State v. Alvarez

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,637
10 MICHAEL ALVAREZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Carl J. Butkus, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Santa Fe, NM
19 Josephine H. Ford, Assistant Appellate Defender
20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 WECHSLER, Judge.
1 Defendant appeals his convictions for driving while intoxicated and obstructing
2 traffic. We proposed to affirm. Defendant has timely responded. We have
3 considered his arguments and not being persuaded, we affirm.
4 On appeal, Defendant argues that there was insufficient evidence to support his
5 conviction for driving while intoxicated. [MIO 1] In particular, he argues that under
6 the totality of the evidence, it was insufficient to show beyond a reasonable doubt that
7 the breath sample taken by the arresting officer was not contaminated and that the
8 Intoxilyzer was accurate on the date of the test. [MIO 9]
9 In our notice, we pointed out that Defendant’s basis for the argument that the
10 sample was contaminated was conflicting testimony regarding whether or not a clean
11 mouthpiece was put on the machine. [CN 2-3] Defendant recognizes that conflicts in
12 the evidence are for the factfinder to resolve. [MIO 10] See State v. Rojo, 1999-
13 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (filed 1998) (stating that contrary
14 evidence supporting acquittal does not provide a basis for reversal because the jury
15 is free to reject Defendant’s version of the facts). Defendant does not indicate why
16 it was error for the district court to believe the police officer rather than him on this
17 issue. [MIO 10] The district court resolved the conflict by believing that the officer
18 put a new mouthpiece on the machine. Defendant has not convinced us that such a
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1 finding was erroneous.
2 With regard to the accuracy of the Intoxilyzer, our notice proposed to conclude
3 that the district court had enough information regarding the machine to admit the test.
4 [CN 3] Defendant continues to argue that the officer did not testify about running air
5 blanks, calibration checks, or temperature checks and that those failures affected the
6 accuracy of the test. [MIO 10] We conclude that the officer’s testimony regarding
7 checking for SLD certification, checking calibration logs, and the machine’s self-
8 diagnostic check were sufficient without more to admit the results of the test into
9 evidence. Cf. State v. Onsurez, 2002-NMCA-082, ¶ 10, 132 N.M. 485, 51 P.3d 528.
10 Because the results of the breath test were properly admitted and the test
11 indicated that Defendant’s blood alcohol level was .09, there was sufficient evidence
12 to support Defendant’s conviction of per se DWI. NMSA 1978, § 66-8-102(C)
13 (2008).
14 In our notice, although it was not clear whether Defendant was convicted under
15 this section, we also reviewed the evidence that would have supported a conviction
16 pursuant to NMSA 1978, Section 66-8-102(A) (2008). [CN 3-4] Defendant does not
17 specifically attack that analysis. See State v. Johnson, 107 N.M. 356, 358, 758 P.2d
18 306, 308 (Ct. App. 1988) (holding that issues are deemed abandoned when a party
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1 fails to respond to the proposed disposition in the notice).
2 For the reasons set forth herein and in our calendar notice, we affirm
3 Defendant’s conviction.
4 IT IS SO ORDERED.
5 _______________________________
6 JAMES J. WECHSLER, Judge
7 WE CONCUR:
8 _______________________________
9 CYNTHIA A. FRY, Chief Judge
10 _______________________________
11 TIMOTHY L. GARCIA, Judge
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