1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date. 

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

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. No. 30,364

10 JANELLE LEEWAY,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

13 Charles W. Brown, District Judge

14 Gary K. King, Attorney General

15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender

18 Santa Fe, NM

19 Lisa Bozone, Assistant Appellate Defender

20 Albuquerque, NM

21 for Appellant

22 MEMORANDUM OPINION

23 SUTIN, Judge.
2

1 Defendant appeals from a district court on-the-record affirmance of her

2 metropolitan court convictions for driving while intoxicated (DWI) and careless

3 driving. We issued a calendar notice proposing to affirm. Defendant has responded

4 with a memorandum in opposition. After due consideration, we affirm.

5 Motion to Suppress

6 Defendant continues to challenge the metropolitan court’s denial of her motion

7 to suppress statements that she made at the scene. [MIO 7] We will not overturn the

8 trial court’s ruling on a motion to suppress if it is supported by substantial evidence.

9 See State v. Galloway, 116 N.M. 8, 9, 859 P.2d 476, 477 (Ct. App. 1993),

10 misapplication of federal law recognized in State v. Cardenas-Alvarez, 2001-NMSC11 017, ¶ 9, 130 N.M. 386, 25 P.3d 225 (recognizing misapplication of federal law, but

12 acknowledging Galloway as “sound approach” under New Mexico Constitution). In

13 making this determination, we review the facts in the light most favorable to the trial

14 court’s ruling. Id. Nevertheless, we conduct a de novo review on the ultimate issue

15 concerning the reasonableness of an alleged constitutional violation. State v. Flores,

16 1996-NMCA-059, ¶ 6, 122 N.M. 84, 920 P.2d 1038. 

17 Defendant specifically contends that she should have received Miranda

18 warnings prior to being questioned. [MIO 7] In order to establish that an individual

19 is in custody for Miranda purposes, there must be a showing that the individual “lacks
3

1 the freedom to leave to an extent equal to formal arrest” and is “in an isolated

2 environment completely controlled by law enforcement officials. ” State v. Javier M.,

3 2001-NMSC-030, ¶ 18, 131 N.M. 1, 33 P.3d 1 (internal quotation marks and citation

4 omitted). 

5 Here, Officer Sanchez testified that he was dispatched to the scene of a car

6 accident. [MIO 2] Another officer had arrived first and had taken a bottle from the

7 vehicle. [MIO 2] Officer Sanchez testified that there were signs of an accident, with

8 damage to the vehicle. [DS 3] Officer Sanchez testified that he came into contact

9 with Defendant and observed that she had bloodshot, watery eyes and smelled of

10 alcohol. [MIO 3] The officer began to describe his conversation with Defendant, at

11 which time Defendant raised the Miranda objection. [MIO 3] Defendant’s objection

12 relied on Officer Sanchez’s testimony that Defendant was not free to leave during this

13 questioning. [MIO 3] The district court ruled that New Mexico law is clear that no

14 Miranda warnings were necessary during this initial phase of an officer’s

15 investigation. [MIO 3] 

16 We agree with the analysis set forth by the district court in its memorandum

17 opinion affirming the metropolitan court’s ruling. [RP 113] Specifically, Defendant

18 was not handcuffed and had not been placed in the police car. [RP 113] Cf. State v.

19 Wilson, 2007-NMCA-111, ¶¶ 18-19, 142 N.M. 737, 169 P.3d 1184 (observing that
4

1 when an officer uses handcuffs, puts the suspect in a police vehicle, or uses force an

2 investigatory detention can amount to custody triggering the need for Miranda

3 warnings). Unlike the scenario discussed in Wilson, the facts in the present case do

4 not establish “that [s]he was restrained to the degree associated with a formal arrest.”

5 Id. ¶ 35. Instead, this case is similar to State v. Greyeyes, 105 N.M. 549, 551, 734

6 P.2d 789, 791 (Ct. App. 1987), where this Court stated:

7 General on-the-scene questioning or other general questioning of citizens

8 in the fact-finding process is not considered custodial, and a person in

9 these circumstances need not be informed of his rights before being

10 questioned. The mere fact that police may have focused their

11 investigation on a defendant at the time of the interview does not raise

12 questioning to a level required to warrant Miranda warnings.

13 We are not persuaded by Defendant’s attempt to distinguish Greyeyes. [MIO

14 9-10] The fact that the accident occurred at 4:05 in the morning and that there were

15 indications that it may have resulted from impairment did not provide the need to

16 Mirandize Defendant at this investigatory phase. Cf. State v. Snell, 2007-NMCA-113,

17 ¶¶ 6, 15-17, 142 N.M. 452, 166 P.3d 1106 (distinguishing Greyeyes where a defendant

18 was not simply questioned while standing in the open, but had been questioned after

19 being placed in a police officer’s vehicle). 

20 Sufficiency of the Evidence

21 Defendant continues to claim that the evidence was insufficient to support her

22 conviction for DWI. [MIO 12] A sufficiency of the evidence review involves a
5

1 two-step process. Initially, the evidence is viewed in the light most favorable to the

2 verdict. Then the appellate court must make a legal determination of “whether the

3 evidence viewed in this manner could justify a finding by any rational trier of fact that

4 each element of the crime charged has been established beyond a reasonable doubt.”

5 State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation

6 marks and citation omitted).

7 In order to support her conviction, the evidence had to show that Defendant

8 drove a vehicle under the influence of intoxicating liquor. See NMSA 1978, § 66-8-

9 102(A) (2008) (amended 2010). Defendant admitted that she was driving the vehicle

10 after drinking alcohol and had been going too fast just prior to the accident. [MIO 4]

11 Officer Sanchez testified that Defendant was impaired and failed to follow instructions

12 for the field sobriety tests. [MIO 6] He testified that he arrested her based on her

13 admission that she had been drinking and driving, her performance of the tests, the

14 bloodshot eyes, the bottle of alcohol, and the smell. [MIO 6; DS 7] Based on this, our

15 calendar notice proposed to hold that the evidence was sufficient to support

16 Defendant’s conviction.

17 In her memorandum in opposition, Defendant claims that Officer Sanchez’s

18 testimony concerning the field sobriety tests cannot be deemed as competent lay

19 opinion within the meaning of Rule 11-701 NMRA. [MIO 13-16] We decline to
6

1 address this argument, because it constitutes a new evidentiary issue apart from the

2 sufficiency challenge, and Defendant has not filed a motion to amend the docketing

3 statement. See Rule 12-208(F) NMRA. In the context of the sufficiency challenge,

4 we believe that the district court, sitting as fact finder, could rely on the credibility of

5 the officer’s observations. In light of the above-noted evidence, we conclude that

6 there was sufficient evidence presented to support Defendant’s conviction. 

7 For the reasons stated in this opinion, we affirm.

8 IT IS SO ORDERED.

9 __________________________________

10 JONATHAN B. SUTIN, Judge

11 WE CONCUR:

12 _________________________________

13 RODERICK T. KENNEDY, Judge

14 _________________________________

15 ROBERT E. ROBLES, Judge