This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,737 9 CHRISTOPHER SANCHEZ, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Neil C. Candelaria, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Santa Fe, NM 18 Linda Yen, Assistant Public Defender 19 Albuquerque, NM 20 for Appellant 21 MEMORANDUM OPINION 22 WECHSLER, Judge. 232 Defendant appeals his convictions for aggravated driving while intoxicated 1 (refusal), speeding, and failure to maintain his lane. [RP 97-115] He contends that the 2 evidence is insufficient to support his convi ctions. Our notice proposed to affirm. 3 Defendant filed a memorandum in opposition. We are not persuaded that the analysis 4 in our notice is incorrect a nd, therefore, we affirm. 5 DISCUSSION 6 A sufficiency of the eviden ce review involves a two-step process. Initially, the 7 evidence is viewed in the light most favorableto the verdict. Th en the appellate court 8 must make a legal determin ation of “whether the evid ence viewed in this manner 9 could justify a finding by any rational trier of fact that each element of the crime 10 charged has been established beyond a reasonable doubt.” State v. Apodaca , 118 11 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation 12 omitted). 13 Deputy Hartsock testified that he observed Defendant’s vehicle speeding. [RP 14 98] According to the deputy’s radar, Defe ndant was traveling 48 miles per hour in a 15 25 mile per hour zone. [RP 98; MIO 1] This supports Defendant’s speeding 16 conviction. Even if the correct speed limit was 35 miles per hour, as was suggested 17 below, Defendant was still exceeding the speed limit. [RP 102-03] To the extent 183 Defendant argues that a “batching effect” could have undermined the accuracy of the 1 radar equipment, [MIO 14] this argument was not made below. [RP 102] 2 The deputy testified that Defendant’s ve hicle began to move into the center or 3 turn lane but remained half in the southbound lane and half in the turn lane for a few 4 seconds. [RP 98] He testified that De fendant was straddling the line between the 5 lanes for a while. [RP 98] We conclude that this evidence supports Defendant’s 6 conviction for failure to maintain his lane. Defendant downplays this evidence, 7 suggesting in his memorandum in oppositi on that there was nothing untoward about 8 his driving, [MIO 12-14] but the districtcourt was not required to accept his view. 9 See State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M . 438, 971 P.2d 829 (filed 1998) 10 (“Contrary evidence supporting acquittal does not provide a basis for reversal because 11 the jury is free to reject Defendant’s version of the facts.”). 12 There appears to be evidence that Defe ndant made a “very sudden” left turn. 13 [RP 98] Deputy Hartsock pulled Defendant over to see if De fendant was under the 14 influence of alcohol. Defendant smelled of alcohol, his eyes were bloodshot and 15 watery, and he admitted to having had a b eer. [RP 103] Defendant apparently had to 16 brush the side of his vehicle to maintainhis balance. [RP 103] He performed poorly 17 on field sobriety tests, was aggressive and loud, and during the finger dexterity test 184 shoved his hands toward the deputy loudl y saying, “can you see these?” Defendant 1 interrupted and was sarcastic. [RP 104] 2 The deputy testified that he asked Defendant if he would take a breath or blood 3 test, and Defendant did not answer. [RP 105] The deputy told him if he did not 4 answer, he would take silence as “no. ” [RP 105] Defendant remained silent. 5 We hold that this evidence was sufficient to establish intoxication. See State 6 v. Notah-Hunter , 2005-NMCA-074, ¶ 24, 137 N.M. 597, 113 P.3d 867 (holding that 7 evidence that the defendant smelled of alcohol, had slurred speech, admitted to 8 drinking, failed field sobrie ty tests, and was speeding, was sufficient to support a 9 conviction for driving while intoxicated). Defendant downplays his repeated failures 10 on the field sobriety tests, presenting altern ative explanations other than intoxication, 11 but the district court could reject his explanations. See Rojo , 1999-NMSC-001, ¶ 19. 12 We also hold that the evidence wa s sufficient to support refusal. See State v. 13 Fugere , 120 N.M. 29, 34-35, 897 P.2d 216, 221- 22 (Ct. App. 1995) (stating that 14 declining a request or demand constitutes re fusal). Defendant argues that at some 15 point he agreed to take a test, [MIO 15-18] but we are unpersuaded. Even if believed, 16 Defendant did not agree to take the test until an hour after hewas stopped. [RP 113] 17 Under Matter of Suazo , 117 N.M. 785, 793, 877 P.2d 1088, 1096 (1994), this was too 185 late to cure his earlier refusal. Suazo requires that a defendant’s change of heart be 1 expressed within “a very short time, ne ver more than a matter of minutes.” Id. 2 Defendant also suggests that he was not gi ven the advisory abouttaking the test or 3 may not have heard the deputy offer him the test. [MIO 16- 17] It was for the district 4 court to consider these arguments and to determine the weight to give them. The court 5 did not accept them and was not required to accept them. See Rojo , 1999-NMSC-001, 6 ¶ 19. 7 In general, Defendant’s testimony differed from the deputy’s, but it was for the 8 factfinder to consider Defendant’s versi on of events. The f act that Defendant’s 9 testimony was different does not require a conclusion that the evidence is insufficient. 10 See id. (“Contrary evidence supporting acquittal does not provide a basis for reversal 11 because the jury is free to reject [the d]efendant’s version of the facts.”). 12 We affirm Defendant’s convictions. 13 IT IS SO ORDERED. 14

_______________________________ 15 JAMES J. WECHSLER, Judge 166 WE CONCUR: 1

______________________________ 2 RODERICK T. KENNEDY, Judge 3

______________________________ 4 ROBERT E. ROBLES, Judge 5