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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. 33,406

 5 WALDEN MINOLI,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Benjamin Chavez, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee


12 Benjamin C. Wilson
13 Albuquerque, NM

14 for Appellant


15                                 MEMORANDUM OPINION

16 HANISEE, Judge.
 1   {1}   Defendant appeals from an on-record district court judgment affirming

 2 Defendant’s conviction for DWI. We issued a calendar notice proposing to affirm.

 3 Defendant has responded with a memorandum in opposition. Not persuaded, we

 4 affirm.

 5         REASONABLE SUSPICION

 6   {2}   Defendant continues to argue that the officer lacked reasonable suspicion to

 7 stop his vehicle. [MIO 2] “In reviewing a [district] court’s denial of a motion to

 8 suppress, we observe the distinction between factual determinations which are subject

 9 to a substantial evidence standard of review and application of law to the facts, which

10 is subject to de novo review. We view the facts in the manner most favorable to the

11 prevailing party and defer to the district court’s findings of fact if substantial evidence

12 exists to support those findings. Questions of reasonable suspicion are reviewed de

13 novo by looking at the totality of the circumstances to determine whether the detention

14 was justified.” State v. Hubble, 2009-NMSC-014, ¶ 5, 146 N.M. 70, 206 P.3d 579

15 (alteration, internal quotation marks, and citations omitted).

16   {3}   Here, the officer who stopped Defendant’s vehicle testified that Defendant’s

17 vehicle was straddling a marked traffic lane. [MIO 4] The officer followed

18 Defendant’s vehicle for about a block, at which time Defendant made an abrupt turn

19 into a driveway, and the officer engaged his emergency equipment. [RP 155-56]

                                                2
 1 Albuquerque Ordinance Section 8-2-1-42 states that “[n]o operator of a vehicle shall

 2 fail to keep such vehicle within the boundaries of a marked traffic lane, except when

 3 lawfully passing another, making a lawful turning movement or lawfully changing

 4 lanes.” [RP 160]

 5   {4}   Defendant’s docketing statement claimed that the officer did not have

 6 reasonable suspicion to stop him based on his driving conduct because it did not pose

 7 a safety hazard. We believe that the officer could reasonably conclude that Defendant

 8 did pose a safety challenge, particularly in light of the continuous nature of the act of

 9 straddling the lanes. Nevertheless, even if the officer had been incorrect, his mistake

10 would have been one of fact, and not law. See Hubble, 2009-NMSC-014, ¶¶ 31-32

11 (holding that the officer did not make any mistake, but even if he did, the mistake was

12 one of fact—determining whether the relative positions of vehicles and their direction

13 of travel constituted a scenario where he may have been affected by the defendant's

14 movement—and that “any mistakes regarding these factual judgments would be

15 classified as mistakes of fact and not mistakes of law”).

16   {5}   In his memorandum in opposition, Defendant claims that the officer made a

17 mistake of law, because he believed that the act of turning into the driveway

18 constituted a violation of the ordinance. [MIO 4] However, we conclude that the

19 officer had reasonable suspicion to believe that the ordinance had been violated prior


                                               3
 1 to the turn, based on the straddling of the lanes by Defendant’s vehicle that occurred

 2 a block before the turn, and continued for some time thereafter.

 3         EXPERT TESTIMONY

 4   {6}   Defendant continues to challenge the exclusion of expert testimony. [DS 26-27]

 5 Specifically, Defendant claims that the trial court erred in excluding his expert’s

 6 testimony on the “Widmark equation,” although the expert was allowed to testify with

 7 respect to the reliability of the breath machine. [DS 27] We review for an abuse of

 8 discretion the admission or exclusion of an expert's testimony; however, “the

 9 threshold question of whether the . . . court applied the correct evidentiary rule or

10 standard is subject to de novo review.” State v. Torres, 1999-NMSC-010, ¶¶ 27-28,

11 127 N.M. 20, 976 P.2d 20.

12   {7}   The trial court considered the admissibility of the expert’s testimony after

13 allowing the parties to voir dire the expert outside of the presence of the jury. [MIO

14 6] To the extent that Defendant is raising a procedural challenge by claiming that the

15 trial court should have held a pre-trial hearing on the expert testimony, Defendant has

16 not established that a pre-trial hearing would have led to a different result. See In re

17 Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318, 322 (“An

18 assertion of prejudice is not a showing of prejudice.”).




                                              4
 1   {8}    With respect to the excluded testimony, the expert was allowed to challenge the

 2 reliability of the breath test machine, based on the same theories that would have been

 3 used to come up with an alternative BAC number, i.e. the weight of the subject, the

 4 specific gravity of alcohol, and the blood-water ratio. [RP 157] The district court

 5 allowed this testimony, but only excluded the independent BAC number that would

 6 be calculated if the machine results were deemed unreliable. [RP 157-58] We

 7 conclude that the trial court acted within its discretion, because the jury would only

 8 need to rely on the alternative BAC number if it rejected the reliability of the machine

 9 results, in which case it would have acquitted Defendant. In other words, the district

10 court could conclude that the alternative result was unnecessary, and its exclusion

11 would not prejudice Defendant.

12   {9}    For the reasons set forth above, we affirm.

13   {10}   IT IS SO ORDERED.




14
15                                          J. MILES HANSIEE, Judge

16 WE CONCUR:



17
18 JAMES J. WECHSLER, Judge

                                               5
1
2 M. MONICA ZAMORA, Judge




                            6
