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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 vs.                                                                         No. 31,794

 5 LEROY GUTIERREZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Charles W. Brown, District Judge

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

11 for Appellee

12   Jacqueline L. Cooper, Chief Public Defender
13   Santa Fe, NM
14   Sergio J. Viscoli, Assistant Appellate Defender
15   Albuquerque, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 GARCIA, Judge.
 1        Defendant appeals from the district court’s affirmance of his conviction for

 2 aggravated DWI (first offense). [RP 87, 94] Our notice proposed to affirm and

 3 Defendant filed a memorandum in opposition.             We remain unpersuaded by

 4 Defendant’s arguments and therefore affirm.

 5        Defendant was convicted of DWI pursuant to the portions of the statute which

 6 prohibit both driving while impaired to the slightest degree and refusing to submit to

 7 chemical testing.    See NMSA 1978, §§ 66-8-102(A) (2010); 66-8-102(D)(3).

 8 Defendant continues to challenge the district court’s ruling that the evidence was

 9 sufficient to support a conclusion that he drove while impaired [MIO 17, 19] and that

10 he failed to cure his initial refusal to take a breath alcohol test (BAT). [MIO 12, 17]

11        First, we address Defendant’s continued challenge to the finding that he drove

12 while impaired. [MIO 19] As set forth in our notice, Defendant’s vehicle twice

13 crossed from his lane into an adjacent bicycle lane [RP 92]; Defendant showed signs

14 of intoxication— bloodshot and watery eyes, odor of alcohol, and slurred speech [RP

15 92]; and Defendant failed to successfully perform field sobriety tests. [RP 92]

16 Defendant additionally admitted that he had drunk two beers prior to driving. [RP 92]

17 We hold that the fact finder could reasonably rely on the foregoing behavioral

18 evidence to convict Defendant for DWI. See State v. Sparks, 102 N.M. 317, 320, 694

19 P.2d 1382, 1385 (Ct. App. 1985) (defining substantial evidence as that evidence which


                                              2
 1 a reasonable person would consider adequate to support a defendant’s conviction); see

 2 also State v. Gutierrez, 1996-NMCA-001, ¶ 4, 121 N.M. 191, 909 P.2d 751

 3 (upholding a DWI conviction based on behavior evidence when the defendant smelled

 4 of alcohol, had bloodshot and watery eyes, failed field sobriety tests, admitted to

 5 drinking alcohol, and the defendant’s vehicle was weaving into other traffic lanes);

 6 State v. Dutchover, 85 N.M. 72, 74, 509 P.2d 264, 266 (Ct. App. 1973) (observing that

 7 DWI may be established through evidence that the defendant’s ability to drive was

 8 impaired to the slightest degree).

 9        We acknowledge Defendant’s continued arguments that countervailing

10 considerations undermine the sufficiency of the State’s evidence that he was driving

11 while impaired. In this regard, Defendant points out that his vehicle only entered the

12 bike lane by one or two feet [MIO 2], that there were no bikes in the bike lane [MIO

13 1], and that he turned and drove appropriately in response to the officer’s lights. [MIO

14 2, 19] Defendant also maintains that his girlfriend was trained to detect signs of

15 inebriation and believed Defendant could drive safely [MIO 3], that his eyes were red

16 because he worked in construction [MIO 3], and that he was not affected by the

17 alcohol he drank earlier. [MIO 6] Lastly, Defendant emphasizes that Officer

18 Martinez indicated in her report that his speech was “fair” [MIO 8], and that Officer

19 Martinez—when testifying about Defendant’s field sobriety tests—stated that “for the


                                              3
 1 most part he did what he was told to do.” [MIO 8-9, 19] However, Defendant’s

 2 arguments amount to an invitation to re-weigh the evidence, which we cannot do. See

 3 generally State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (observing

 4 that the evidence must be viewed “in the light most favorable to the [s]tate,” and that

 5 the reviewing court “does not weigh the evidence and may not substitute its judgment

 6 for that of the fact finder”); see also State v. Foxen, 2001-NMCA-061, ¶ 17, 130

 7 N.M. 670, 29 P.3d 1071 (observing that the fact finder is “not obligated to believe

 8 Defendant’s testimony, to disbelieve or discount conflicting testimony, or to adopt

 9 Defendant’s view”).

10        We also disagree with Defendant’s argument that field sobriety tests are not

11 probative of impairment, because the tests were designed to correlate with specific

12 blood alcohol concentrations. [MIO 20] Evidence of Defendant’s unsatisfactory

13 performance on the field sobriety tests was presented to illustrate his apparent inability

14 to follow directions, maintain balance, and perform other simple tasks. These are

15 commonly-understood features of intoxication that are probative of impairment. See,

16 e.g., State v. Neal, 2008-NMCA-008, ¶ 29, 143 N.M. 341, 176 P.3d 330 (observing

17 that the subject’s unsatisfactory performance on field sobriety testing, including his

18 failure to follow instructions and lack of balance, constituted signs of intoxication

19 which supported his conviction for driving under the influence of intoxicating liquor);


                                               4
 1 State v. Torres, 1999-NMSC-010, ¶ 31, 127 N.M. 20, 976 P.2d 20 (recognizing that

 2 most field sobriety tests are self-explanatory and address commonly understood signs

 3 of intoxication). And other evidence—Defendant’s crossing into the adjacent bike

 4 lane [RP 92], the physical signs of his intoxication [RP 92], the odor of alcohol [RP

 5 92], and his admission to drinking alcohol [RP 92]— provided the fact finder with

 6 additional evidence upon which to convict him for DWI. See generally State v.

 7 Baldwin, 2001-NMCA-063, ¶ 16, 130 N.M. 705, 30 P.3d 394 (stating that fact finders

 8 may draw on their life experiences and understanding of human behavior during a

 9 state of intoxication to draw reasonable inferences).

10        We next consider Defendant’s continued argument that he should not have been

11 convicted for aggravated DWI because he revoked his initial refusal to take a BAT.

12 [MIO 12] For the reasons detailed in our notice, we affirm the district court’s ruling

13 that Defendant failed to cure his initial refusal to take a BAT. [RP 90] We do so after

14 carefully considering the five-factor test adopted when a motorist will be permitted

15 to revoke a refusal to submit to testing. In re Suazo, 117 N.M. 785, 793, 877 P.2d

16 1088, 1096 (1994). In particular, we consider the requirement in Suazo that the time

17 for curing a refusal be within “a very short time, never more than a matter of minutes.”

18 Id. Here, the district court noted that Officer Martinez spent approximately ten to

19 fifteen minutes doing paperwork after Defendant’s third refusal [RP 90-91], and that


                                              5
 1 after this time Defendant changed his mind and told her he wanted to take a BAT.

 2 [RP 91] We agree with the district court that Defendant failed to cure his refusal

 3 within a reasonable period of time. [RP 92] Lastly, to the extent Defendant suggests

 4 that he delayed curing his refusal because he did not understand the consequences of

 5 his refusal [MIO 14-15], we conclude that it was for the district court to consider this

 6 argument and to determine its weight. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126

 7 N.M. 438, 971 P.2d 829. To this end, the district court noted that Defendant “never

 8 claimed he failed to understand [the officer’s] advising him about the consequences

 9 of refusal.” [RP 91]

10        For reasons set forth herein and in the notice, we affirm.

11        IT IS SO ORDERED.

12
13                                           TIMOTHY L. GARCIA, Judge

14 WE CONCUR:



15
16 JAMES J. WECHSLER, Judge



17
18 MICHAEL E. VIGIL, Judge



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