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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. 33,966

5 BRENAN ROSS, 

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

8 Ross C. Sanchez, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM

11 M. Victoria Wilson, Assistant Appellate Defender

12 Albuquerque, NM

13 for Appellee

14 Jorge A. Alvarado, Chief Public Defender

15 Sergio Viscoli, Assistant Appellate Defender

16 Santa Fe, NM

17 for Appellant

18 MEMORANDUM OPINION
2

1 BUSTAMANTE, Judge.

2 {1} Defendant appeals her convictions for DWI per se and no headlights entered by

3 the metropolitan court and subsequently affirmed by the district court following an on4 record review. [RP 28, 74, 86] Our notice proposed to affirm in part, and to reverse

5 and remand in part. Both parties filed respective memoranda in opposition. We are not

6 persuaded that our notice was incorrect, and for this reason affirm in part, and reverse

7 and remand in part. 

8 {2} As an initial matter, we address the State’s argument raised in its memorandum

9 in opposition that challenges this Court’s jurisdiction to hear appeals from a district

10 court’s on-record review of a metropolitan court decision. [State’s MIO, red clip/6]

11 As the State recognizes [State MIO, red clip/6], this argument was rejected in State

12 v. Carroll, 2015-NMCA-033, ¶ 5, 346 P.3d 372 (“[T]his Court has been vested with

13 jurisdiction over appeals in all criminal actions with the limited exception of those

14 where a sentence of death or life imprisonment is imposed. Had the Legislature

15 intended to limit our jurisdiction to preclude review of the on-record appellate

16 decisions of the district court, we assume it would have explicitly done so.”), cert.

17 granted, 2015-NMCERT ___, ___ P.3d ___ (No. 35,063, Jan. 26, 2015), and we

18 decline to revisit the Carroll holding. See State v. Jones, 2010-NMSC-012, ¶ 59, 148

19 N.M. 1, 229 P.3d 474 (noting that, in the absence of law to the contrary, a decision
3

1 from the Court of Appeals is “controlling” even when certiorari has been granted by

2 the Supreme Court). 

3 {3} In issue (1), Defendant continues to argue that the officer lacked probable cause

4 to arrest her for DWI. [DS 14; Defendant MIO, black clip/14] See generally State v.

5 Granillo-Macias, 2008-NMCA-021, ¶¶ 7, 9, 143 N.M. 455, 176 P.3d 1187 (setting

6 forth our standard of review and providing that probable cause to arrest exists “when

7 the facts and circumstances within the officer’s knowledge are sufficient to warrant

8 the officer to believe that an offense has been or is being committed”). In pertinent

9 part, Defendant had bloodshot and watery eyes [RP 81], admitted to drinking alcohol

10 before driving [RP 81], smelled strongly of alcohol [RP 81], performed SFSTs with

11 mixed results such that she did not successfully complete all of the SFSTs [RP 80-81],

12 and was driving at night without her headlights. [RP 80] For the reasons provided in

13 the district court’s memorandum opinion [RP 79-81] and recognized in our notice, we

14 conclude that the foregoing provided probable cause to support Defendant’s arrest.

15 See generally State v. Neal, 2008-NMCA-008, ¶ 27, 143 N.M. 341, 176 P.3d 330

16 (recognizing that the fact-finder could rely on common knowledge and experience to

17 determine whether the defendant was under the influence of alcohol when considering

18 the testimony as to the defendant’s driving behavior, physical condition, admission

19 of drinking, and performance on the field sobriety tests). While Defendant emphasizes
4

1 her view that “[t]here were no common sense observations of intoxication such as

2 fumbling, stumbling, slurred words, or incoherent responses” [Defendant MIO, black

3 clip/16], it was within the factfinder’s prerogative to consider the other evidence, as

4 related, to assess that there was probable cause that Defendant was impaired. See

5 generally State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482

6 (recognizing that it is for the fact-finder to resolve any conflict in the testimony of the

7 witnesses and to determine where the weight and credibility lay); State v. Garcia,

8 2009-NMCA-107, ¶ 21, 147 N.M. 150, 217 P.3d 1048 (recognizing that the factfinder

9 is free to reject the defendant’s version of the events). 

10 {4} Lastly, to the extent Defendant attacks the efficacy of field sobriety tests in

11 general to show that a driver may be impaired to drive [Defendant MIO, black clip/16-

12 17; RP 60], we point out that case law considers a driver’s performance on SFSTs as

13 generic evidence that is relevant to a driver’s impairment, even if it is not a definitive

14 measure. See, e.g., State v. Lasworth, 2002-NMCA-029, ¶ 14, 131 N.M. 739, 42 P.3d

15 844; State v. Torres, 1999-NMSC-010, ¶ 31, 127 N.M. 20, 976 P.2d 20, (recognizing

16 that a defendant’s performance on motor skills exercises is one of the self-explanatory

17 tests that reveal common physical manifestations of intoxication). Based on the

18 foregoing discussion, we hold that probable cause supported Defendant’s arrest. 
5

1 {5} In issue (2), Defendant argues that the officer’s handing her a phone book failed

2 to satisfy the requirement that she be given a reasonable opportunity to arrange for an

3 independent chemical test under NMSA 1978, Section 66-8-109(B) (1993). [DS 15;

4 Defendant MIO, black clip/17] As provided in our notice and acknowledged by the

5 State [State MIO, red clip/8], State v. Chakerian, 2015-NMCA-052, ¶ 29, 348 P.3d

6 1027, cert. granted, 2015-NMCERT-005, ___ P.3d ___ (May 11, 2015), supports

7 Defendant’s argument. See Jones, 2010-NMSC-012, ¶ 59 (noting that, in the absence

8 of law to the contrary, a decision from the Court of Appeals is “controlling” even

9 when certiorari has been granted by the Supreme Court). Based on Chakerian, we

10 reverse and remand to the metropolitan court to determine a remedy under the

11 circumstances of this case. 

12 {6} To conclude, we hold that we have jurisdiction to consider Defendant’s appeal.

13 We further hold that probable cause supported Defendant’s arrest, and hold that

14 Defendant was not given a reasonable opportunity to arrange for an independent

15 chemical test as required by Section 66-8-109(B). We thus affirm in part, and reverse

16 and remand in part. 

17 {7} IT IS SO ORDERED.

18 _______________________________________

19 MICHAEL D. BUSTAMANTE, Judge
6

1 WE CONCUR:

2 

3 JAMES J. WECHSLER, Judge

4 

5 RODERICK T. KENNEDY, Judge