State v. Griego

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 35,392 5 MAXWELL GRIEGO, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Cristina T. Jaramillo, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Steven J. Forsberg, Assistant Public Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 WECHSLER, Judge. 1 {1} Defendant appeals from a conviction for DWI. We issued a notice of proposed 2 summary disposition, proposing to uphold the conviction. Defendant has filed a 3 memorandum in opposition. After due consideration, we remain unpersuaded. We 4 therefore affirm. 5 {2} In the docketing statement, Defendant raised three issues, all of which are 6 renewed. [DS 14-15; MIO 1-2] Because the pertinent background information was 7 previously set forth, we will avoid undue reiteration here, focusing instead on the 8 content of the memorandum in opposition. 9 {3} With respect to the first and second issues, Defendant concedes that the 10 decision in State v. Montoya, ___ - NMCA - ___, ___ P.3d ___ (No. 34,298, June 29, 11 2016), is controlling. Defendant encourages the Court to reconsider that decision. 12 [MIO 1] We decline. 13 {4} With respect to the third and final issue, Defendant continues to argue that the 14 trial court refused to consider countervailing evidence. [MIO 1-2] However, the trial 15 court’s comments, as a whole, reflect that the trial court duly considered the evidence 16 presented, including the testimony of the witness who discussed uncertainty. [RP 60- 17 62, 64] And ultimately, the trial court’s reliance upon the BAT results was 18 permissible. See id. ¶ 34 (similarly concluding that “SLD-approved chemical test 2 1 results of 0.08 or higher are sufficient” to support convictions for per se DWI, and 2 upholding a conviction where the defendant’s breath test results were .08/.08). 3 {5} Accordingly, for the reasons stated, we affirm. 4 {6} IT IS SO ORDERED. 5 ________________________________ 6 JAMES J. WECHSLER, Judge 7 WE CONCUR: 8 ________________________________ 9 JONATHAN B. SUTIN, Judge 10 ________________________________ 11 LINDA M. VANZI, Judge 3