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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 29,503 9 PATRICK ROMERO, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Albert S. “Pat” Murdoch, 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 Vicki W. Zelle, Assistant Public Defender 19 Albuquerque, NM 20 for Appellant 21 MEMORANDUM OPINION 22 WECHSLER, Judge. 232 Defendant appeals his convictions for DW I and failing to maintain a lane. We 1 issued a calendar notice proposing to affirm the convictions and the district court’s 2 decision. In response, Defendant has filed a memorandum in opposition. After 3 careful consideration of Defendant’s arguments, we affirm the decision of the district 4
court. 5 In our calendar notice, we pr oposed to apply the case of State v. Garza , 6 2009-NMSC-038, 146 N.M. 499, 212 P.3d 387, inwhich our Supreme Court altered 7 our speedy trial guidelines. The Court held that Garzaapplies in cases where a 8 motion to dismiss based on speedy trial wa s initiated by the defe ndant on or after 9 August 13, 2007. Id. ¶ 50. In this case, a motion to dismiss based on speedy trial was 10 filed on August 21, 2007. Therefore, we proposed to hold that the new guidelines in 11 Garzaare applicable to this case. 12 In response to our calendar notice, Defendant claims that a motion for 13 dismissal based on speedy trial grounds wa s initiated by him be fore August 13, 2007 14 by the following actions: (1) when respondi ng to motions for c ontinuance, Defendant 15 argued that further delay beyond July 17 fo r holding trial “would violate” his speedy 16 trial rights; and (2) after mistrial was d eclared, Defendant argue d that the case should 17 be dismissed based on double jeopardy grounds and also raised the issue of his right 183 to a speedy trial having been affected ba sed upon the prosecutor’s statements, which 1 ultimately led to the mistrial in the first place. Although Defendant alerted the district 2 court that a trial date beyond July 17 woul d violate his speedy trial rights and argued 3 that prosecutorial misconduct led to the mi strial, Defendant did not initiate a motion 4 to dismiss the charges based on a speedy trial violation until after August 13, 2007. 5 On the date of the mistrial, when th e district judge and the parties were 6 discussing a new trial date, defense counsel made a motion to dismiss the charges due 7 to a violation of double jeopardy rights. Defense counsel also expressed concern, 8 based on prosecutorial misconduc t, regarding Defendant’s ri ght to have a speedy trial. 9 [CD1, 5/24/07, 12:37:07-12:37:40] The memorandum in opposition includes quoted 10 language from the discussion in the district court but does not include the full text of 11 the oral motion. After mistrial wa s declared, defense counsel stated: 12 Your honor I just want to make a record. I’m going to move that this 13 case be dismissed. I believe that trying Defendant again would violate 14 the double jeopardy protections under the United States and New Mexico 15 Constitution. I believe that jeopardy has attached. And I also raise the 16 issue of the Defendant’s right to a speedy trial having been affected 17 based upon the prosecutor’s statements, which ultimately led to a mistrial 18 in the first place. I do understand that the rule starts anew and July 17th 19 is going to fit with everyone’s schedule. So I want to make that record. 20 [CD1, 5/24/07, 12:37:05-12:37:53] The Stat e responded to defense counsel’s double 21 jeopardy argument and the district judge agreed with the State’s argument, stating: 224 I agree. I don’t believe that double jeopardy attaches in this situation. 1 I believe a mistrial is the appropriate cure for what happened in 2 openings, and this case will be reset. 3 [CD1, 5/24/07, 12:38:24-12:38:39] 4 The oral motion made by defense couns el was based on a claim regarding 5 Defendant’s double jeopardy ri ghts and an argument that the prosecutor had engaged 6 in misconduct that led to mistrial. Defense counsel did not ask the district court to 7 dismiss the case based on a violation of spee dy trial. It is apparent from the entire 8 discussion following the declaration of a mi strial that no motion to dismiss on speedy 9 trial grounds was initiated by defense counsel, and the district court was not alerted 10 to a claim that dismissal was appr opriate based on speedy trial grounds. 11 Garzais applicable if a motion to dismiss based on speedy trial is initiated on 12 or after August 13, 2007. 2009-NMSC-038, ¶ 50. Defendant did not initiate a motion 13 to dismiss based on speedy trial grounds until August 21, 2007. Under the guidelines 14 in Garza , a one-year delay in a simple cas e is presumptively prejudicial. Id. ¶ 47. The 15 delay in this case was less than one yearand, therefore, was not presumptively 16 prejudicial. See State v. Stock , 2006-NMCA-140, ¶ 12, 140 N.M. 676, 147 P.3d 885 17 (“When a speedy trial claim is made, the defendant must make a threshold showing 18 that the length of delay is presumptively prejudicial.” (internal quotation marks and 195 citation omitted)). Because th e delay was not presumptivel y prejudicial, we need not 1 engage in a speedy trial analysis. 2 Defendant continues to claim that th e BAT machine should have been re3 calibrated after the BAT mobile was moved from one side of the building to another. 4 Defendant claims that the regulations requi re notification to SLD when “substantial 5 changes” are made or there is “any move ment of the instrument” from its original 6 approved location. Defendant argues that SLD should have been notified when the 7 BAT mobile was moved. Defendant provides no support for his claim that the 8 machine was moved from its original approved location when the BAT mobile was 9 moved. In fact, the district court held that it can be inferred that, by installing a 10 machine in a mobile BAT station, the SLD knew the BAT mobile would be moved. 11 [RP 231-32] Defendant has not shown that the SLD regul ations were not complied 12 with in this case. In addition, as discusse d in the calendar notice, re-calibration of the 13 machine after it has been moved is within the discretion of the SLD and is not 14 mandatory. 15 Defendant continues to claim that the di strict court erred in refusing to allow 16 access to the officer’s personal internal affairs file or to allow questioning of the 17 officer about the file. Defendant claims th at he showed there was a strong financial 186 incentive to conduct traffic stops and a powerful motive to support the stops with 1 “embellishments or lies.” [MIO 36-37] We review the admission of evidence for 2 abuse of discretion. See State v. Sarracino , 1998-NMSC-022, ¶ 20, 125 N.M. 511, 3 964 P.2d 72. 4 In our calendar notice, we pointed to th e district court’s opinion, which stated 5 that Defendant “lacked a ‘smoking gun’” and could point to no situation where the 6 officer “was proven wrong or lacked credibility.” [RP 230] Although the 7 metropolitan court found that the file was irrelevant, Defendant was given “leeway” 8 in cross-examining the officer. We hold that denying Defendant access to the 9 officer’s file did not amount to an abuse of discretion. See State v. Roybal , 115 N.M. 10 27, 30, 846 P.2d 333, 336 (Ct. App. 1992) (determining that where the defendant 11 made no showing that an internal affairs f ile contained information material to the 12 preparation of his defense, there was no ba sis for appellate review of the question of 13 admission of the files). 14 Defendant claims that his double jeopardy rights were violated when he was 15 tried a second time after a mistrial was declaredin the first trial. Defendant continues 16 to claim that the mistrial was the result of prosecutorial misconduct. As discussed in 17 our calendar notice, the metropolitan court chose to wait until the State presented its 187 foundation for admission of the BAT card before ruling on De fendant’s motion to 1 suppress the BAT card. Mistrial was declared after the State, during opening 2 argument, stated that the jury would see that Defendant “was well above the legal 3 limit.” After declaring a mistrial, the metropolitan court found that the statement did 4 not rise to the level of prosecutorial misconduct under State v. Breit , 1996-NMSC5 067, 122 N.M. 655, 930 P.2d 792, and retrial would not be barred. Under Breit , retrial 6 is barred: (1) when the prosecutor’s “conduct is so unfairly prejudicial to the 7 defendant that it cannot be cured by means s hort of a mistrial or a motion for a new 8 trial,” (2) when the prosecutor “knows thatthe conduct is improper and prejudicial,” 9 and (3) when the prosecutor “either intends to provoke a mistrialor acts in willful 10 disregard of the resulting mistrial.” Breit , 1996-NMSC-067, ¶ 32. We apply the Breit 11 test for determining when retrial is ba rred after mistrial based on prosecutorial 12 misconduct. As discussed in our calendar notice, the prosecutor’s comment was not 13 due to a personal vendetta ag ainst Defendant, the reaction of the prosecutor and his 14 actions from the beginning of the case di d not indicate an attempt to engage in 15 misconduct in order to bring about a mistrial , the isolated comment was not sufficient 16 to rise to the level of misconduct that woul d bar retrial, and the prosecutor’s statement 17 did not rise to the level of the “unrel enting and pervasive” misconduct that occurred 188 in Breit

. See id. ¶¶ 41-45. Contrary to Defendant’s argument, we did not state that 1 a single statement would not meet the Breit test. Instead, as found by the 2 metropolitan court, we noted that the single statement in this case did not meet the 3 Breit test. 4 We disagree with Defendant’s claim that the prosecutor’s conduct was “an 5 effort to inject unfair prejudice into the trial.” [MIO 45] We also disagree that the 6 prosecutor made the statement in order to cause a mistrialto prevent any chance that 7 Defendant would be acqu itted in the first trial. There is simply no support for a claim 8 that the prosecutor engaged in the typeand amount of misc onduct necessary under 9 Breit

. 10 For the reasons discussed herein and inour calendar notice, we affirm the 11 district court’s decision. 12 IT IS SO ORDERED. 13

_______________________________ 14 JAMES J. WECHSLER, Judge 15 WE CONCUR: 16

_______________________________ 17 RODERICK T. KENNEDY, Judge 189 _______________________________ 1 MICHAEL E. VIGIL, Judge 2