

19 the prosecution’s failure to show the unit of measurement for the breath test was not
7

1 fatal to the prosecution’s case. See id. Indeed, we cited authority that states that the

2 purpose behind filtering the evidence presented to the fact-finder is “to ensure that the

3 fact[ ]finder’s conclusions are not based on improper considerations or evidence.” Id.

4 (internal quotation marks and citation omitted). The officer’s misspoken explanation

5 of what the breath-alcohol concentration is measured in—“grams per alcohol per 210

6 liters,” as opposed to “grams of alcohol per 210 liters of breath”—still conveyed

7 sufficient information to the fact-finder, the metropolitan court judge who was not

8 likely to base her conclusion on “improper considerations or evidence.” Id. (internal

9 quotation marks and citation omitted). We reiterate that Defendant’s continued focus

10 on the inconsequential differences in definition places form over substance.

11 {9} Accordingly, for the reasons set forth in our calendar notice and herein, and for

12 the reasons articulated in the memorandum opinion of the district court, we affirm

13 Defendant’s convictions.

14 {10} IT IS SO ORDERED.

15 __________________________________

16 JONATHAN B. SUTIN, Judge

17 WE CONCUR:

18 __________________________________

19 MICHAEL D. BUSTAMANTE, Judge

20 __________________________________

21 M. MONICA ZAMORA, Judge