State v. Hudson ( 2012 )

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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. 31,283
5 JASON HUDSON,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
8 Steven L. Bell, District Judge
9 Gary K. King, Attorney General
10 William Lazar, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Jacqueline L. Cooper, Acting Chief Public Defender
14 Allison H. Jaramillo, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 WECHSLER, Judge.
1 Defendant appeals his conviction for driving while intoxicated. We issued a
2 second calendar notice proposing partial summary affirmance and partial summary
3 reversal and remand. The State has filed a response indicating that it concurs.
4 Defendant has filed a response indicating that he concurs on reversal and remand, and
5 relies on previous arguments with respect to our proposed partial affirmance. We
6 affirm in part, and reverse and remand in part.
7 Independent Blood Test
8 Defendant has argued that the officer did not comply with his statutory right to
9 an independent blood test. See NMSA 1978, §§ 66-8-109(B) & (E) (1993). [DS 5;
10 MIO 4] We proposed to affirm and Defendant indicates that he continues to rely on
11 previous arguments. We are not persuaded that our second calendar notice was
12 incorrect. See State v. Ibarra, 116 N.M. 486, 489, 864 P.2d 302, 305 (Ct. App. 1993)
13 (stating that “[a] party opposing summary disposition is required to come forward and
14 specifically point out errors in fact and/or law”).
15 Speedy Trial
16 Our second calendar notice proposed to reverse and remand the denial of
17 Defendant’s motion to dismiss on speedy trial grounds. We did so to provide the
18 district court the opportunity to apply the new district court six-month rule, Rule 5-
19 604 NMRA. The new rule is applicable to this appeal. See Rule 5-604(C). For cases
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1 of concurrent jurisdiction originating in a lower court and re-filed in district court, the
2 district court should apply a multi-factor test when the original lower court six-month
3 deadline has expired. State v. Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236
4 P.3d 20; see Rule 5-604(B). There is no dispute that the present case is a concurrent
5 jurisdiction case that would be subject to the new rule. Cf. State v. Loya, 2011-
6 NMCA-077, ¶ 9, 150 N.M. 373, 258 P.3d 1165 (noting that new district court six-
7 month rule is inapplicable to cases where exclusive jurisdiction resides in district
8 court).
9 The State has filed a response indicating that it concurs with our proposed
10 disposition. As such, we reverse and remand to the district court with instructions to
11 apply the factors set forth in the new district court six-month rule. We affirm in all
12 other respects.
13 IT IS SO ORDERED.
14 _______________________________
15 JAMES J. WECHSLER, Judge
16 WE CONCUR:
17 ___________________________________
18 JONATHAN B. SUTIN, Judge
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1 ___________________________________
2 CYNTHIA A. FRY, Judge
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