State v. Zavala

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-36590 5 DANITSA ZAVALA, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Stan Whitaker, District Judge 9 Hector Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 13 14 15 Bennett J. Baur, Chief Public Defender Santa Fe, NM Josephine Ford, Assistant Public Defender Albuquerque, NM 16 for Appellant 17 18 VANZI, Chief Judge. MEMORANDUM OPINION 1 {1} Defendant Danitsa Zavala appeals from a June 15, 2017 memorandum opinion 2 of the district court that affirmed Defendant’s conviction in metropolitan court for 3 driving under the influence of intoxicating liquor (DWI) to the slightest degree. [RP 4 94-104] In response to Defendant’s docketing statement, we proposed to affirm. 5 Defendant has filed a memorandum in opposition (MIO). After due consideration, we 6 are unpersuaded and therefore affirm Defendant’s conviction. 7 {2} To the extent possible, we will avoid repetition here of pertinent background 8 and analytical principles set forth in our calendar notice. Instead, we will focus on 9 Defendant’s MIO. Defendant revisits both arguments raised in her docketing 10 statement. 11 Motion to Suppress 12 {3} Defendant again contends that the evidence obtained from her seizure at the 13 DWI checkpoint should have been suppressed because the checkpoint was 14 unconstitutional and that the checkpoint was unconstitutional because the officers 15 were given excessive discretion. [MIO 1- 5] Defendant argues that we should 16 reconsider whether discretion to pursue checkpoint evaders who crossed the median 17 and, thus, committed a traffic infraction, rendered the checkpoint unreasonable. [MIO 18 2-3] Defendant has offered a more focused recitation of the facts from the docketing 19 statement, [Compare DS 1-8, with MIO 2-5] but has not offered any authority that 20 requires or causes us to reconsider our conclusion. Accordingly, for the reasons stated 2 1 in our calendar notice and here, we hold that the discretion to pursue potential evaders 2 constitutes minimal discretion and did not render the checkpoint unconstitutional. See 3 State v. Duarte, 2007-NMCA-012, ¶ 41, 140 N.M. 930, 149 P.3d 1027 (“What is 4 required is keeping the exercise of discretion to a minimum and reasonable, not the 5 absolute elimination of discretion.”). 6 Sufficiency of the Evidence 7 {4} Defendant asks us to reconsider whether sufficient evidence was presented to 8 support her conviction, [MIO 6-12] contending that no rational fact-finder could have 9 found the essential elements of the crime beyond a reasonable doubt, [MIO 12] as 10 required. See State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 988 P.2d 11 176. Defendant seems to argue that the lack of evidence of poor driving on 12 Defendant’s part undermines the jury’s conclusion. [See MIO 7 (“The State is required 13 to prove that the defendant’s driving skills were impaired”; MIO 7 (pointing out that 14 there was testimony that Defendant did not drive poorly and also other evidence of 15 Defendant’s appropriate behavior)] We disagree. See State v. Soto, 2007-NMCA-077, 16 ¶¶ 32, 34, 142 N.M. 32, 162 P.3d 187 (holding that there was sufficient evidence of 17 DWI pursuant to the impaired to the slightest degree standard, even though there was 18 no evidence of bad driving), overruled on other grounds by State v. Tollardo, 201219 NMSC-008, 275 P.3d 110. Defendant also asks us to disregard testimony indicating 20 that she described the amount she drank as a “cup of a sip[,]” stating that the officer 3 1 could have misunderstood what Defendant said, and that it is more likely that 2 Defendant said something different. [MIO 8] We will not reweigh the evidence, State 3 v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d 1156, and we are required 4 to view the evidence in the light most favorable to the guilty verdict, Cunningham, 5 2000-NMSC-009, ¶ 26. Accordingly, we disagree with Defendant that we should 6 conclude that Defendant did not use incorrect diction. Defendant also attacks the 7 reliability of the field sobriety tests, both generally [MIO 8-11] and as applied to 8 Defendant [MIO 10-12]. Defendant has not cited any binding authority indicating that 9 we should ignore the results of field sobriety tests because they are unreliable, and we 10 find the argument unpersuasive. With regard to the application of field sobriety tests 11 to Defendant, we will not reweigh the evidence. Griffin, 1993-NMSC-071, ¶ 17. 12 Defendant has not cited authority indicating, or otherwise persuaded us, that evidence 13 that Defendant emitted the odor of alcohol even in the open air, [DS 11] had bloodshot 14 and watery eyes, [DS 10] had difficulty with a number of field sobriety tests, [DS 1215 13] did not always follow directions, [DS 14-15] admitted to consuming alcohol, [DS 16 15] used incorrect diction (“a cup of a sip”) in describing her drinking, and had a 17 breath-alcohol level measured at .07 more than one hour after being stopped at the 18 checkpoint [DS 19-20] was insufficient for “any rational trier of fact [to] have found 19 the essential elements of the crime beyond a reasonable doubt[,]”Cunningham, 200020 NMSC-009, ¶ 26 (emphasis, internal quotation marks, and citation omitted). 4 1 Accordingly, for the reasons stated in our calendar notice and here, we hold that the 2 evidence was sufficient to support Defendant’s conviction. 3 {5} We affirm. 4 {6} IT IS SO ORDERED. 5 6 __________________________________ LINDA M. VANZI, Chief Judge 7 WE CONCUR: 8 _________________________________ 9 EMIL J. KIEHNE, Judge 10 _________________________________ 11 DANIEL J. GALLEGOS, Judge 5

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