State v. Mike ( 2015 )

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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. 34,113
5 LESTER MIKE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Alisa Hadfield, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Josephine H. Ford, Assistant Public Defender
14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
1 WECHSLER, Judge.
2 {1} Defendant, Lester Mike, appeals his conviction for driving while under the
3 influence of an intoxicating liquor. We issued a notice of proposed summary
4 disposition proposing to affirm on November 19, 2014. Defendant filed a timely
5 memorandum in opposition, which we have duly considered. We remain unpersuaded
6 that our initial proposed disposition was incorrect, and we therefore affirm.
7 DISCUSSION
8 {2} In his memorandum in opposition, Defendant continues to argue that the State
9 failed to show that reasonable suspicion existed to stop him for a turn signal violation.
10 [MIO 6-8] NMSA 1978, Section 66-7-325(A) (1978) provides, in relevant part, that
11 “[n]o person shall . . . turn any vehicle without giving an appropriate signal . . . in the
12 event any other traffic may be affected by such movement.” The two elements in the
13 statute that must be satisfied in order for its mandate to be triggered are “(1) there
14 must be other traffic (2) that may be affected by the motorist’s turn.” State v. Hubble,
15 2009-NMSC-014, ¶ 11, 146 N.M. 70, 206 P.3d 579 (internal quotation marks and
16 citation omitted). Defendant argues that there was no reasonable suspicion to stop him
17 for a turn signal violation because the State failed to present any evidence that the
18 officer’s car might have been affected by his failure to use a turn signal. [MIO 6-7]
19
2
1 {3} The district court entered a memorandum opinion in Defendant’s on-record
2 appeal addressing this same issue. In our notice of proposed summary disposition, we
3 proposed to agree with the district court’s analysis and its determination that
4 reasonable suspicion to stop based on a turn signal violation was established by the
5 officer’s testimony that he was following Defendant in his vehicle when he observed
6 Defendant turn without using a turn signal. [RP 87-90] In his memorandum in
7 opposition, Defendant again asserts that this evidence was not sufficient to show that
8 the officer’s car may have been affected by his failure to use a turn signal. [MIO 6-7]
9 However, we continue to agree with the district court that the officer’s testimony that
10 he was following directly behind Defendant when he turned without signaling is
11 sufficient to establish reasonable suspicion of a turn signal violation. See Hubble,
12 2009-NMSC-014, ¶¶ 14-20 (determining that the defendant violated Section 66-7-
13 325(A) where he failed to signal when turning onto a highway after a police officer
14 drove past the intersection); cf. State v. Anaya, 2008-NMCA-020, ¶ 19, 143 N.M. 431,
15 176 P.3d 1163 (affirming that the officer lacked reasonable suspicion of a turn signal
16 violation where the officer’s vehicle was not traffic that could be affected by the
17 failure to signal and there was no other traffic in the area).
18 {4} Defendant also continues to argue that the district court abused its discretion in
19 admitting the results of the BAC test because the State failed to show compliance with
3
1 the applicable SLD regulations. [MIO 8-9] Defendant argues that the portable breath
2 test mouthpiece that was introduced into his mouth during the deprivation period
3 could have caused the results of the test to be inaccurate. [MIO 9] Again, the district
4 court entered a memorandum opinion addressing this same issue. In our notice of
5 proposed summary disposition we proposed to agree with its analysis and its
6 determination that the applicable SLD regulation does not require the State to show
7 that no foreign substances were introduced into a subject’s mouth prior to testing. [RP
8 93-94] See 7.33.2.15(B)(2) NMAC (“Breath shall be collected only after the certified
9 operator or certified key operator has ascertained that the subject has not had anything
10 to eat, drink or smoke for at least 20 minutes prior to collection of the first breath
11 sample.”). We also proposed to agree with its determination that Officer Brown’s
12 testimony that he checked Defendant’s mouth at the beginning of the deprivation
13 period, and his observation that Defendant did not eat, drink, or smoke during the
14 deprivation period, was sufficient to show compliance with the regulation. [RP 94]
15 Nothing in Defendant’s memorandum in opposition persuades us that the district
16 court’s analysis was incorrect. We therefore adopt that portion of its opinion
17 addressing this issue.
18 {5} For these reasons, we affirm the metropolitan court’s sentencing order.
19 {6} IT IS SO ORDERED.
4
1 ________________________________
2 JAMES J. WECHSLER, Judge
3 WE CONCUR:
4 ________________________________
5 RODERICK T. KENNEDY, Judge
6 ________________________________
7 LINDA M. VANZI, Judge
5