slightest degree standard in New Mexico

2018See State v. Soto, 2007-NMCA-077 , 16 ¶¶ 32, 34, 142 N.M. 32 , 162 P.3d 187 (holding that there was sufficient evidence of 17 DWI pursuant to the impaired to the slightest degree standard, even though there was 18 no evidence of bad driving), overruled on other grounds by State v. Tollardo, 2012- 19 NMSC-008, 275 P.3d 110 .

2018See State v. Soto, 2007-NMCA-077 , 16 ¶¶ 32, 34, 142 N.M. 32 , 162 P.3d 187 (holding that there was sufficient evidence of 17 DWI pursuant to the impaired to the slightest degree standard, even though there was 18 no evidence of bad driving), overruled on other grounds by State v. Tollardo, 2012- 19 NMSC-008, 275 P.3d 110 .

2018See State v. Soto, 2007-NMCA-077 , 16 ¶¶ 32, 34, 142 N.M. 32 , 162 P.3d 187 (holding that there was sufficient evidence of 17 DWI pursuant to the impaired to the slightest degree standard, even though there was 18 no evidence of bad driving), overruled on other grounds by State v. Tollardo, 2012- 19 NMSC-008, 275 P.3d 110 .

2016See State v. Soto, 2007-NMCA-077, ¶¶ 32, 34 , 142 19 N.M. 32 , 162 P.3d 187 (holding that there was sufficient evidence of DWI pursuant 7 1 to the impaired to the slightest degree standard, even though there was no evidence 2 of bad driving), overruled on other grounds by State v. Tollardo, 2012-NMSC-008 , 3 275 P.3d 110 . 4 {13} As to Defendant’s argument that the FSTs are inherently unreliable or fail to 5 adequately prove impairment due to a lack of baseline measurements, Defendant did 6 not make such an argument or offer testimony in support of that argument before the 7 district court.

2016To find Defendant guilty of 17 DWI under the impaired to the slightest degree standard, the State was required to 18 prove beyond a reasonable doubt that Defendant “was less able to the slightest degree, 19 either mentally or physically, or both, to exercise the clear judgment and steady hand 4 1 necessary to handle a vehicle with safety to the driver and the public as a result of 2 drinking [alcohol].” State v. Gurule, 2011-NMCA-042, ¶ 7 , 149 N.M. 599 , 252 P.3d 3 823 (internal quotation marks and citation omitted); see also State v. Sisneros, 1938- 4 NMSC-049, ¶ 18, 42 N.M. 500 , 82 P.2d 27

2016To find Defendant guilty of 17 DWI under the impaired to the slightest degree standard, the State was required to 18 prove beyond a reasonable doubt that Defendant “was less able to the slightest degree, 19 either mentally or physically, or both, to exercise the clear judgment and steady hand 4 1 necessary to handle a vehicle with safety to the driver and the public as a result of 2 drinking [alcohol].” State v. Gurule, 2011-NMCA-042, ¶ 7 , 149 N.M. 599 , 252 P.3d 3 823 (internal quotation marks and citation omitted); see also State v. Sisneros, 1938- 4 NMSC-049, ¶ 18, 42 N.M. 500 , 82 P.2d 27

2017See State v. 5 Santillanes, 1990-NMCA-035 , ¶¶ 1-2, 109 N.M. 781 , 790 P.2d 1062 . 6 {20} Defendant was convicted of DWI, impaired to the slightest degree in violation 7 of Section 66-8-102(A).

2017See State v. 5 Santillanes, 1990-NMCA-035 , ¶¶ 1-2, 109 N.M. 781 , 790 P.2d 1062 . 6 {20} Defendant was convicted of DWI, impaired to the slightest degree in violation 7 of Section 66-8-102(A).

2016To find Defendant guilty of 17 DWI under the impaired to the slightest degree standard, the State was required to 18 prove beyond a reasonable doubt that Defendant “was less able to the slightest degree, 19 either mentally or physically, or both, to exercise the clear judgment and steady hand 4 1 necessary to handle a vehicle with safety to the driver and the public as a result of 2 drinking [alcohol].” State v. Gurule, 2011-NMCA-042, ¶ 7 , 149 N.M. 599 , 252 P.3d 3 823 (internal quotation marks and citation omitted); see also State v. Sisneros, 1938- 4 NMSC-049, ¶ 18, 42 N.M. 500 , 82 P.2d 27

2016To find Defendant guilty of 17 DWI under the impaired to the slightest degree standard, the State was required to 18 prove beyond a reasonable doubt that Defendant “was less able to the slightest degree, 19 either mentally or physically, or both, to exercise the clear judgment and steady hand 4 1 necessary to handle a vehicle with safety to the driver and the public as a result of 2 drinking [alcohol].” State v. Gurule, 2011-NMCA-042, ¶ 7 , 149 N.M. 599 , 252 P.3d 3 823 (internal quotation marks and citation omitted); see also State v. Sisneros, 1938- 4 NMSC-049, ¶ 18, 42 N.M. 500 , 82 P.2d 27

2014See State v. Baldwin, 12 2001-NMCA-063, ¶ 30 , 130 N.M. 705 , 30 P.3d 394 (stating that it is well settled that 13 a defendant who presents evidence waives his claim that the evidence at the close of 14 the state’s case was insufficient for submission to the jury). 15 {6} Additionally, the evidence in this case was sufficient to support Defendant’s 16 conviction under both per se DWI and the impaired to the slightest degree standard. 17 There was evidence that Defendant had a breath test result of 0.08 and that the result 18 was obtained within three hours of his driving. [RP 12] Additionally,

2014See State v. Baldwin, 12 2001-NMCA-063, ¶ 30 , 130 N.M. 705 , 30 P.3d 394 (stating that it is well settled that 13 a defendant who presents evidence waives his claim that the evidence at the close of 14 the state’s case was insufficient for submission to the jury). 15 {6} Additionally, the evidence in this case was sufficient to support Defendant’s 16 conviction under both per se DWI and the impaired to the slightest degree standard. 17 There was evidence that Defendant had a breath test result of 0.08 and that the result 18 was obtained within three hours of his driving. [RP 12] Additionally,

2011Roth v. Thompson, 113 N.M. 331, 334 , 825 P.2d 1241, 1244 (1992).

2011Roth v. Thompson, 113 N.M. 331, 334 , 825 P.2d 1241, 1244 (1992).

2011Indeed, Subsection (A) provides only that “[i]t is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.” Therefore, regardless of whether a defendant is ultimately convicted of a per se violation or under the impaired to the slightest degree standard, the plain meaning of Section 66-2-108 “clearly provides that the only thing necessary to convict a person of DWI is proof that the defendant was driving a vehicle either under the influence of intoxicating liquor or while he had a certain percentage of alcohol in his blood.” Harrison, 115 N

2011Indeed, Subsection (A) provides only that “[i]t is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.” Therefore, regardless of whether a defendant is ultimately convicted of a per se violation or under the impaired to the slightest degree standard, the plain meaning of Section 66-2-108 “clearly provides that the only thing necessary to convict a person of DWI is proof that the defendant was driving a vehicle either under the influence of intoxicating liquor or while he had a certain percentage of alcohol in his blood.” Harrison, 115 N

2011Harrison, 115 N.M. at 77 , 846 P.2d at 1086 . {10} Defendant attempts to distinguish Harrison on two grounds: (1) Harrison did not specifically address a violation of the impaired to the slightest degree standard of Subsection (A); and (2) Defendant’s argument as to intent in this case is that she did not voluntarily become intoxicated, whereas, in Harrison, the defendant argued that he lacked the intent to drive.

2011Harrison, 115 N.M. at 77 , 846 P.2d at 1086 . {10} Defendant attempts to distinguish Harrison on two grounds: (1) Harrison did not specifically address a violation of the impaired to the slightest degree standard of Subsection (A); and (2) Defendant’s argument as to intent in this case is that she did not voluntarily become intoxicated, whereas, in Harrison, the defendant argued that he lacked the intent to drive.