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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. A-1-CA-35879

 5 PAULA APODACA,

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

15 for Appellant

16                                 MEMORANDUM OPINION

17 SUTIN, Judge.

18   {1}    Defendant Paula Apodaca appeals her conviction in metropolitan court for

19 driving while intoxicated, arguing that the location and operation of a sobriety
 1 checkpoint violated City of Las Cruces v. Betancourt, 1987-NMCA-039, 105 N.M.

 2 655, 735 P.2d 1161, that the checkpoint was unreasonable because of a lack of

 3 advance publicity, that the evidence at trial was insufficient to support her conviction,

 4 and that her arrest was not supported by probable cause. [DS 16-19] Following her

 5 conviction, Defendant pursued an appeal in the district court in which she asserted

 6 precisely the same arguments that she advances before this Court. [RP 114] This

 7 Court’s calendar notice observed that no new arguments are being asserted in this

 8 appeal and that the district court’s memorandum opinion affirming Defendant’s

 9 conviction “addresse[d] all the arguments raised by Defendant in this appeal” and “is

10 thorough, extensive, and well-reasoned.” [CN 2] As a result, we proposed to adopt

11 that memorandum opinion in its entirety. [Id.] Our calendar notice also directed

12 Defendant to “specifically direct” this Court’s attention to any portion of the district

13 court’s opinion that she claims to contain error, whether factual or legal. [CN 2-3]

14   {2}   Defendant has filed a memorandum in opposition to this Court’s proposed

15 disposition in which she continues to assert the four arguments outlined in her

16 docketing statement. [MIO 2, 7, 8, 10] Having reviewed that memorandum and seeing

17 nothing that was not sufficiently addressed by the district court, we remain

18 unpersuaded and now affirm.




                                               2
 1   {3}   Because this Court has proposed to adopt the district court’s factual recitation,

 2 legal reasoning, and result, Defendant’s burden in connection with her memorandum

 3 in opposition is to “clearly point out errors in fact or law” contained in the district

 4 court’s memorandum opinion. Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M.

 5 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases,

 6 the burden is on the party opposing the proposed disposition to clearly point out errors

 7 in fact or law.”). As Defendant’s memorandum does not challenge the facts described

 8 in the district court opinion, we turn to Defendant’s legal arguments.

 9   {4}   With regard to potential legal error in this Court’s proposed disposition,

10 Defendant’s first argument asserts that a sobriety checkpoint was not reasonably

11 located or supervised. [MIO 2-6] As the district court noted, these requirements are

12 intended “to reduce the possibility of improper, unbridled discretion of the officers

13 who meet and deal with the motoring public.” [RP 173 (quoting Betancourt, 1987-

14 NMCA-039, ¶ 14)] The district court also noted that the police sergeant who selected

15 the site testified regarding his consideration of “the safety aspects of the site, as well

16 as its satisfaction of law-enforcement goals.” [Id.] And, with specific reference to

17 supervision of the checkpoint and the risk of “unbridled discretion” in the field, the

18 district court also noted that there was no evidence that the sergeant “interacted with

19 the motoring public in any way.” [RP 174] Nothing in Defendant’s memorandum


                                               3
 1 persuades us that the sergeant’s selection of a site and supervision of the checkpoint

 2 rendered     the   checkpoint—or       Defendant’s      being    stopped    in   that

 3 checkpoint—constitutionally unreasonable.

 4   {5}   Defendant’s second issue involves Betancourt’s requirement of advance

 5 publicity. [MIO 7-8] As Defendant acknowledges, the degree of publicity is one of

 6 eight factors described in Betancourt. [MIO 7] All of those factors address concerns

 7 surrounding “individual liberty, security, and privacy[.]” Betancourt, 1987-NMCA-

 8 039, ¶ 10. Although a “media release” was emailed “to print, television and radio

 9 media” prior to the checkpoint [DS 2], the State did not prove “that the media was

10 actually notified and that, [Defendant] maintains, should have established that the

11 roadblock was not in concurrence with the requirements for a constitutionally

12 reasonable roadblock.” [MIO 7-8] We concur with the district court, however, that the

13 facts surrounding publicity of the checkpoint “did not make the checkpoint

14 unreasonably invasive or intrusive” and that Defendant’s “specific concern about the

15 media does not tip the balance against the checkpoint.” [RP 175]

16   {6}   As her third and fourth issues, Defendant challenges the sufficiency of the

17 evidence to support both a finding of probable cause and, ultimately, her conviction.

18 [MIO 8-11] Specifically, Defendant draws our attention to evidence of various

19 circumstances that might explain her difficulty parking her car and her poor


                                             4
 1 performance on standard field sobriety tests. [MIO 9-11] Those circumstances include

 2 that she is partially blind in one eye; she was unfamiliar with the car, which had a

 3 standard transmission; she had to avoid stepping on rocks because a police officer had

 4 her remove her shoes; she was nervous; and she was unfamiliar with “what the officer

 5 was requesting.” [MIO 9-11]

 6   {7}   The opinion of the district court addressed this argument by construing it as an

 7 invitation to reweigh the evidence presented to the trial court. [RP 177] Deciding what

 8 weight to give the evidence presented at trial, however, is the province of the trier of

 9 fact, and appellate courts will not invade that province by second-guessing or

10 reweighing that evidence. See State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185,

11 246 P.3d 1057. Thus, the sole question to be addressed on appeal is whether the trial

12 court’s “decision is supported by substantial evidence, not whether the trial court

13 could have reached a different conclusion.” In re Ernesto M., Jr., 1996-NMCA-039,

14 ¶ 15, 121 N.M. 562, 915 P.2d 318. Ultimately, Defendant asks this Court, as she asked

15 the district court, to determine that the evidence supporting the officer’s belief she was

16 under the influence of alcohol, as well as the evidence of guilt offered at trial, was

17 outweighed by alternative evidence that other factors might have led to her behavior

18 and performance. The district court properly rejected this argument, and we do the

19 same.


                                               5
1   {8}   Accordingly, for the reasons set forth in our notice of proposed summary

2 disposition and in the district court’s memorandum opinion, Defendant’s conviction

3 is affirmed.

4   {9}   IT IS SO ORDERED.



5                                       ___________________________________
6                                       JONATHAN B. SUTIN, Judge

7 WE CONCUR:


8 _______________________________
9 J. MILES HANISEE, Judge


10 _______________________________
11 HENRY M. BOHNHOFF, Judge




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