 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.

 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 CITY OF RIO RANCHO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 29,383

10 RUBEN DURAN,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
13 John F. Davis, District Judge

14 Gina R. Manfredi, Assistant City Attorney
15 Rio Rancho, NM

16 for Appellee

17 Scott M. Davidson
18 Albuquerque, NM

19 for Appellant

20                                 MEMORANDUM OPINION

21 VIGIL, Judge.

22          Defendant Ruben Duran appeals his conviction after a de novo bench trial

23 for driving while under the influence of intoxicating liquor (DWI) in violation of
 1 Rio Rancho Revised Ordinance 12-6-12.1. [RP 77] Defendant raises two issues:

 2 (1) sufficiency of the evidence; and (2) whether admission of evidence of

 3 Defendant’s refusal to submit to a breath test violated Article II, Section 15 of the

 4 New Mexico Constitution. This Court issued a calendar notice proposing to

 5 affirm. Defendant filed a memorandum in opposition, which we have given due

 6 consideration. We affirm Defendant’s conviction.

 7 SUFFICIENCY OF THE EVIDENCE

 8        Defendant first argues that there was not sufficient evidence to support a

 9 conviction. This is a question of law which we review de novo. State v.

10 Neatherlin, 2007-NMCA-035, ¶ 8, 141 N.M. 328, 154 P.3d 703. “In reviewing the

11 sufficiency of evidence used to support a conviction, we resolve all disputed facts

12 in favor of the State, indulge all reasonable inferences in support of the verdict, and

13 disregard all evidence and inferences to the contrary.” State v. Rojo,

14 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We determine as a matter of

15 law “whether the evidence viewed in this manner could justify a finding by any

16 rational trier of fact that each element of the crime charged has been established

17 beyond a reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756,

18 760 (1994) (alteration in original) (internal quotation marks and citation omitted).



                                              2
 1 We do not reweigh the evidence or substitute our judgment for that of the

 2 factfinder. Neatherlin, 2007-NMCA-035, ¶ 8.

 3        Defendant was charged under City of Rio Rancho Ordinance Section 12-6-

 4 12.1, which provides in relevant part: “It is unlawful for any person who is under

 5 the influence of intoxicating liquor to drive any vehicle within this municipality.”

 6 [DS 9] The corresponding New Mexico statute, NMSA 1978, Section 66-8-

 7 102(A) (2008), has been interpreted as follows: “A person is under the influence of

 8 intoxicating liquor if as a result of drinking liquor [the driver] was less able to the

 9 slightest degree, either mentally or physically, or both, to exercise the clear

10 judgment and steady hand necessary to handle a vehicle with safety to [the driver]

11 and the public.” State v. Sanchez, 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d

12 446 (internal quotation marks and citation omitted).

13        According to Defendant’s docketing statement, Defendant was observed

14 making a u-turn across a concrete divider as he approached a DWI checkpoint in

15 Rio Rancho. [DS 2-3] After stopping Defendant, the arresting officer noticed a

16 strong odor of alcohol and that Defendant had bloodshot, watery eyes. [DS 3]

17 Another officer administered field sobriety tests and concluded that Defendant did

18 not pass them. [Id.] We conclude that the traffic violation, particularly one of this

19 nature, in combination with the evidence that Defendant had been drinking and

                                               3
 1 performed unsatisfactorily on the field sobriety tests, was sufficient to prove

 2 beyond a reasonable doubt that he was “less able to the slightest degree” to handle

 3 his vehicle safely. We conclude that Defendant’s conviction was supported by

 4 sufficient evidence.

 5 ADMISSIBILITY OF BREATH TEST REFUSAL

 6        Defendant argues that admission of evidence of his refusal to submit to a

 7 breath test violated Article II, Section 15 of the New Mexico Constitution. He

 8 correctly acknowledges that admitting evidence of refusal to submit to a breath test

 9 has been held not to violate the Fifth Amendment’s right to be free from self-

10 incrimination. McKay v. Davis, 99 N.M. 29, 32, 653 P.2d 860, 863 (1982); see

11 also State v. Wright, 116 N.M. 832, 836, 867 P.2d 1214, 1218 (Ct. App. 1993)

12 (holding refusal to take field sobriety tests admissible).

13        Rule 12-208(D)(4) NMRA requires that a docketing statement include “a

14 statement of the issues presented by the appeal, including a statement of how they

15 arose and how they were preserved in the trial court.” (emphasis added). Rule

16 12-216(A) NMRA provides: “To preserve a question for review it must appear that

17 a ruling or decision by the district court was fairly invoked.” “[I]t is a fundamental

18 rule of appellate practice and procedure that an appellate court will consider only

19 such questions as were raised in the lower court.” State v. Gomez,

                                              4
 1 1997-NMSC-006, ¶ 14, 122 N.M. 777, 932 P.2d 1 (internal quotation marks and

 2 citation omitted).

 3        Regarding preservation of Defendant’s issue arguing that Article II, Section

 4 15 of New Mexico Constitution provides more protection than its counterpart in

 5 the Fifth Amendment to the United States Constitution, we note the following

 6 language in Gomez, where our Supreme Court adopted the interstitial approach to

 7 analysis of claims that the New Mexico Constitution provides broader protection

 8 than the federal constitution:

 9        [W]hen a party asserts a state constitutional right that has not been
10        interpreted differently than its federal analog, a party also must assert
11        in the trial court that the state constitutional provision at issue should
12        be interpreted more expansively than the federal counterpart and
13        provide reasons for interpreting the state provision differently from
14        the federal provision. This will enable the trial court to tailor
15        proceedings and to effectuate an appropriate ruling on the issue.

16 Gomez, 1997-NMSC-006, ¶ 23 (emphasis in original).

17        Defendant points out in his memorandum in opposition to proposed

18 summary affirmance that Rule 12-216 also provides “This rule shall not preclude

19 the appellate court from considering jurisdictional questions or, in its discretion,

20 questions involving: (1) general public interest; or (2) fundamental error or

21 fundamental rights of a party.” Rule 12-216(B).



                                               5
 1        Defendant does not dispute that the self-incrimination issue was not

 2 preserved in district court. [MIO 1] He argues that because a fundamental right is

 3 involved, this Court should exercise its discretion to review the issue. [MIO 3-4]

 4 In declining to do so, we observe, among other things, New Mexico’s longstanding

 5 acceptance under Fifth Amendment jurisprudence that admissibility of refusal does

 6 not violate the right against compelled self-incrimination. McKay. We also note

 7 the statutory acceptance of refusal of blood alcohol testing as an element of the

 8 offense of aggravated driving while under the influence of intoxicating liquor.

 9 Section 66-8-102(D)(3). Finally, although Defendant’s docketing statement

10 identified several areas in which New Mexico has provided more protection under

11 its constitution than would be available under the federal constitution, his

12 memorandum in opposition does not give any indication of the reasons he believes

13 the admissibility of refusal of blood alcohol testing should be treated differently

14 under Article II, Section 15 than under the Fifth Amendment.

15        For the reasons stated above, we affirm the district court.

16        IT IS SO ORDERED.

17
18
19                                         MICHAEL E. VIGIL, Judge



                                              6
1 WE CONCUR:


2
3 JONATHAN B. SUTIN, Judge


4
5 LINDA M. VANZI, Judge




                             7
