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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,110
10 GERALD LOPEZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Neil C. Candelaria, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Jacqueline L. Cooper, Acting Chief Public Defender
18 Santa Fe, NM
19 Josephine H. Ford, Assistant Public Defender
20 Albuquerque, NM
21 for Appellant
22 MEMORANDUM OPINION
23 VANZI, Judge.
1 Defendant appeals from a district court on-the-record affirmance of his
2 metropolitan court conviction for DWI (3rd Offense). We issued a calendar notice
3 proposing to affirm. Defendant has responded with a memorandum in opposition.
4 We affirm.
5 Issue A: Defendant continues to claim that the State had a duty to collect and
6 preserve a chemical (BAC) test pursuant NMSA 1978, Section 66-8-107(B) (1993).
7 [MIO 8] As part of the Implied Consent Act, that section states that a test “shall be
8 administered at the direction of a law enforcement officer.” Id. Defendant construes
9 this language to create a duty to the State to collect and preserve a blood or alcohol
10 test. However, the Act itself addresses the implied consent to take the test, and we
11 interpret this language to simply state that a law enforcement officer is the individual
12 who directs implementation of the test, as opposed to any mandatory duty to collect
13 this evidence. In this case, the officer testified that the blood test was not administered
14 because a technician was not available, and a breath test was not conducted because
15 Defendant’s injuries from the accident were such that he was not capable of taking a
16 breath test. [MIO 5] To the extent that any duty to test otherwise existed, the
17 Legislature has left it to the discretion of the officer on whether or not to conduct any
18 chemical testing under these circumstances. See NMSA 1978, § 66-8-108 (1978)
19 (“Any person who is dead, unconscious or otherwise in a condition rendering him
2
1 incapable of refusal, shall be deemed not to have withdrawn the consent provided by
2 Section 66-8-107 . . . and the test or tests designated by the law enforcement officer
3 may be administered.”) (Emphasis added)).
4 Even assuming, arguendo, that a duty to collect this evidence existed, the
5 district court specifically found that the failure to do so was, at most, ordinary
6 negligence. [MIO 7] Under these circumstances, the denial of the motion to suppress
7 would not constitute reversible error. See State v. Ware, 118 N.M. 319, 325-26, 881
8 P.2d 679, 685-86 (1994) (“When the failure to gather evidence is merely negligent,
9 an oversight, or done in good faith, sanctions are inappropriate, but the defendant can
10 still examine the prosecution’s witnesses about the deficiencies of the investigation
11 and argue the investigation’s shortcomings against the standard of reasonable
12 doubt.”).
13 Issue B: Defendant continues to argue that the evidence was insufficient to
14 support his conviction for driving while intoxicated. [MIO 14] A sufficiency of the
15 evidence review involves a two-step process. Initially, the evidence is viewed in the
16 light most favorable to the verdict. Then the appellate court must make a legal
17 determination of “whether the evidence viewed in this manner could justify a finding
18 by any rational trier of fact that each element of the crime charged has been
3
1 established beyond a reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887
2 P.2d 756, 760 (1994) (internal quotation marks and citation omitted).
3 In order to support his conviction, the evidence had to show that Defendant
4 drove a vehicle under the influence of intoxicating liquor. See NMSA 1978, § 66-8-
5 102(A) (2010). Here, Officer Powers testified that he was on the lookout for a white
6 Camaro after receiving a dispatch that it was being driven erratically. [MIO 1]
7 Approximately seven minutes later, Officer Powers received a dispatch concerning a
8 motor vehicle accident with possible injuries. [MIO 1] When Officer Powers arrived
9 at the scene, he observed Defendant sitting on the ground next to another officer, with
10 the Camaro upside down, and open and unopened beer cans strewn about. [MIO 1-2]
11 Defendant had a strong odor of alcohol, bloodshot eyes, and slurred speech. [MIO 2]
12 No other people were seen in the vicinity. [MIO 2] Officer Powers stated that the
13 conditions at the scene indicated to him that the car had been speeding and that the
14 driver was inattentive. [MIO 3] As indicated, there were no field sobriety tests or
15 chemical tests conducted because Defendant was not in a condition to perform them,
16 and Defendant was instead transported to the hospital. Based on this, our calendar
17 notice proposed to hold that the evidence was sufficient to support Defendant’s
18 conviction.
4
1 We are not persuaded by Defendant’s memorandum in opposition, which
2 essentially argues that the accident could have been caused by something other than
3 impairment, and that the mere odor of alcohol was insufficient alone to support the
4 conviction. As set forth above, the fact finder could rely on Officer Power’s analysis
5 of the accident, the odor of alcohol, the bloodshot eyes, and the open beer cans.
6 For the reasons stated above, we affirm.
7 IT IS SO ORDERED.
8 __________________________________
9 LINDA M. VANZI, Judge
10 WE CONCUR:
11 _________________________________
12 MICHAEL D. BUSTAMANTE, Judge
13 _________________________________
14 CYNTHIA A. FRY, Judge
5