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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,584
5 EMILY JONES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Briana H. Zamora, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Todd B. Hotchkiss, Attorney at Law, LLC
13 Todd B. Hotchkiss
14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 HANISEE Judge.
1 {1} Defendant appeals from an on-the-record district court judgment reversing her
2 conviction for driving while intoxicated and remanding the case to the metropolitan
3 court for a new trial. Because the district court reversed her conviction, Defendant’s
4 sole issue on appeal claims that any retrial is barred by double jeopardy. We proposed
5 to hold that retrial was not barred. Defendant has responded with a memorandum in
6 opposition. Not persuaded, we affirm the district court judgment.
7 {2} Defendant contends that the district court should have barred retrial after it
8 concluded that the metropolitan court improperly considered extra-judicial
9 information. Defendant claims that the consideration of this information, including
10 past dealings with a witness, should bar any new trial. However, the fact thatevidence
11 was improperly considered does not, in and of itself, bar re-trial. See State v. Post,
12 1989-NMCA-090, ¶ 22, 109 N.M. 177, 783 P.2d 487 (“If all of the evidence,
13 including the wrongfully admitted evidence, is sufficient, then retrial following
14 appeal is not barred [by the Double Jeopardy Clause].”). We therefore consider the
15 sufficiency of the evidence.
16 {3} A sufficiency of the evidence review involves a two-step process. Initially, the
17 evidence is viewed in the light most favorable to the verdict. Then the appellate court
18 must make a legal determination of “whether the evidence viewed in this manner
19 could justify a finding by any rational trier of fact that each element of the crime
20 charged has been established beyond a reasonable doubt.” State v. Apodaca, 1994-
2
1 NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation marks and citations
2 omitted).
3 {4} In order to convict Defendant of DWI, the evidence had to show that
4 Defendant was under the influence of intoxicating liquor while operating a motor
5 vehicle, and that this affected her ability to operate the vehicle to at least the slightest
6 degree. NMSA 1978, § 66-8-102(A) (2010); UJI 14-4501 NMRA. We conclude that
7 the facts set forth in the district court memorandum opinion indicate that the State
8 presented sufficient evidence to support the conviction. Specifically, during the field
9 sobriety tests Defendant failed to follow instructions, made several mistakes during
10 the walk-and-turn, used her arms for balance, and swayed. [RP 83] Defendant
11 admitted to drinking alcohol, and had physical manifestations of alcohol
12 consumption. [RP 83] In light of this evidence, we believe that there was sufficient
13 evidence presented to support Defendant’s DWI conviction. See, e.g., State v. Soto,
14 2007-NMCA-077, ¶ 34, 142 N.M. 32, 162 P.3d 187 (holding that there was sufficient
15 evidence to support a conviction where officers observed the defendant driving,
16 where the defendant admitted to drinking, and where the defendant had bloodshot
17 watery eyes, smelled of alcohol, and slurred speech); State v. Notah-Hunter, 2005-
18 NMCA-074, ¶ 24, 137 N.M. 597, 113 P.3d 867 (holding that evidence that a
19 defendant smelled of alcohol, had slurred speech, admitted to drinking alcohol, failed
3
1 field sobriety tests, and was driving erratically was sufficient to uphold a conviction
2 for driving while intoxicated).
3 {5} For the reasons set forth above, we affirm the district court judgment.
4 {6} IT IS SO ORDERED.
5 ____________________________________
6 J. MILES HANISEE, Judge
7 WE CONCUR:
8 ___________________________
9 JONATHAN B. SUTIN, Judge
10 ___________________________
11 M. MONICA ZAMORA, Judge
4