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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. 36,042

 5 LONNIE SKILES,

 6                  Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILO COUNTY
 8 Brett R. Loveless, District Judge

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

11 for Appellee

12 The Law Offices of Ramsey & Hoon, LLC
13 Twila A. Hoon
14 Albuquerque, NM

15 for Appellant

16                                  MEMORANDUM OPINION

17 HANISEE, Judge.

18   {1}    Defendant appeals from the district court’s judgment in an on-record appeal,

19 affirming the sentencing order of the metropolitan court that convicted Defendant for
 1 first offense DWI. We issued a notice of proposed summary affirmance of

 2 Defendant’s conviction for first offense DWI. Our notice also proposed summary

 3 remand for correction of the district court’s judgment, because the district court’s

 4 judgment indicated that the metropolitan court “found him guilty of aggravated DWI.”

 5 [RP 114] Defendant has responded to our notice with a memorandum in opposition

 6 that concurs with our proposal to remand for correction of the district court’s

 7 judgment and requests that we reconsider our proposed affirmance of his conviction

 8 for first offense DWI. The State has not filed a response. Having considered

 9 Defendant’s memorandum in opposition, we remand to the district court for correction

10 of the judgment and affirm Defendant’s conviction for first offense DWI.

11   {2}   On appeal, Defendant argues that the State failed to present sufficient evidence

12 of a nexus proving that Defendant was intoxicated when he was driving. [MIO 2-4]

13 Because this is the same argument Defendant raises to challenge probable cause, we

14 address them together. [MIO 5-6] Defendant pursues both issues under the demands

15 of State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982; and State v.

16 Boyer, 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1. [DS 11-12; MIO 2, 5] We

17 avoid the unnecessary duplication of our analysis in the notice and respond only to

18 those arguments raised in the memorandum in opposition.

19   {3}   Defendant argues that State v. Cotton, 2011-NMCA-096, 150 N.M. 583, 263



                                               2
 1 P.3d 925, should control our decision and warrants reversal, because there was a gap

 2 between the time there was a witness to Defendant’s driving and when Defendant was

 3 found intoxicated. [MIO 2-4] We disagree that Cotton controls. There was no

 4 evidence presented in Cotton to establish when the defendant was driving, no evidence

 5 that the defendant’s driving and drinking overlapped, and no evidence that Defendant

 6 had an intent to drive when he was intoxicated. See id. ¶¶ 4-5, 14. In contrast, here

 7 there was a witness to Defendant’s driving; there was evidence that Defendant crashed

 8 into a parked vehicle and left the scene; and within ten to fifteen minutes later a

 9 witness to Defendant’s driving arrived at Defendant’s location, where Defendant’s

10 vehicle was parked and blocked in by a maintenance worker’s truck to prevent

11 Defendant from leaving; that witness, who rushed to Defendant’s location within ten

12 to fifteen minutes after the accident, noticed that Defendant was slurring his speech,

13 smelled strongly of alcohol, had an empty bottle of vodka on the passenger-side floor,

14 and could barely stand. [RP 106, 108-09, 112] In addition, Defendant refused field

15 sobriety tests three times and his breath test results were .27 and .29, far beyond the

16 legal limit. [RP 110, 112] We agree with the district court that given the short time

17 frame between Defendant’s witnessed driving and the witness arriving at Defendant’s

18 vehicle, the evidence was sufficient to prove that Defendant was intoxicated while

19 driving. See State v. Sims, 2010-NMSC-027, ¶ 3, 148 N.M. 330, 236 P.3d 642



                                              3
 1 (holding that where there is a witness to Defendant’s driving at or near the time of

 2 apprehension, the State does not need to rely on “actual physical control” to prove that

 3 Defendant was DWI).

 4   {4}   The maintenance worker who blocked in Defendant’s vehicle called the police,

 5 and the witness to Defendant’s driving took Defendant’s driver’s license and keys and

 6 waited until the police arrived. From this we can conclude that the officer was told all

 7 of the information that could lead to a reasonable belief that Defendant was

 8 intoxicated while driving before the officer conducted his own investigation and

 9 arrested Defendant. [RP 106, 108-09] See State v. Granillo-Macias, 2008-NMCA-

10 021, ¶ 9, 143 N.M. 455, 176 P.3d 1187 (stating that “[a]n officer has probable cause

11 to arrest when the facts and circumstances within the officer’s knowledge are

12 sufficient to warrant the officer to believe that an offense has been or is being

13 committed” and clarifying that an officer does not need “to observe a suspect actually

14 driving in an impaired manner if the officer, based upon all the facts and

15 circumstances, has reasonable grounds to believe that [the driver] had been driving

16 while intoxicated” (alteration in original, internal quotation marks and citation

17 omitted)). We hold the officer had probable cause to arrest Defendant. Id. ¶ 12

18 (holding that “the smell of alcohol emanating from [the d]efendant, [the d]efendant’s

19 lack of balance at the vehicle, and the manner of [the d]efendant’s performance of the



                                              4
 1 FSTs constituted sufficient circumstances to give the officer the requisite objectively

 2 reasonable belief that [the d]efendant had been driving while intoxicated and to

 3 proceed with BAC tests, and thus constituted probable cause to arrest [the

 4 d]efendant”).

 5   {5}   For these reasons, we affirm Defendant’s conviction for first offense DWI and

 6 remand to the district court for correction of the judgment indicating that the

 7 metropolitan court convicted Defendant for aggravated DWI.

 8   {6}   IT IS SO ORDERED.



 9
10                                         J. MILES HANISEE, Judge

11 WE CONCUR:
12

13
14 JONATHAN B. SUTIN, Judge


15
16 STEPHEN G. FRENCH, Judge




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