State v. McCarthy

 Annotate this Case
Download PDF
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 34,475 5 KRISTEN A. MCCARTHY, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Charles W. Brown, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 13 14 15 Jorge A. Alvarado, Chief Public Defender Santa Fe, NM Josephine H. Ford, Assistant Appellate Defender Albuquerque, NM 16 for Appellant 17 18 GARCIA, Judge. MEMORANDUM OPINION 1 {1} Defendant appeals her conviction for DWI per se and a vehicle registration 2 violation entered by the metropolitan court following a bench trial and subsequently 3 affirmed by the district court following an on-record appeal. [RP 77, 78, 121, 131] 4 Our notice proposed to affirm, and Defendant filed a memorandum in opposition. We 5 remain unpersuaded by Defendant’s arguments, and therefore affirm. 6 {2} Defendant continues to argue that the officer lacked probable cause to arrest her 7 for DWI. [DS 25-26; MIO 5] See generally State v. Granillo-Macias, 2008-NMCA8 021, ¶¶ 7, 9, 143 N.M. 455, 176 P.3d 1187 (setting forth our standard of review and 9 providing that probable cause to arrest exists “when the facts and circumstances 10 within the officer’s knowledge are sufficient to warrant the officer to believe that an 11 offense has been or is being committed”). As provided in our notice, we conclude that 12 probable cause to arrest Defendant was established by the officer’s testimony that he 13 observed that Defendant had bloodshot watery eyes and an odor of alcohol and that 14 Defendant was unable to follow instructions and maintain balance during field 15 sobriety tests. [RP 128-129] We acknowledge Defendant’s view that Officer Hunt 16 necessarily lacked probable cause to arrest because the metropolitan court found that 17 Defendant was DWI per se, rather than impaired to the slightest degree, in light of the 18 lack of evidence of bad driving and display of “minimal clues on the SFSTs.” [MIO 19 15; RP 128-29] However, as pointed out in the district court’s memorandum opinion 2 1 [RP129], an officer may have probable cause to arrest even if the State is ultimately 2 unable to establish a crime beyond a reasonable doubt. See, e.g., Granillo-Macias, 3 2008-NMCA-021, ¶ 9 (“We judge reasonableness by an objective standard, mindful 4 that probable cause requires more than a suspicion, but less than a certainty.”(internal 5 quotation marks and citation omitted)); see also State v. Johnson, 1996-NMCA-117, 6 ¶ 11, 122 N.M. 713, 930 P.2d 1165 (“In a criminal case, an officer needs only 7 probable cause to arrest. The officer does not, at the time of arrest, need information 8 that would prove a crime was committed ‘beyond a reasonable doubt.’”). 9 {3} Defendant also continues to argue that her breath test was improperly admitted 10 because Officer Hunt failed to satisfy the requisite twenty-minute deprivation period. 11 [DS 26; MIO 26] See 7.33.2.15(B)(2) NMAC (stating that a breath test shall not be 12 administered unless the operator “has ascertained that the subject has not had anything 13 to eat, drink or smoke for at least [twenty] minutes prior to collection of the first 14 breath sample”). Specifically, Defendant argues that the officer should have started 15 a new twenty-minute deprivation period because Defendant burped halfway through 16 the twenty-minute period [DS 23; MIO 17, 18] and thereby potentially contaminated 17 her mouth with alcohol from her stomach. [MIO 17] As a consequence, Defendant 18 argues, her breath results of .11 and .11 were unreliable and the evidence effectively 19 insufficient to show that her breath test was .08 or higher. [MIO 17, 18; DS 26] 3 1 {4} As observed by the district court [RP 130], Defendant offered no evidence to 2 establish the effect of a “slight” burp on her provided breath sample, and the 3 metropolitan court was nonetheless entitled to weigh the evidence to assess that the 4 breath results were reliable. See generally State v. House, 1999-NMSC-014, ¶ 33, 127 5 N.M. 151, 978 P.2d 967 (recognizing that it is the role of the trial court, and not the 6 appellate court, to weigh the evidence). [RP 130] Moreover, as we emphasized in our 7 notice, the applicable SLD regulation does not require the State to prove that 8 Defendant did not burp during the twenty-minute deprivation period. See 9 7.33.2.15(B)(2) NMAC; see also State v. Willie, 2008-NMCA-030, ¶ 17, 143 N.M. 10 615, 179 P.3d 1223 (rejecting a similar argument on the basis that, while a since11 repealed regulation included this requirement, the current regulation does not), rev’d 12 on other grounds, 2009-NMSC-037, 146 N.M. 481, 212 P.3d 369. While Defendant 13 urges us to rely on out-of-state case law that recognizes the accuracy-ensuring 14 importance of a deprivation period without burping [MIO 17], we decline to do so and 15 instead rely on the plain language of the applicable regulation and our case law in 16 which Defendant’s argument finds no support. 17 {5} For the reasons discussed above and in our notice, we affirm. 18 {6} IT IS SO ORDERED. 19 ________________________________ 4 1 TIMOTHY L. GARCIA, Judge 2 WE CONCUR: 3 _______________________________ 4 MICHAEL E. VIGIL, Chief Judge 5 _______________________________ 6 RODERICK T. KENNEDY, Judge 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.