State v. Wheeler ( 2014 )

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,615 5 DANIEL WHEELER, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Ross C. Sanchez, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Law Offices of the Public Defender 13 Jorge A. Alvarado, Chief Public Defender 14 Santa Fe, NM 15 Sergio Viscoli, Appellate Defender 16 Josephine H. Ford, Assistant Public Defender 17 Albuquerque, NM 18 for Appellant 19 MEMORANDUM OPINION 20 HANISEE, Judge. 1 {1} Defendant appeals from the district court’s judgment in an on-record appeal that 2 affirms the metropolitan court’s sentencing order. The metropolitan court found 3 Defendant guilty of first offense DWI and deferred his sentence on the condition that 4 he serve one year on supervised probation. Unpersuaded by Defendant’s docketing 5 statement, we entered a notice of proposed summary disposition, proposing to affirm. 6 Defendant has filed a memorandum in opposition to our notice. We remain 7 unpersuaded and affirm. 8 {2} On appeal, Defendant argues that the officer lacked probable cause to arrest 9 him. [DS 18-19; MIO 18-20] Specifically, Defendant contends that the officer did not 10 have a reasonable belief that he was impaired by alcohol based on the field sobriety 11 tests (FSTs) or other behavioral evidence. [DS 18-20] Because of the district court 12 opinion’s thoroughness and accuracy in applying the law to the detailed facts, our 13 notice proposed to adopt the district court’s opinion in its entirety. We explained to 14 Defendant that if he wanted this Court to arrive at a different conclusion, in any 15 response he may have wished to file, he needed to persuade us that the district court’s 16 analysis was incorrect. 17 {3} In his response to our notice, Defendant provides us with an extremely lengthy 18 recitation of the facts, [MIO 1-18] which is identical to the facts in the docketing 19 statement. Defendant again does not indicate whether he disputes any facts as set forth 2 1 by the district court, which we specifically proposed to adopt on appeal. Again, we see 2 no material distinction between the facts as set forth in the district court’s opinion [RP 3 106-11, 114-15] and those set forth in Defendant’s response. [MIO 1-18] Defendant 4 continues to just emphasize facts favorable to his position. This does not persuade us 5 that the metropolitan court erred or that the facts recited in the district court’s opinion 6 were inaccurate. 7 {4} As for the district court’s analysis of the facts, which we also proposed to adopt, 8 Defendant does not explain why he believes it was incorrect. Defendant continues to 9 argue that the FSTs were not designed to measure impairment with scientific 10 accuracy. [MIO 19] We remain of the opinion that the district court’s opinion fully 11 and appropriately addresses all of the matters Defendant raises in this appeal. To avoid 12 duplication of efforts, we rely on the district court’s opinion and simply affirm the 13 metropolitan court on that basis. 14 5} IT IS SO ORDERED. 15 16 J. MILES HANISEE, Judge 17 WE CONCUR: 18 19 JAMES J. WECHSLER, Judge 3 1 2 CYNTHIA A. FRY, Judge 4