This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 file d 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. 31,635 4 DEREK TOOHEY, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 William H. Brogan, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline Cooper, Ch ief Public Defender 12 B. Douglas Wood III, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 BUSTAMANTE, Judge. 172 Defendant appeals his convictions, pursu ant to a conditional plea [RP 101, 124], 1 for driving while under the influence of intoxicating liquor (felony DWI, fourth 2 offense), driving while license suspended or revoked, no proof of insurance, speeding, 3 and failure to yield. [RP 173] Our notice proposed to a ffirm, and Defendant filed a 4 timely memorandum in opposition. Weremain unpersuaded by Defendant’s 5 arguments and therefore affirm. 6 Defendant continues to argue that the di strict court erred in denying his motion 7 to suppress the results of his blood test b ecause the search warrant authorizing the 8 blood test was deficient. [DS 5; MIO 4; RP 54, 68, 99] In his docketing statement, 9 Defendant pointed to a number of alleged deficiencies in the warrant. [DS 3-4] For 10 most of the alleged deficiencies, Defe ndant’s memorandum in opposition provides no 11 further arguments in support of his position. See Hennessy v. Duryea , 1998-NMCA12 036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in 13 summary calendar cases, the burden is on the party opposing the proposed disposition 14 to clearly point out errors in fact or law.”). 15 Instead, Defendant’s memorandum in opposition focuses only on his continued 16 assertion that the affidavit was deficient because it failed to state that the blood would 17 produce material evidence for a felony prosecuti on. [DS 4; MIO 5] We disagree. As 18 provided in our notice, the affidavit provides that Defendant “has three or more prior 193 DWI arrests (disposition unknown).”[RP 59, 123] This statement provides sufficient 1 probable cause that Defendant may have had three prior DW I’s, with his current arrest 2 constituting a potential fourth, and therefore felony DWI. See generally State v. 3 Duquette , 2000-NMCA-006, ¶ 16, 128 N.M. 530, 994 P.2d 776 (providing that DWI 4 can be the underlying felony offense for pr obable cause to justify a search warrant 5 under Section 66-8-111(A)), limited on other grounds byState v. Williamson , 2009- 6 NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376; NMSA 1978, § 66-8-102(G) 7 (providing that, upon a fourth DWI conviction, an offender is guilty of a fourth degree 8 felony). 9 While the affidavit does not expressly state that it is premised on a potential 10 felony DWI prosecution [MIO 5], the basis for the affidavit is apparent given that it 11 references Defendant’s three prior DWI’s and is premised on his arrest for a fourth 12 DWI. [RP 59] Moreover, werecognize that the affidavit provides that the disposition 13 for the three prior DWI arrests is unknown. [M IO 6; RP 59] The affidavit’s reference 14 to three prior DWI arrests as provide d by Defendant’s Triple III Inter Agency 15 Identification Index [RP 59], however, none theless provides a substantial basis to 16 support a finding of probable cause. See State v. Williamson , 2009-NMSC-039, ¶ 31 17 (recognizing that “[T]he degree of proof nece ssary to establish probable cause for the 184 issuance of a search warrant ‘is more thana suspicion or possibility but less than a 1 certainty of proof.” (internal quot ations marks and citation omitted)). 2 Citing to State v. Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 (1967) and 3 State v. Boyer , 103 N.M. 655, 658-59, 712 P.2d 1, 4- 6 (Ct. App. 1985) [MIO 7], 4 Defendant also continues to argue that there was insuffi cient evidence that he has 5 three prior DWI convictions. [DS 4, 5; MIO 7] This argument was not adequately 6 preserved. While Defendant’s conditional plea reserved the denial of his motion to 7 suppress [RP 101], the sufficiency of the ev idence for his three prior DWI convictions 8 was not the subject of his motion to suppre ss, and Defendant does not dispute that the 9 record indicates that he specifically stipulated below that he has three prior DWI 10 convictions. [RP 170-72, 174] See State v. Lopez , 2009-NMCA-127, ¶ 43, 147 N.M. 11 364, 223 P.3d 361 (providing that the records of prior convictions must be properly 12 admitted into the record and available for review on appeal, unless such proof is 13 stipulated to or otherwise waived by the defendant). Moreover, apart from the lack 14 of preservation, based on the recitation in the judgment and sentence of the three prior 15 DWI’s [RP 174], the State nonetheless satisfi ed its prima facie burden to show that 16 Defendant has prior DWI convictions, and there is no indication that Defendant 17 presented any evidence to the contrary. See generally id . ¶ 36 (addressing the State’s 185 burden of proof for prior DWI convicti ons for purposes of enhancing a DWI 1 conviction). 2 To conclude, for reasons set forth he rein and in our notice, we affirm. 3
IT IS SO ORDERED. 4

5 MICHAEL D. BUSTAMANTE, Judge 6 WE CONCUR: 7

8 CELIA FOY CASTILLO, Chief Judge 9

10 JAMES J. WECHSLER, Judge 11