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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. 31,635
5 DEREK TOOHEY,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 William H. Brogan, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jacqueline Cooper, Chief Public Defender
13 B. Douglas Wood III, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 BUSTAMANTE, Judge.
1 Defendant appeals his convictions, pursuant to a conditional plea [RP 101, 124],
2 for driving while under the influence of intoxicating liquor (felony DWI, fourth
3 offense), driving while license suspended or revoked, no proof of insurance, speeding,
4 and failure to yield. [RP 173] Our notice proposed to affirm, and Defendant filed a
5 timely memorandum in opposition. We remain unpersuaded by Defendant’s
6 arguments and therefore affirm.
7 Defendant continues to argue that the district court erred in denying his motion
8 to suppress the results of his blood test because the search warrant authorizing the
9 blood test was deficient. [DS 5; MIO 4; RP 54, 68, 99] In his docketing statement,
10 Defendant pointed to a number of alleged deficiencies in the warrant. [DS 3-4] For
11 most of the alleged deficiencies, Defendant’s memorandum in opposition provides no
12 further arguments in support of his position. See Hennessy v. Duryea, 1998-NMCA-
13 036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in
14 summary calendar cases, the burden is on the party opposing the proposed disposition
15 to clearly point out errors in fact or law.”).
16 Instead, Defendant’s memorandum in opposition focuses only on his continued
17 assertion that the affidavit was deficient because it failed to state that the blood would
18 produce material evidence for a felony prosecution. [DS 4; MIO 5] We disagree. As
19 provided in our notice, the affidavit provides that Defendant “has three or more prior
2
1 DWI arrests (disposition unknown).” [RP 59, 123] This statement provides sufficient
2 probable cause that Defendant may have had three prior DWI’s, with his current arrest
3 constituting a potential fourth, and therefore felony DWI. See generally State v.
4 Duquette, 2000-NMCA-006, ¶ 16, 128 N.M. 530, 994 P.2d 776 (providing that DWI
5 can be the underlying felony offense for probable cause to justify a search warrant
6 under Section 66-8-111(A)), limited on other grounds by State v. Williamson, 2009-
7 NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376; NMSA 1978, § 66-8-102(G)
8 (providing that, upon a fourth DWI conviction, an offender is guilty of a fourth degree
9 felony).
10 While the affidavit does not expressly state that it is premised on a potential
11 felony DWI prosecution [MIO 5], the basis for the affidavit is apparent given that it
12 references Defendant’s three prior DWI’s and is premised on his arrest for a fourth
13 DWI. [RP 59] Moreover, we recognize that the affidavit provides that the disposition
14 for the three prior DWI arrests is unknown. [MIO 6; RP 59] The affidavit’s reference
15 to three prior DWI arrests as provided by Defendant’s Triple III Inter Agency
16 Identification Index [RP 59], however, nonetheless provides a substantial basis to
17 support a finding of probable cause. See State v. Williamson, 2009-NMSC-039, ¶ 31
18 (recognizing that “[T]he degree of proof necessary to establish probable cause for the
3
1 issuance of a search warrant ‘is more than a suspicion or possibility but less than a
2 certainty of proof.” (internal quotations marks and citation omitted)).
3 Citing to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967) and
4 State v. Boyer, 103 N.M. 655, 658-59, 712 P.2d 1, 4-6 (Ct. App. 1985) [MIO 7],
5 Defendant also continues to argue that there was insufficient evidence that he has
6 three prior DWI convictions. [DS 4, 5; MIO 7] This argument was not adequately
7 preserved. While Defendant’s conditional plea reserved the denial of his motion to
8 suppress [RP 101], the sufficiency of the evidence for his three prior DWI convictions
9 was not the subject of his motion to suppress, and Defendant does not dispute that the
10 record indicates that he specifically stipulated below that he has three prior DWI
11 convictions. [RP 170-72, 174] See State v. Lopez, 2009-NMCA-127, ¶ 43, 147 N.M.
12 364, 223 P.3d 361 (providing that the records of prior convictions must be properly
13 admitted into the record and available for review on appeal, unless such proof is
14 stipulated to or otherwise waived by the defendant). Moreover, apart from the lack
15 of preservation, based on the recitation in the judgment and sentence of the three prior
16 DWI’s [RP 174], the State nonetheless satisfied its prima facie burden to show that
17 Defendant has prior DWI convictions, and there is no indication that Defendant
18 presented any evidence to the contrary. See generally id. ¶ 36 (addressing the State’s
4
1 burden of proof for prior DWI convictions for purposes of enhancing a DWI
2 conviction).
3 To conclude, for reasons set forth herein and in our notice, we affirm.
4 IT IS SO ORDERED.
5
6 MICHAEL D. BUSTAMANTE, Judge
7 WE CONCUR:
8
9 CELIA FOY CASTILLO, Chief Judge
10
11 JAMES J. WECHSLER, Judge
5