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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. 35,392

 5 MAXWELL GRIEGO,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Cristina T. Jaramillo, District Judge


 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Steven J. Forsberg, Assistant Public Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 WECHSLER, Judge.
 1   {1}   Defendant appeals from a conviction for DWI. We issued a notice of proposed

 2 summary disposition, proposing to uphold the conviction. Defendant has filed a

 3 memorandum in opposition. After due consideration, we remain unpersuaded. We

 4 therefore affirm.

 5   {2}   In the docketing statement, Defendant raised three issues, all of which are

 6 renewed. [DS 14-15; MIO 1-2] Because the pertinent background information was

 7 previously set forth, we will avoid undue reiteration here, focusing instead on the

 8 content of the memorandum in opposition.

 9   {3}   With respect to the first and second issues, Defendant concedes that the

10 decision in State v. Montoya, ___ - NMCA - ___, ___ P.3d ___ (No. 34,298, June 29,

11 2016), is controlling. Defendant encourages the Court to reconsider that decision.

12 [MIO 1] We decline.

13   {4}   With respect to the third and final issue, Defendant continues to argue that the

14 trial court refused to consider countervailing evidence. [MIO 1-2] However, the trial

15 court’s comments, as a whole, reflect that the trial court duly considered the evidence

16 presented, including the testimony of the witness who discussed uncertainty. [RP 60-

17 62, 64] And ultimately, the trial court’s reliance upon the BAT results was

18 permissible. See id. ¶ 34 (similarly concluding that “SLD-approved chemical test



                                               2
1 results of 0.08 or higher are sufficient” to support convictions for per se DWI, and

2 upholding a conviction where the defendant’s breath test results were .08/.08).

3   {5}   Accordingly, for the reasons stated, we affirm.

4   {6}   IT IS SO ORDERED.


5                                                ________________________________
6                                                JAMES J. WECHSLER, Judge


7 WE CONCUR:


8 ________________________________
9 JONATHAN B. SUTIN, Judge


10 ________________________________
11 LINDA M. VANZI, Judge




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