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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. 33,584

 5 EMILY JONES,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Briana H. Zamora, District Judge


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

11 for Appellee

12 Todd B. Hotchkiss, Attorney at Law, LLC
13 Todd B. Hotchkiss
14 Albuquerque, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 HANISEE Judge.
 1   {1}   Defendant appeals from an on-the-record district court judgment reversing her

 2 conviction for driving while intoxicated and remanding the case to the metropolitan

 3 court for a new trial. Because the district court reversed her conviction, Defendant’s

 4 sole issue on appeal claims that any retrial is barred by double jeopardy. We proposed

 5 to hold that retrial was not barred. Defendant has responded with a memorandum in

 6 opposition. Not persuaded, we affirm the district court judgment.

 7   {2}   Defendant contends that the district court should have barred retrial after it

 8 concluded that the metropolitan court improperly considered extra-judicial

 9 information. Defendant claims that the consideration of this information, including

10 past dealings with a witness, should bar any new trial. However, the fact thatevidence

11 was improperly considered does not, in and of itself, bar re-trial. See State v. Post,

12 1989-NMCA-090, ¶ 22, 109 N.M. 177, 783 P.2d 487 (“If all of the evidence,

13 including the wrongfully admitted evidence, is sufficient, then retrial following

14 appeal is not barred [by the Double Jeopardy Clause].”). We therefore consider the

15 sufficiency of the evidence.

16   {3}   A sufficiency of the evidence review involves a two-step process. Initially, the

17 evidence is viewed in the light most favorable to the verdict. Then the appellate court

18 must make a legal determination of “whether the evidence viewed in this manner

19 could justify a finding by any rational trier of fact that each element of the crime

20 charged has been established beyond a reasonable doubt.” State v. Apodaca, 1994-

                                               2
 1 NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation marks and citations

 2 omitted).

 3   {4}   In order to convict Defendant of DWI, the evidence had to show that

 4 Defendant was under the influence of intoxicating liquor while operating a motor

 5 vehicle, and that this affected her ability to operate the vehicle to at least the slightest

 6 degree. NMSA 1978, § 66-8-102(A) (2010); UJI 14-4501 NMRA. We conclude that

 7 the facts set forth in the district court memorandum opinion indicate that the State

 8 presented sufficient evidence to support the conviction. Specifically, during the field

 9 sobriety tests Defendant failed to follow instructions, made several mistakes during

10 the walk-and-turn, used her arms for balance, and swayed. [RP 83] Defendant

11 admitted to drinking alcohol, and had physical manifestations of alcohol

12 consumption. [RP 83] In light of this evidence, we believe that there was sufficient

13 evidence presented to support Defendant’s DWI conviction. See, e.g., State v. Soto,

14 2007-NMCA-077, ¶ 34, 142 N.M. 32, 162 P.3d 187 (holding that there was sufficient

15 evidence to support a conviction where officers observed the defendant driving,

16 where the defendant admitted to drinking, and where the defendant had bloodshot

17 watery eyes, smelled of alcohol, and slurred speech); State v. Notah-Hunter, 2005-

18 NMCA-074, ¶ 24, 137 N.M. 597, 113 P.3d 867 (holding that evidence that a

19 defendant smelled of alcohol, had slurred speech, admitted to drinking alcohol, failed



                                                3
1 field sobriety tests, and was driving erratically was sufficient to uphold a conviction

2 for driving while intoxicated).

3   {5}   For the reasons set forth above, we affirm the district court judgment.

4   {6}   IT IS SO ORDERED.




5                                         ____________________________________
6                                         J. MILES HANISEE, Judge


7 WE CONCUR:




8 ___________________________
9 JONATHAN B. SUTIN, Judge



10 ___________________________
11 M. MONICA ZAMORA, Judge




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