     This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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     filing date.

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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 vs.                                                                         NO. 31,578

 5 CARLTON JAMON,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
 8 Robert A. Aragon, District Judge

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

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender
13 Tania Shahani, Assistant Appellate Defender
14 Santa Fe, NM


15                                 MEMORANDUM OPINION

16 GARCIA, Judge.
 1        Defendant appeals from the district court’s order remanding the case to

 2 magistrate court for modification of judgment and sentence. [RP 120] Defendant

 3 contends that the district court erred in concluding that, although Defendant was not

 4 found guilty of violating NMSA 1978, Section 66-7-317(A) (1978) (driving on

 5 roadways laned for traffic), the fact that Defendant’s vehicle crossed/touched the lane

 6 markers on both sides created reasonable suspicion that Defendant was impaired and

 7 justified the officer stopping Defendant’s vehicle to investigate him for DWI. [DS 4]

 8 The calendar notice proposed summary affirmance. [Ct. App. File, CN1] Defendant

 9 has filed a memorandum in opposition that we have duly considered. [Ct. App. File,

10 MIO] Unpersuaded, however, we affirm.

11 DISCUSSION

12        Section 66-7-317(A) provides that:

13        Whenever any roadway has been divided into two or more clearly
14        marked lanes for traffic the following rules in addition to all others
15        consistent herewith shall apply:
16
17        A.      a vehicle shall be driven as nearly as practicable entirely within a
18        single lane and shall not be moved from such lane until the driver has
19        first ascertained that such movement can be made with safety;

20 This section is not violated by a one-car accident. See, e.g., Archibeque v. Homrich,

21 88 N.M. 527, 532, 543 P.2d 820, 825 (1975). In addition, if the movement can be




                                               2
     State v. Jamon, No. 31,578 (GKFy) Filed June 5, 2012. Correction Page 3, line 8. Replaced “San Juan” with
     “McKinley”

 1 made with safety it is not unlawful. See, e.g., Aragon v. Speelman, 83 N.M. 285, 288,

 2 491 P.2d 173, 176 (Ct. App. 1971).

 3           Defendant was convicted in magistrate court of failure to maintain his lane and

 4 DWI, first offense. [RP 2] Defendant appealed to district court for a de novo trial.

 5 [RP 1] In district court, Defendant moved to suppress the officer’s DWI investigation

 6 on the basis that Defendant had not violated Section 66-7-317(A), and, therefore, the

 7 officer did not have reasonable suspicion to stop Defendant’s vehicle. [RP 84]

 8 Defendant continues to argue that suppression is appropriate because Defendant did

 9 not violate Section 66-7-317(A), the stop was therefore based upon the officer’s

10 mistake of law, and the State never established sufficient reasonable suspicion for the

11 stop. [MIO 3] We are not persuaded.

12           At the suppression hearing, the officer testified that on or about October 15,

13 2010, in McKinley County, New Mexico, he observed Defendant’s vehicle cross over

14 the centerline to the left; Defendant’s vehicle turned back to the right and hit the

15 shoulder line; Defendant’s vehicle then turned back to the left, touched the [center]

16 line, and then turned back to the right and “did the same thing.” [RP 101, 9:14:37

17 AM] When the officer observed Defendant’s vehicle, there were no other vehicles

18 around. [RP 102, 9:29:42 AM] The officer activated his emergency equipment;

19 Defendant turned on his turn signal and pulled into a closed business lot; and the


                                                            3
 1 officer pulled his vehicle behind Defendant’s vehicle and made contact with

 2 Defendant. [RP 71, RP 102] At the hearing, the officer showed a video tape that

 3 confirmed the officer’s testimony about Defendant’s vehicle’s actions. [RP 102-03,

 4 9:20:32 - 9:38:06 AM] After investigating, the officer cited Defendant for failure to

 5 maintain his lane and for DWI. [RP 73-74] Defendant was convicted in magistrate

 6 court of both offenses.

 7        After trial in district court, the judge ruled that he did not believe Section 66-7-

 8 317(A) (failure to maintain lane), was violated because the State had not demonstrated

 9 that a hazard was created by Defendant crossing over the lane markers. [RP 105,

10 9:53:31 - 9:54:44 AM] The district court also ruled, however, that, “by the mere fact

11 that a vehicle in a very short distance would leave its assigned lane of traffic on at

12 least three different occasions would give [the officer] cause to suspect the person

13 would be impaired.” [Id.] Defendant was convicted of DWI, first offense, and the

14 district court vacated Defendant’s magistrate court conviction for failure to maintain

15 his lane. We agree with the district court.

16        The district court was correct in vacating Defendant’s conviction for failing to

17 maintain his lane under the case law construing Section 66-7-317(A), as set forth

18 above. Nevertheless, the fact that Defendant’s vehicle was weaving back and forth

19 created reasonable suspicion that Defendant was in violation of Section 66-7-317(A)


                                               4
 1 and/or NMSA 1978, Section 66-8-102(A) (2010) (stating that “[i]t is unlawful for a

 2 person who is under the influence of intoxicating liquor to drive a vehicle within this

 3 state”). “A police officer has probable cause when facts and circumstances within the

 4 officer’s knowledge, or about which the officer has reasonably trustworthy

 5 information, are sufficient to warrant an officer of reasonable caution to believe that

 6 an offense is being committed or has been committed.” State v. Sanchez,

 7 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d 446 (citing State v. Salas,

 8 1999-NMCA-099, ¶¶ 17-18, 127 N.M. 686, 986 P.2d 482). “A person is under the

 9 influence of intoxicating liquor if as a result of drinking liquor [the driver] was less

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

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

12 the public.” Id. (internal quotation marks and citation omitted).

13        Defendant’s reliance on City of Farmington v. Fordyce, Ct. App. No. 30,638,

14 a memorandum opinion filed on November 21, 2011, is misplaced. [MIO 5] First,

15 as Defendant recognizes, a memorandum opinion of this Court may have persuasive

16 value, but it is not precedent. Rule 12-405 NMRA. Second, the facts of Fordyce may

17 be distinguished from the facts in this case. In that case, during a turn, the defendant’s

18 truck tires touched the lane line but the defendant was not engaged in otherwise erratic

19 driving behavior. [MIO 6] In contrast, in this case, the officer observed Defendant’s


                                                5
 1 vehicle cross over the centerline to the left; Defendant’s vehicle turned back to the

 2 right and hit the shoulder line; Defendant’s vehicle then turned back to the left,

 3 touched the [center] line, and then turned back to the right and “did the same thing.”

 4 [RP 101, 9:14:37 AM] A video tape shown at trial confirmed the officer’s testimony

 5 about Defendant’s vehicle’s actions. [RP 102-03, 9:20:32 - 9:38:06 AM] Defendant’s

 6 otherwise erratic driving behavior implicated Section 66-7-317(A) even where

 7 Defendant could not be convicted of violating it because there were no other vehicles

 8 around. See, e.g., State v. Brennan, 1998-NMCA-176, ¶ 12, 126 N.M. 389, 970 P.2d

 9 161 (explaining that “[a] reasonable suspicion may be a mistaken one. A lawful

10 investigatory stop may be made on reasonable suspicion of an offense even though the

11 defendant cannot ultimately be convicted of that offense”. (internal quotation marks

12 and citations omitted)). Defendant’s erratic driving also implicated Section 66-8-

13 102(A). “Thus, . . . there were facts available to [the o]fficer . . . that would warrant

14 a person of reasonable caution to believe the stop was appropriate.” Brennan, 1998-

15 NMCA-176, ¶ 10. The officer was justified in stopping Defendant’s vehicle.

16 CONCLUSION

17        We affirm the district court’s decision to deny Defendant’s motion to suppress.

18        IT IS SO ORDERED.




                                               6
1
2                              TIMOTHY L. GARCIA, Judge




3 WE CONCUR:


4
5
6 CYNTHIA A. FRY, Judge



7
8 RODERICK T. KENNEDY, Judge




                               7
