City of Hobbs v. Sparks

OPINION

WOOD, Chief Judge.

The Municipal Court in the City of Hobbs convicted defendant of operating a motor vehicle while under the influence of intoxicants, in violation of a city ordinance. Defendant appealed to the District Court. After trial in District Court, defendant was again found guilty. Defendant, pro se, has appealed to this Court. The City has not appeared in this Court and neither brief nor argument has been submitted on behalf of the City.

Defendant states no points relied on for reversal. His argument is directed to the following matters:

1. He argues the sufficiency of the evidence. We have reviewed the testimony. The testimony of the police officer is sufficient to sustain the conviction. City of Portales v. Shiplett, 67 N.M. 308, 355 P.2d 126 (1960).

2. He asserts he was denied the right to introduce evidence in his own behalf. The record shows he testified in his own behalf. He was given the opportunity to question the police officer but declined to do so. There were no other witnesses. There is nothing showing defendant desired to call additional witnesses or present evidence other than that which was presented. The transcript reference in support of this point shows the trial court instructed defendant not to argue with the court. It does not show he was denied the right to introduce evidence.

3. He contends there is no such thing as “a plain DWL” Defendant made this contention in the trial court after which the trial court stated it had read the city ordinance. Defendant persisted in his argument; the trial court instructed defendant not to argue. Defendant’s contention is that the city ordinance conflicted with State law. The claim apparently is that the city ordinance conflicted with the provisions of the Implied Consent Law. See § 64-22-2.6. N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 2). Section 64-22-2.6, supra, deals with inplied consent to tests for determining the alcoholic content of blood if arrested for certain offenses committed while driving a vehicle while under the influence of intoxicating liquor. Section 64-22-2.6, supra, does not define the offense for which defendant was convicted. There is nothing in the record before us which shows a conflict between § 64 — 22-2.-6, supra, and the city ordinance involved in this case. See City of Hobbs v. Biswell, 81 N.M. 778, 473 P.2d 917 (Ct.App.1970).

4. Defendant states he has reason to believe that the results of a breath test were altered; that his constitutional rights were violated because the "... hospital, the State Board of Health, and the police department refused to give me the results of my test of blood or breath. . ” These contentions were never presented to nor ruled on by the trial court. Under existing rules of appellate practice they may not be raised for the first time on appeal. The fact that defendant appears pro se does not alter the applicability of appellate rules. Wilson v. Albuquerque Board of Realtors, 82 N.M. 717, 487 P.2d 145 (Ct.App.1971).

The judgment and sentence of the District Court is affirmed.

It is so ordered.

HERNANDEZ J., concurs. SUTIN, J. dissenting.