State v. Kenney
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-36678 5 KEVIN LEVONN KENNEY, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Benjamin Chavez, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Will O’Connell, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Chief Judge. 18 {1} Defendant Kevin Levonn Kenney appeals from his conviction for aggravated 19 driving under the influence of intoxicating liquor or drugs (DWI) (7th offense), 1 contrary to NMSA 1978, Section 66-8-102 (2016). [RP 143-47] Unpersuaded by 2 Defendant’s docketing statement, we entered a notice of proposed summary 3 disposition, proposing to affirm. Defendant has filed a memorandum in opposition to 4 our notice. We remain unpersuaded and therefore affirm. 5 {2} On appeal, Defendant raises three issues. First, Defendant contends that he was 6 denied due process as a result of Officer Rody’s failure to collect a blood sample from 7 him following his arrest. [DS 7] Second, Defendant contends that his right to testify 8 at trial was infringed upon by the district court’s ruling that his prior felony 9 convictions could be used to impeach his credibility. [DS 7] Lastly, Defendant 10 contends that he should have been afforded the process and procedure he requested 11 when challenging the validity of his prior convictions. [DS 7-8] Our notice set forth 12 the relevant facts for each issue and the law that we believed controlled. Specifically, 13 relevant to the first issue, we proposed that the limited duty to collect evidence as 14 described in State v. Ware, 1994-NMSC-091, 118 N.M. 319, 881 P.2d 679, does not 15 supply a basis for requiring an officer to agree to blood testing when a DWI suspect 16 refuses a breath test. Next, relative to Defendant’s second issue, we proposed that 17 Defendant had not adequately preserved the issue, and, even if he had, we pointed out 18 that our case law did not support Defendant’s argument. As for the last issue, we 19 proposed that differences in structure and purpose between the Habitual Offender Act, 20 NMSA 1978, § 31-18-17 (2003), and the sentencing scheme for prior DWIs did not 2 1 support Defendant’s request that the protections and procedures in place for habitual 2 offender proceedings be followed in this case. 3 {3} In response, Defendant reasserts the arguments raised in his docketing 4 statement without explaining why our proposed disposition was incorrect. [MIO 2-8] 5 Defendant’s arguments have already been addressed by this Court’s notice, and we 6 decline to address them further in this opinion because Defendant has not provided 7 any new legal or factual argument that persuades us that our analysis was incorrect. 8 See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 9 (stating that “[a] party responding to a summary calendar notice must come forward 10 and specifically point out errors of law and fact,” and the repetition of earlier 11 arguments does not fulfill this requirement), superseded by statute on other grounds 12 as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. Accordingly, for the 13 reasons set forth in our notice of proposed disposition and in this opinion, we affirm. 14 {4} IT IS SO ORDERED. 15 16 __________________________________ LINDA M. VANZI, Chief Judge 17 WE CONCUR: 3 1 _________________________________ 2 MICHAEL E. VIGIL, Judge 3 _________________________________ 4 J. MILES HANISEE, Judge 4
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.
