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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 32,799 4 JULIO VALDEZ, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Stan Whitaker, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Mary McCleary 12 Los Lunas, NM 13 for Appellant 14

MEMORANDUM OPINION 15 BUSTAMANTE, Judge. 162 {1}Defendant-Appellant Julio Valdez (Defe ndant) has appealed his conviction for 1 DWI (first offense). We issued a noti ce of proposed summary disposition, proposing 2 to affirm. Defendant has filed a memorandum in opposition, which we have duly 3 considered. Because we remain unpersuaded, we uphold the conviction. 4
{2} On appeal Defendant contends that he received ineffective assistance of 5 counsel. Because we outlined the applicable standards and discussed the particulars 6 of this case at length in the notice of proposed summary disposition, we will not 7 reiterate it here. Instead, we will fo cus on the content of the memorandum in 8 opposition. 9
{3} Defendant continues to assert that trial counsel’s proffer of a prescription bottle, 10 without reading its label, was unreasonable and prejudicedhis defense. [MIO 1-4] 11 However, as we previously observed, th e introduction of the bottle appears to fall 12 within the ambit of trial strategy, insofar as it tended to support Defendant’s assertion 13 that he had taken a prescrip tion medication, the effects of which he did not believe he 14 was feeling at the time of driving. [DS 2-4] Defendant asserts thatsuch strategic value 15 constituted “dumb luck,” [MIO 2] and further suggests that any support that the bottle 16 may have supplied to Defe ndant’s assertions must have been outweighed by its 17 prejudicial effect. [MIO 3-4] However, as we observed in the notice of proposed 18 summary disposition, we cannot second-guess strategic matters. See generally Lytle 193 v. Jordan , 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666 (stating that on appeal, 1 we will not second guess the trial strate gy and tactics of the defense counsel). 2
{4} We also briefly acknowle dge Defendant’s suggesti on that trial counsel’s 3 approach to cross-examination constituted in effective assistance, insofar as it led the 4 arresting officer to comment that he was a drug-recognition expert (DRE), and to offer 5 his opinions about the probable effect of Defendant’s consumption of Ambien and 6 alcohol. [DS 2-3] However, insofar as th e officer’s comment about his DRE status 7 appears to have been spontaneous, [D S 3] we do not belie ve this suggests 8 unreasonable conduct on the part of trial couns el. We further note that trial counsel 9 may have elicited the testimony about Ambien’s status as a non-narcotic sleep aid [DS 10 2-3] for the strategic purpose of diminishing concerns that the finder of fact may have 11 had about the nature of the drug, particularly in light of the f act that testimony had 12 already been presented indicating that De fendant had admitted to taking an Ambien 13 prior to driving. [DS 2] While the presentation of this evidence may ultimately have 14 redounded to the detriment of the defense, this does not take it outside the realm of 15 reasonable trial strategy. See generally State v. Garcia , 2011-NMSC-003, ¶ 33, 149 16 N.M. 185, 246 P.3d 1057 (observing in this c ontext that “any ‘sound’ trial tactic or 17 strategy withstands review”). 184 {5} Moreover, even if defense counsel’s conduct was objectively unreasonable, we 1 remain unpersuaded by Defendant’s assertions of prejudice. In this context, 2 “generalized prejudice is insufficient. . . . A defendant must show a reasonable 3 probability that, but for counsel’s unprofessi onal errors, the result of the proceeding 4 would have been different.” State v. Bernal , 2006-NMSC-050, ¶ 32, 140 N.M. 644, 5 146 P.3d 289 (internal quotation marks and citations omitted). In this case, given the 6 testimony about erratic drivi ng and the various indicia of intoxication observed by the 7 arresting officer, together with Defendant’s apparent inability to perform field 8 sobriety tests, his BAC content of .07, and his admission to drinking and taking a 9 sedative prior to driving, [RP 64-65] we do not believe more prudent or effective 10 performance by counsel would have had any impact on the result. See, e.g., State v. 11 Nevarez , 2010-NMCA-049, ¶¶ 33-36, 148 N.M. 820, 242 P.3d 387 (upholding the 12 sufficiency of the evidence to support a convi ction for driving while impaired to the 13 slightest degree, based on testimony that the defendant drove his vehicle at a high rate 14 of speed, had bloodshot watery eyes, smelle d of alcohol, admitted to having consumed 15 alcohol, and failed to satisfactorilyperform field sobriety tests); State v. Soto , 2007- 16 NMCA-077, ¶ 34, 142 N.M. 32, 162 P.3d 187 (holding that there was sufficient 17 evidence to support a convicti on where officers observed the defendant driving, where 18 the defendant admitted to drinking, and where the defendant had bloodshot watery 195 eyes, smelled of alcohol, and slurred speech); State v. Notah-Hunter , 2005-NMCA1 074, ¶ 24, 137 N.M. 597, 113 P.3d 867 (holding that evidence that a defendant 2 smelled of alcohol, had slurred speech, admitted to drinking alcohol, failed field 3 sobriety tests, and was driving erratically was sufficient to uphold a conviction for 4 driving while intoxicated). 5
{6} Finally, Defendant suggests that the case of State v Aragon , 2009-NMCA-102, 6 ¶¶ 9-15, 147 N.M. 26, 29-30, supports his claim of ineffective assistance. [MIO 2-3] 7 However, Aragon dealt with a situation in which consultation with an expert was 8 necessary to understand the nature of the St ate’s evidence and to prepare an adequate 9 defense. Id. ¶¶ 15, 17. This case is not analogous. 10
{7} Accordingly, for the reasons statedabove and in the notice of proposed 11 summary disposition, we affirm. 12
{8} IT IS SO ORDERED. 13 14 MICHAEL D. BUSTAMANTE, Judge 15 WE CONCUR: 16

17 RODERICK T. KENNEDY, Chief Judge 18

19 LINDA M. VANZI, Judge 20