1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 30,431
10 BIANCA RODRIGUEZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Kenneth H. Martinez, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Linda Yen, Assistant Appellate Defender
19 Albuquerque, NM
20 for Appellant
21 MEMORANDUM OPINION
22 SUTIN, Judge.
23 Defendant appeals her convictions for driving while intoxicated (DWI), failure
24 to maintain a lane, and no proof of insurance. We proposed to affirm Defendant’s
1 convictions in a calendar notice, and we have received a memorandum in opposition
2 to that calendar notice from Defendant. We have considered Defendant’s arguments,
3 but we are not persuaded by them. We therefore affirm.
4 Defendant contends that the officer could not have “meaningful[ly]” observed
5 her for the required twenty-minute period in order to ascertain that she had nothing
6 in her mouth prior to performing the breath-alcohol test (BAT). See State v. Willie,
7 2009-NMSC-037, ¶ 10, 146 N.M. 481, 212 P.3d 369. Defendant claims that the
8 deprivation period between 2:27 a.m. and 2:50 a.m. was extended to 3:03 a.m. when
9 the BAT was administered, and during that additional thirteen minutes, the officer
10 “was occupied” with administering a test to another individual. [MIO 10] Defendant
11 claims, without citation to the record, that the officer was “fully occupied” with a
12 variety of tasks during the thirteen-minute gap. [Id.] As explained in our calendar
13 notice, the officer testified that, during the entire observation period and during the
14 time he was administering a test on another individual, Defendant was in his car or
15 seated at the breath testing machine, she was in plain view, within his “sight and
16 hearing,” he had a “full visual” of her, and he had “complete contact” with her. [RP
17 91-92] This was sufficient to establish that the officer complied with the requirements
18 for the deprivation period.
2
1 Defendant argues for the first time that the delay of one hour and ten minutes
2 before the BAT was administered “casts additional doubt on the reliability of the
3 breath score.” [MIO 13] Defendant did not properly preserve this argument for
4 purposes of appeal. See State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993
5 P.2d 1280. Moreover, as conceded by Defendant, the DWI statute allows for
6 admission of a BAT taken within three hours of driving. [MIO 13]
7 Defendant continues to claim that the evidence was insufficient to support her
8 DWI conviction. We view the evidence in the light most favorable to the verdict, and
9 we resolve all conflicts in the evidence in favor of that verdict. State v. Cunningham,
10 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Defendant offers contrary
11 explanations for the observations made by the officer prior to the stop and during
12 administration of the field sobriety tests, including such possibilities as the two cars
13 were weaving between lanes in an effort to “just play[] games,” the bloodshot and
14 watery eyes could be attributed to allergies or fatigue, and the performance on field
15 sobriety tests could have been affected by problems with Defendant’s leg due to hip
16 replacement. [MIO 14-15] However, as discussed in our calendar notice, there was
17 evidence presented that Defendant was weaving into the bicycle lane, she failed to
18 stop after the officer engaged his emergency equipment, she admitted that she had
19 been drinking, she had bloodshot, watery eyes, slurred speech, and smelled strongly
3
1 of alcohol, she could not maintain her balance, she performed poorly on field sobriety
2 tests, and the results of the BATs were above the statutory limit. This was sufficient
3 to support Defendant’s DWI conviction.
4 For the reasons discussed in this opinion and in our calendar notice, we affirm
5 Defendant’s convictions.
6 IT IS SO ORDERED.
7 __________________________________
8 JONATHAN B. SUTIN, Judge
9 WE CONCUR:
10 _________________________________
11 CYNTHIA A. FRY, Chief Judge
12 _________________________________
13 TIMOTHY L. GARCIA, Judge
4