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


 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                 NO. 29,072

 5 CHRISTOPHER MONTAÑO,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Charles W. Brown, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Linda Yen, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                             MEMORANDUM OPINION

17 CASTILLO, Judge.

18       Defendant appeals his convictions for Driving While Intoxicated (DWI) and

19 careless driving. We proposed to affirm in a calendar notice, and Defendant has
 1 responded with a memorandum in opposition.             Unpersuaded by Defendant’s

 2 arguments, we affirm.

 3        In the metropolitan court, Defendant was found guilty of DWI under both

 4 NMSA 1978, Section 66-8-102(A) (2008), which refers to a driver being “under the

 5 influence of intoxicating liquor,” and Section 66-8-102(C)(1), which refers to a driver

 6 undergoing a blood or breath alcohol test that shows an alcohol concentration of eight

 7 one hundredths or more, also referred to as “per se” DWI. In our calendar notice, we

 8 set out all of the evidence supporting the metropolitan court’s determination that

 9 Defendant was guilty of DWI under Section 66-8-102(A). Because there was

10 sufficient evidence presented to support the DWI conviction under Section 66-8-

11 102(A), we declined to address the sufficiency of the evidence to support the DWI

12 conviction under Section 66-8-102(C).

13        In his memorandum in opposition, Defendant continues to claim that the

14 evidence was insufficient to support his DWI convictions under Section 66-8-102(A)

15 or his careless driving conviction under NMSA 1978, Section 66-8-114(B) (1978),

16 and that the breath alcohol test card (BAT) was inadmissible because there was

17 insufficient evidence to show that the machine was properly certified on the date the

18 BAT was generated. [MIO 11, 18]

19 Sufficiency of Evidence for Careless Driving Conviction and DWI Conviction
20 Under Section 66-8-102(A)

                                              2
 1        As discussed in our calendar notice, there was evidence that Defendant swerved

 2 into the officer’s lane; the officer had to slam on his brakes to avoid a collision; the

 3 officer smelled a strong odor of alcohol when he approached Defendant’s vehicle;

 4 Defendant had bloodshot, watery eyes and slurred speech; Defendant failed the field

 5 sobriety tests, and Defendant admitted to having two drinks. Although Defendant

 6 provides his own explanation for the manner in which he was driving, we view the

 7 evidence in the light most favorable to the verdict, and we resolve all conflicts in the

 8 evidence in favor of the verdict. See State v. Cunningham, 2000-NMSC-009, ¶ 26,

 9 128 N.M. 711, 998 P.2d 176. We hold that the evidence was sufficient to support

10 Defendant’s convictions for careless driving and for DWI under Section 66-8-102(A).

11 Admission of BAT Card

12        Defendant claims that the metropolitan court erred in admitting the BAT card

13 into evidence. Defendant points to testimony that the machine had been sent to the

14 State Laboratory Division (SLD) “some months before” Defendant was given the test,

15 and was sent again to the SLD “within days” after Defendant was tested. [MIO 12]

16 Based on that testimony, Defendant claims that the accuracy of the test is placed in

17 doubt, and the BAT card should not have been admitted into evidence. [MIO 13]

18        In our calendar notice, we pointed out that Defendant was convicted following

19 a bench trial and, therefore, even if the BAT card should not have been admitted, it is


                                              3
 1 presumed that the trial court disregarded any improper evidence. We also noted that

 2 even if evidence was erroneously admitted, there is no reversible error unless it

 3 appears the trial court must have relied on the evidence in making its decision.

 4 See State v. Gutierrez, 1996-NMCA-001, ¶ 4, 121 N.M. 191, 909 P.2d 751.

 5        In response, Defendant contends that “the record reflects that the trial court

 6 relied specifically upon the breath test result in finding [Defendant] guilty,” and

 7 therefore, the admission of the BAT card cannot be considered harmless. [MIO 15]

 8 Defendant cites to his docketing statement in support of his allegation that the

 9 metropolitan court specifically relied on the BAT card in determining that he was

10 guilty of DWI. However, the docketing statement indicates only that the metropolitan

11 judge commented that, based on the officer’s testimony, “when the machine was not

12 functioning properly, it had been testing low,” and “such a malfunction would give

13 [Defendant] the benefit of the doubt, so that ‘it’s possible that [Defendant] was even

14 higher than the .09.’” [DS 9] Following that comment, the metropolitan judge found,

15 “beyond a reasonable doubt [] the machine was running properly and accurately on

16 the day that the test was administered.” [MIO 15] In other words, the metropolitan

17 judge rejected Defendant’s argument that the machine had malfunctioned and as a

18 result found Defendant guilty of “per se” DWI. Nothing in her comment about the

19 machine “testing low” indicates she also relied on the BAT card to support her finding


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 1 of guilt as to the alternate charge under Section 66-8-102(A). As discussed above,

 2 there was ample other evidence to support Defendant’s conviction under that section

 3 without considering the BAT card evidence at all. Therefore, we reject Defendant’s

 4 argument that the metropolitan court “must have relied” on the BAT card for

 5 Defendant’s DWI conviction under Section 66-8-102(A). As a result, even if the BAT

 6 card was erroneously admitted, such error was harmless. See Gutierrez, 1996-NMCA-

 7 001, ¶ 4.

 8       Because we hold that there was sufficient evidence to support Defendant’s DWI

 9 conviction based on impairment to the slightest degree under Section 66-8-102(A),

10 we need not address the sufficiency of the evidence to support a DWI conviction

11 under Section 66-8-102(C)(1). For the reasons discussed in this opinion and in our

12 calendar notice, we affirm Defendant’s convictions.

13       IT IS SO ORDERED.



14                                              ________________________________
15                                              CELIA FOY CASTILLO, Judge




16 WE CONCUR:


                                            5
1 _________________________________
2 MICHAEL D. BUSTAMANTE, Judge



3 _________________________________
4 RODERICK T. KENNEDY, Judge




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