field sobriety test in New Mexico

2019See State v. Wright, 1993-NMCA-153 , ¶ 15, 116 N.M. 832 , 867 P.2d 1214 (reasoning that a jury could infer consciousness of guilt from a defendant’s refusal to take a field sobriety test); see also McKay v. Davis, 1982-NMSC-122 , ¶ 16, 99 N.M. 29 , 653 P.2d 860 (holding that “a defendant’s refusal to take a chemical test is relevant to show his consciousness of guilt and fear of the test results”). {29} Viewing the evidence in the light most favorable to the verdict and indulging all reasonable inferences, we conclude that substantial evidence supported Defendant’s conviction for DWI.

2019See State v. Wright, 1993-NMCA-153 , ¶ 15, 116 N.M. 832 , 867 P.2d 1214 (reasoning that a jury could infer consciousness of guilt from a defendant’s refusal to take a field sobriety test); see also McKay v. Davis, 1982-NMSC-122 , ¶ 16, 99 N.M. 29 , 653 P.2d 860 (holding that “a defendant’s refusal to take a chemical test is relevant to show his consciousness of guilt and fear of the test results”). {29} Viewing the evidence in the light most favorable to the verdict and indulging all reasonable inferences, we conclude that substantial evidence supported Defendant’s conviction for DWI.

2011Relying on Pennsylvania v. Muniz, 496 U.S. 582, 592 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990), this Court has also concluded that “[a] person’s responses to a field sobriety test are, at least for the most part, not testimonial.” State v. Wright, 116 N.M. 832, 835 , 867 P.2d 1214, 1217 (Ct.App.1993).

2011Relying on Pennsylvania v. Muniz, 496 U.S. 582, 592 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990), this Court has also concluded that “[a] person’s responses to a field sobriety test are, at least for the most part, not testimonial.” State v. Wright, 116 N.M. 832, 835 , 867 P.2d 1214, 1217 (Ct.App.1993).

2007Again, the Court emphasized that a trial court’s inquiry is the “threshold determination that the underlying ‘scientific technique is based upon well-recognized scientific principle and ... is capable of supporting opinions based upon reasonable probability rather than conjecture.’ ” Id. ¶ 40 (quoting Alberico, 116 N.M. at 167, 861 P.2d at 203) (emphasis added). {19} Similarly, in Lee v. Martinez, 2004-NMSC-027 , 136 N.M. 166 , 96 P.3d 291 , the Court determined that polygraph test results are sufficiently reliable to be admitted, “provided the expert is qualified and the examination is conduc

2007Again, the Court emphasized that a trial court's inquiry is the "threshold determination that the underlying `scientific technique is based upon well-recognized scientific principle and . . . is capable of supporting opinions based upon reasonable probability rather than conjecture.'" Id. ¶ 40 (quoting Alberico, 116 N.M. at 167, 861 P.2d at 203) (emphasis added). {19} Similarly, in Lee v. Martinez, 2004-NMSC-027 , 136 N.M. 166 , 96 P.3d 291 , the Court determined that polygraph test results are sufficiently reliable to be admitted, "provided the expert is qualified and the examination is condu

2007Again, the Court emphasized that a trial court’s inquiry is the “threshold determination that the underlying ‘scientific technique is based upon well-recognized scientific principle and ... is capable of supporting opinions based upon reasonable probability rather than conjecture.’ ” Id. ¶ 40 (quoting Alberico, 116 N.M. at 167, 861 P.2d at 203) (emphasis added). {19} Similarly, in Lee v. Martinez, 2004-NMSC-027 , 136 N.M. 166 , 96 P.3d 291 , the Court determined that polygraph test results are sufficiently reliable to be admitted, “provided the expert is qualified and the examination is conduc

2007Again, the Court emphasized that a trial court's inquiry is the "threshold determination that the underlying `scientific technique is based upon well-recognized scientific principle and . . . is capable of supporting opinions based upon reasonable probability rather than conjecture.'" Id. ¶ 40 (quoting Alberico, 116 N.M. at 167, 861 P.2d at 203) (emphasis added). {19} Similarly, in Lee v. Martinez, 2004-NMSC-027 , 136 N.M. 166 , 96 P.3d 291 , the Court determined that polygraph test results are sufficiently reliable to be admitted, "provided the expert is qualified and the examination is condu

2024See, e.g., State v. Nevarez, 2010-NMCA-049, ¶¶ 34, 36 , 148 1The record reveals that, prior to Defendant taking the walk-and-turn test, Defendant told Officer Rodarte that he did not have any conditions that would affect his ability to walk, turn, or stand.

2024See State v. Pickett, 2009-NMCA-077, ¶ 21 , 146 N.M. 655 , 213 P.3d 805 (providing that where behavior exhibited during a field sobriety test is sufficient to lead a layperson to believe a person is intoxicated, specific testimony regarding the technical “clues” themselves is unnecessary for a finding of impairment). {23} In sum, we reject Defendant’s attacks on his DUI conviction and, reviewing the evidence in the light most favorable to the verdict, we conclude that sufficient evidence supports this conviction.

2024See State v. Pickett, 2009-NMCA-077, ¶ 21 , 146 N.M. 655 , 213 P.3d 805 (providing that where behavior exhibited during a field sobriety test is sufficient to lead a layperson to believe a person is intoxicated, specific testimony regarding the technical “clues” themselves is unnecessary for a finding of impairment). {23} In sum, we reject Defendant’s attacks on his DUI conviction and, reviewing the evidence in the light most favorable to the verdict, we conclude that sufficient evidence supports this conviction.

2019See Wisdom, 2017-NMCA-066, ¶ 35 (“Circumstantial evidence alone may be sufficient to allow a fact-finder to infer that the accused drove while intoxicated.”).

2019See State v. Wright, 1993-NMCA-153 , ¶ 15, 116 N.M. 832 , 867 P.2d 1214 (reasoning that a jury could infer consciousness of guilt from a defendant’s refusal to take a field sobriety test); see also McKay v. Davis, 1982-NMSC-122 , ¶ 16, 99 N.M. 29 , 653 P.2d 860 (holding that “a defendant’s refusal to take a chemical test is relevant to show his consciousness of guilt and fear of the test results”). {29} Viewing the evidence in the light most favorable to the verdict and indulging all reasonable inferences, we conclude that substantial evidence supported Defendant’s conviction for DWI.

2019See State v. Wright, 1993-NMCA-153 , ¶ 15, 116 N.M. 832 , 867 P.2d 1214 (reasoning that a jury could infer consciousness of guilt from a defendant’s refusal to take a field sobriety test); see also McKay v. Davis, 1982-NMSC-122 , ¶ 16, 99 N.M. 29 , 653 P.2d 860 (holding that “a defendant’s refusal to take a chemical test is relevant to show his consciousness of guilt and fear of the test results”). {29} Viewing the evidence in the light most favorable to the verdict and indulging all reasonable inferences, we conclude that substantial evidence supported Defendant’s conviction for DWI.

2013See State 2 v. Sommer, 1994-NMCA-070 , ¶ 11 (recognizing that issues sought to be presented 3 must be viable). 4 {7} With regard to issue (4), Defendant maintains that the evidence was 5 insufficient to support his conviction for driving while under the influence of 6 intoxicating liquor or drugs. [DS 20; MIO 13] See NMSA 1978, § 66-8-102(A) 7 (2010); see also State v. Dutchover, 1973-NMCA-052 , ¶ 7, 85 N.M. 72 , 509 P.2d 264 8 (observing that DUI may be established through evidence that the defendant’s ability 9 to drive was impaired to the slightest degree).While Defendant asserts that his p

2013See State 2 v. Sommer, 1994-NMCA-070 , ¶ 11 (recognizing that issues sought to be presented 3 must be viable). 4 {7} With regard to issue (4), Defendant maintains that the evidence was 5 insufficient to support his conviction for driving while under the influence of 6 intoxicating liquor or drugs. [DS 20; MIO 13] See NMSA 1978, § 66-8-102(A) 7 (2010); see also State v. Dutchover, 1973-NMCA-052 , ¶ 7, 85 N.M. 72 , 509 P.2d 264 8 (observing that DUI may be established through evidence that the defendant’s ability 9 to drive was impaired to the slightest degree).While Defendant asserts that his p

2013See State v. 12 Neal, 2008-NMCA-008, ¶ 29 , 143 N.M. 341 , 176 P.3d 330 (affirming a DWI 13 conviction based on evidence that the defendant veered over the shoulder line three 14 times, smelled of alcohol, had bloodshot watery eyes, admitted drinking, and failed 15 to adequately perform field sobriety tests).

2013See State v. 12 Neal, 2008-NMCA-008, ¶ 29 , 143 N.M. 341 , 176 P.3d 330 (affirming a DWI 13 conviction based on evidence that the defendant veered over the shoulder line three 14 times, smelled of alcohol, had bloodshot watery eyes, admitted drinking, and failed 15 to adequately perform field sobriety tests).

2011Ct. of Ariz., 154 Ariz. 275 , 742 P.2d 286, 289 (Ariz.Ct.App. 1987); Hughes v. State, 259 Ga. 227 , 378 S.E.2d 853, 854 (1989); State v. Maze, 16 Kan.App.2d 527 , 825 P.2d 1169, 1173 (1992); Vanhouton, 676 N.E.2d at 466 ; State v. Devlin, 1999 MT 90, ¶ 20 , 294 Mont. 215 , 980 P.2d 1037 ; State v. Zummach, 467 N.W.2d 745, 746 (N.D.1991); Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997) (en banc). {20} Counting or recitation of the alphabet during a field sobriety test do not relate factual assertions specific to the person being questioned or otherwise require a person to reveal his or

2011Ct. of Ariz., 154 Ariz. 275 , 742 P.2d 286, 289 (Ariz.Ct.App. 1987); Hughes v. State, 259 Ga. 227 , 378 S.E.2d 853, 854 (1989); State v. Maze, 16 Kan.App.2d 527 , 825 P.2d 1169, 1173 (1992); Vanhouton, 676 N.E.2d at 466 ; State v. Devlin, 1999 MT 90, ¶ 20 , 294 Mont. 215 , 980 P.2d 1037 ; State v. Zummach, 467 N.W.2d 745, 746 (N.D.1991); Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997) (en banc). {20} Counting or recitation of the alphabet during a field sobriety test do not relate factual assertions specific to the person being questioned or otherwise require a person to reveal his or

2011Ct. of Ariz., 154 Ariz. 275 , 742 P.2d 286, 289 (Ariz.Ct.App. 1987); Hughes v. State, 259 Ga. 227 , 378 S.E.2d 853, 854 (1989); State v. Maze, 16 Kan.App.2d 527 , 825 P.2d 1169, 1173 (1992); Vanhouton, 676 N.E.2d at 466 ; State v. Devlin, 1999 MT 90, ¶ 20 , 294 Mont. 215 , 980 P.2d 1037 ; State v. Zummach, 467 N.W.2d 745, 746 (N.D.1991); Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997) (en banc). {20} Counting or recitation of the alphabet during a field sobriety test do not relate factual assertions specific to the person being questioned or otherwise require a person to reveal his or

2011Ct. of Ariz., 154 Ariz. 275 , 742 P.2d 286, 289 (Ariz.Ct.App. 1987); Hughes v. State, 259 Ga. 227 , 378 S.E.2d 853, 854 (1989); State v. Maze, 16 Kan.App.2d 527 , 825 P.2d 1169, 1173 (1992); Vanhouton, 676 N.E.2d at 466 ; State v. Devlin, 1999 MT 90, ¶ 20 , 294 Mont. 215 , 980 P.2d 1037 ; State v. Zummach, 467 N.W.2d 745, 746 (N.D.1991); Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997) (en banc). {20} Counting or recitation of the alphabet during a field sobriety test do not relate factual assertions specific to the person being questioned or otherwise require a person to reveal his or

2011Ct. of Ariz., 154 Ariz. 275 , 742 P.2d 286, 289 (Ariz.Ct.App. 1987); Hughes v. State, 259 Ga. 227 , 378 S.E.2d 853, 854 (1989); State v. Maze, 16 Kan.App.2d 527 , 825 P.2d 1169, 1173 (1992); Vanhouton, 676 N.E.2d at 466 ; State v. Devlin, 1999 MT 90, ¶ 20 , 294 Mont. 215 , 980 P.2d 1037 ; State v. Zummach, 467 N.W.2d 745, 746 (N.D.1991); Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997) (en banc). {20} Counting or recitation of the alphabet during a field sobriety test do not relate factual assertions specific to the person being questioned or otherwise require a person to reveal his or

2011Ct. of Ariz., 154 Ariz. 275 , 742 P.2d 286, 289 (Ariz.Ct.App. 1987); Hughes v. State, 259 Ga. 227 , 378 S.E.2d 853, 854 (1989); State v. Maze, 16 Kan.App.2d 527 , 825 P.2d 1169, 1173 (1992); Vanhouton, 676 N.E.2d at 466 ; State v. Devlin, 1999 MT 90, ¶ 20 , 294 Mont. 215 , 980 P.2d 1037 ; State v. Zummach, 467 N.W.2d 745, 746 (N.D.1991); Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997) (en banc). {20} Counting or recitation of the alphabet during a field sobriety test do not relate factual assertions specific to the person being questioned or otherwise require a person to reveal his or

2011Ct. of Ariz., 154 Ariz. 275 , 742 P.2d 286, 289 (Ariz.Ct.App. 1987); Hughes v. State, 259 Ga. 227 , 378 S.E.2d 853, 854 (1989); State v. Maze, 16 Kan.App.2d 527 , 825 P.2d 1169, 1173 (1992); Vanhouton, 676 N.E.2d at 466 ; State v. Devlin, 1999 MT 90, ¶ 20 , 294 Mont. 215 , 980 P.2d 1037 ; State v. Zummach, 467 N.W.2d 745, 746 (N.D.1991); Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997) (en banc). {20} Counting or recitation of the alphabet during a field sobriety test do not relate factual assertions specific to the person being questioned or otherwise require a person to reveal his or

2011Ct. of Ariz., 154 Ariz. 275 , 742 P.2d 286, 289 (Ariz.Ct.App. 1987); Hughes v. State, 259 Ga. 227 , 378 S.E.2d 853, 854 (1989); State v. Maze, 16 Kan.App.2d 527 , 825 P.2d 1169, 1173 (1992); Vanhouton, 676 N.E.2d at 466 ; State v. Devlin, 1999 MT 90, ¶ 20 , 294 Mont. 215 , 980 P.2d 1037 ; State v. Zummach, 467 N.W.2d 745, 746 (N.D.1991); Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997) (en banc). {20} Counting or recitation of the alphabet during a field sobriety test do not relate factual assertions specific to the person being questioned or otherwise require a person to reveal his or

2010See State v. Wright, 116 N.M. 19 832, 835 , 867 P.2d 1214, 1217 (Ct. App. 1993).

2010See 116 N.M. at 836, 867 P.2d 16 at 1217 (holding that Article II, Section 15 is not implicated by the refusal to take a 17 field sobriety test and stating that there is “no meaningful distinction between 18 evidence of a defendant’s refusal to take a breath-alcohol test and evidence of a 19 refusal to take a field sobriety test”).

2010See State v. Allen, 91 N.M. 759, 760 , 581 P.2d 22, 23 (Ct.App.1978) (stating that evidence of collateral offense may be admitted if relevant to a “material element of the crime charged which is in issue and upon which there is doubt” (internal quotation marks and citation omitted)). {11} Defendant acknowledges that a general reference to whether or not Defendant had taken a field sobriety test prior to the incident in question might be relevant and material.

2010See State v. Allen, 91 N.M. 759, 760 , 581 P.2d 22, 23 (Ct.App.1978) (stating that evidence of collateral offense may be admitted if relevant to a “material element of the crime charged which is in issue and upon which there is doubt” (internal quotation marks and citation omitted)). {11} Defendant acknowledges that a general reference to whether or not Defendant had taken a field sobriety test prior to the incident in question might be relevant and material.

2010See State v. Harrison, 2008-NMCA-107, ¶ 14 , 144 5 1 N.M. 651 , 190 P.3d 1146 (arriving at a similar conclusion under analogous 2 circumstances), cert. granted, 2008-NMCERT-008 , 145 N.M. 255 , 195 P.3d 1267 . 3 Defendant further argues that the alcohol-related inquiry should be regarded as 4 impermissible when evaluated in light of the heightened protections afforded by the 5 New Mexico Constitution. [MIO 13-18] Contrary to Defendant’s assertion, however, 6 [MIO 6, 13] we find no indication that this argument was advanced below.

2010See State v. Harrison, 2008-NMCA-107, ¶ 14 , 144 5 1 N.M. 651 , 190 P.3d 1146 (arriving at a similar conclusion under analogous 2 circumstances), cert. granted, 2008-NMCERT-008 , 145 N.M. 255 , 195 P.3d 1267 . 3 Defendant further argues that the alcohol-related inquiry should be regarded as 4 impermissible when evaluated in light of the heightened protections afforded by the 5 New Mexico Constitution. [MIO 13-18] Contrary to Defendant’s assertion, however, 6 [MIO 6, 13] we find no indication that this argument was advanced below.

2010See State v. Harrison, 2008-NMCA-107, ¶ 14 , 144 5 1 N.M. 651 , 190 P.3d 1146 (arriving at a similar conclusion under analogous 2 circumstances), cert. granted, 2008-NMCERT-008 , 145 N.M. 255 , 195 P.3d 1267 . 3 Defendant further argues that the alcohol-related inquiry should be regarded as 4 impermissible when evaluated in light of the heightened protections afforded by the 5 New Mexico Constitution. [MIO 13-18] Contrary to Defendant’s assertion, however, 6 [MIO 6, 13] we find no indication that this argument was advanced below.

2010See State v. Harrison, 2008-NMCA-107, ¶ 14 , 144 5 1 N.M. 651 , 190 P.3d 1146 (arriving at a similar conclusion under analogous 2 circumstances), cert. granted, 2008-NMCERT-008 , 145 N.M. 255 , 195 P.3d 1267 . 3 Defendant further argues that the alcohol-related inquiry should be regarded as 4 impermissible when evaluated in light of the heightened protections afforded by the 5 New Mexico Constitution. [MIO 13-18] Contrary to Defendant’s assertion, however, 6 [MIO 6, 13] we find no indication that this argument was advanced below.

2009See Rule 11-402 NMRA (stating that relevant 7 1 evidence is generally admissible). 2 Warrant for Blood Sample 3 Defendant also argues that the district court erred in refusing to allow him to 4 cross-examine Deputy Mason as to whether he could have obtained a search warrant 5 for a sample of Defendant’s blood. [MIO 6-9] “Ordinarily, we review a trial court’s 6 ruling on the scope of cross-examination for an abuse of discretion.” State v. Silva, 7 2007-NMCA-117, ¶ 21 , 142 N.M. 686 , 168 P.3d 1110 .

2009See Rule 11-402 NMRA (stating that relevant 7 1 evidence is generally admissible). 2 Warrant for Blood Sample 3 Defendant also argues that the district court erred in refusing to allow him to 4 cross-examine Deputy Mason as to whether he could have obtained a search warrant 5 for a sample of Defendant’s blood. [MIO 6-9] “Ordinarily, we review a trial court’s 6 ruling on the scope of cross-examination for an abuse of discretion.” State v. Silva, 7 2007-NMCA-117, ¶ 21 , 142 N.M. 686 , 168 P.3d 1110 .

2009See Rule 11-402 NMRA (stating that relevant 7 1 evidence is generally admissible). 2 Warrant for Blood Sample 3 Defendant also argues that the district court erred in refusing to allow him to 4 cross-examine Deputy Mason as to whether he could have obtained a search warrant 5 for a sample of Defendant’s blood. [MIO 6-9] “Ordinarily, we review a trial court’s 6 ruling on the scope of cross-examination for an abuse of discretion.” State v. Silva, 7 2007-NMCA-117, ¶ 21 , 142 N.M. 686 , 168 P.3d 1110 .

2008See, e.g., State v. Day, 2008-NMSC-007, ¶ 3 , 143 N.M. 359 , 176 P.3d 1091 (noting that the defendant was placed into police custody immediately after the police “recovered a half-full twelve-ounce can of Budweiser beer on the seat of the car which was still cool to the touch, ‘a freshly opened can’”); Cavanaugh, 116 N.M. at 828 , 867 P.2d at 1209 (noting that defendant failed a field sobriety test before he got behind the wheel of a car and “sped off’). {36} The State claims that circumstantial evidence existed in the present case to support Smock’s factual assumption because “[n]o one saw [D

2008We agree with People v. Walter, 374 Ill.App.3d 763 , 313 Ill.Dec. 344 , 872 N.E.2d 104, 113 (2007) when it states: A request to submit to a field sobriety test, without more, is still a request, and whether submission to the particular request at issue amounts to a seizure may very well depend on the many possible circumstances surrounding the request as well as the nature of the request itself.

2008We agree with People v. Walter, 374 Ill.App.3d 763 , 313 Ill.Dec. 344 , 872 N.E.2d 104, 113 (2007) when it states: A request to submit to a field sobriety test, without more, is still a request, and whether submission to the particular request at issue amounts to a seizure may very well depend on the many possible circumstances surrounding the request as well as the nature of the request itself.