State v. Golden

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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. 31,803
5 DENNY JAMES GOLDEN,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
8 Grant L. Foutz, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jacqueline L. Cooper, Chief Public Defender
13 Karl Erich Martell, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
1 CASTILLO, Chief Judge.
2 Defendant appeals his conviction of driving while intoxicated. In our notice,
3 we proposed to hold that a sufficient foundation was laid for admission of the breath
4 alcohol test results and that the district court did not err in denying Defendant’s
5 motion to suppress evidence. Defendant has timely responded. We have considered
6 his arguments and, finding them unpersuasive, we affirm the judgment.
7 In our notice, we pointed out that as long as the breath test was done in
8 accordance with SLD regulations, foundational requirements are satisfied. See State
9 v. Martinez, 2007-NMSC-025, ¶¶ 11-12, 141 N.M. 713, 160 P.3d 894. We stated that
10 admissibility depended on the officer’s testimony regarding compliance with SLD
11 regulations. We proposed to hold that the officer’s testimony here was sufficient as
12 he stated that he saw an SLD certificate for the machine taped to the wall near the
13 machine and that the copy of the certificate appeared to be accurate and covered the
14 time that the testing occurred. [CN2] Moreover, he conducted the test pursuant to
15 SLD regulations.
16 Defendant continues to argue that the testimony of the officer was not sufficient
17 to establish a foundation for admission of the test results. We recognize that the
18 officer was not able to answer questions relating to particular SLD regulations
19 regarding the machine that he used. However, he was able to testify that there was a
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1 current SLD certificate for the machine that he used. And, he testified that he used
2 SLD-mandated procedures to perform the test. That is all that the law requires. Id.3 ¶ 12. Therefore, we affirm the admission of the breath test results in this case.
4 In our notice, we also proposed to hold that there was reasonable suspicion to
5 support the traffic stop here. The officer testified that he observed Defendant’s truck
6 cross the yellow line several times and then move back into its lane of traffic.
7 Defendant argues that the video of the encounter showed only two minor crossings of
8 the line as opposed to the officer’s testimony of three crossings. He argues that two
9 minor crossings of the center line are insufficient to amount to reasonable suspicion
10 for a stop. We disagree. We believe that any weaving in and out of the lane of travel
11 is sufficient for a reasonable officer to believe that traffic laws are being broken
12 whether through careless driving or driving while intoxicated. Thus, there was
13 reasonable suspicion to stop Defendant’s vehicle.
14 For the reasons stated herein and in the notice of proposed disposition, we
15 affirm.
16 IT IS SO ORDERED.
17 __________________________________
18 CELIA FOY CASTILLO, Chief Judge
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1 WE CONCUR:
2 __________________________________
3 CYNTHIA A. FRY, Judge
4 __________________________________
5 LINDA M. VANZI, Judge
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