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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-36306

 5 IRITA GONZALES,

 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 Patrick J. Martinez
13 Albuquerque, NM

14 for Appellant

15                                 MEMORANDUM OPINION

16 VANZI, Chief Judge.

17   {1}    Defendant Irita Gonzales appeals from the district court’s on-record review and

18 affirmance of the metropolitan court’s denial of Defendant’s motion to suppress
 1 Officer Miller’s testimony and her conviction for driving while under the influence

 2 of intoxicating liquor or drugs (DWI), following a bench trial in metropolitan court.

 3 This Court issued a calendar notice proposing to adopt the district court’s

 4 memorandum opinion with one point of clarification. Specifically, we noted that the

 5 district court had relied on State v. Harper, 2011-NMSC-044, ¶ 15, 150 N.M. 745,

 6 266 P.3d 25, in affirming the trial court’s decision, and that the New Mexico Supreme

 7 Court had subsequently clarified Harper’s holding in State v. Le Mier, 2017-NMSC-

 8 017, ¶¶ 15-22, 394 P.3d 959. We proposed, however, that since Le Mier still required

 9 a consideration of the factors identified in Harper, affirmance was still proper.

10   {2}   Defendant has filed a memorandum in opposition to this Court’s notice of

11 proposed disposition. In her memorandum in opposition, Defendant argues that Le

12 Mier requires reversal of the trial court’s denial of her motion to suppress, by

13 analogizing to factual similarities between her case and Le Mier. However, what

14 Defendant fails to recognize is one important distinction—specifically, that the trial

15 court in Le Mier granted the defendant’s request for sanctions, while the trial court in

16 this case has denied Defendant’s request. Thus, because Le Mier informs this Court

17 that, as an appellate court, we are to give deference to the discovery sanctions a trial

18 court imposes, and because Defendant has not demonstrated that the trial court abused

19 its discretion, summary affirmance of the trial court’s suppression ruling is proper.



                                              2
 1   {3}   To the extent Defendant continues to challenge the sufficiency of the evidence

 2 supporting her conviction for driving under the influence, we are equally unpersuaded.

 3 Defendant contends that, “when only considering Officer Miller’s testimony of an

 4 odor or alcohol, no admission of drinking, and her performance on [field sobriety tests

 5 (FSTs)], there was no evidence of impaired driving presented by the State.” [MIO 9]

 6 Defendant further argues that “[n]othing in Officer Miller’s testimony, nor the

 7 tangible evidence presented at trial, demonstrates that Defendant . . . was less able to

 8 operate a motor vehicle mentally, physically, or both. In the State’s most favorable

 9 evidence, Defendant . . . approached a roadblock, was investigated for DWI, smelled

10 like alcohol, performed poorly on FSTs . . . , was compliant, and was placed under

11 arrest for . . . DWI.” [Id.]

12   {4}   We note, however, that “[a]n officer does not have to observe a suspect actually

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

14 circumstances has reasonable grounds to believe that [the d]efendant had been driving

15 while intoxicated.” State v. Sanchez, 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d

16 446 (internal quotation marks and citation omitted). Moreover, we have previously

17 held that “the smell of alcohol emanating from [the d]efendant, [the d]efendant’s lack

18 of balance at the vehicle, and the manner of [the d]efendant’s performance on the

19 FSTs constituted sufficient circumstances to give the officer the requisite objectively

20 reasonable belief that [the d]efendant had been driving while intoxicated.” State v.

                                               3
 1 Granillo-Macias, 2008-NMCA-021, ¶ 12, 143 N.M. 455, 176 P.3d 1187. Here, the

 2 trial court found that Defendant “moved her head—contrary to instructions—during

 3 the [horizontal gaze nystagmus], turned incorrectly on the walk-and-turn, put her foot

 4 down during the one-leg-stand, and her performance on the countdown test was ‘really

 5 bad.’ ” [RP 138] In addition, the trial court found that Defendant smelled of alcohol

 6 and had been drinking, despite her denial, and the officer testified that Defendant’s

 7 eyes were bloodshot and watery. [Id.] Thus, viewing this evidence in the light most

 8 favorable to the trial court’s ruling, we conclude there was sufficient evidence to

 9 support Defendant’s conviction.

10   {5}   Accordingly, for the reasons discussed above, in this Court’s notice of proposed

11 disposition, and in the district court’s memorandum opinion, we affirm.

12   {6}   IT IS SO ORDERED.


13                                          __________________________________
14                                          LINDA M. VANZI, Chief Judge

15 WE CONCUR:



16 _________________________________
17 MICHAEL E. VIGIL, Judge



18 _________________________________
19 EMIL J. KIEHNE, Judge

                                               4
