 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 CITY OF FARMINGTON,

 8          Plaintiff-Appellee,

 9 v.                                                                                    NO. 30,638

10 ANDREW FORDYCE,

11          Defendant-Appellant,


12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Sandra A. Price, District Judge

14   City of Farmington
15   Jennifer N. Breakell, Assistant City Attorney
16   Brigette Thomas, Assistant City Attorney
17   Farmington, NM

18 for Appellee

19 Victor A. Titus
20 Farmington, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 GARCIA, Judge.

24          Defendant was convicted in the municipal court of driving under the influence
 1 of intoxicating liquor or drugs (“DWI”), contrary to NMSA 1978, Section 66-8-102

 2 (2008) (amended 2010) and driving on roadways laned for traffic (“Roadways

 3 Violation”), contrary to NMSA 1978, Section 66-7-317 (1978), and appealed to the

 4 district court. During the district court trial de novo, Defendant moved to suppress the

 5 evidence obtained from the traffic stop. Defendant argued that the City lacked

 6 reasonable suspicion for the traffic stop because the stop was erroneous based on

 7 whether Defendant violated the Roadways Violation statute.             Defendant also

 8 challenged the constitutionality of the stop as pretextual and objected to the use of a

 9 horizontal gaze and nystagmus field test to determine probable cause for his arrest.

10 The district court denied Defendant’s motion to suppress and again found him guilty

11 of DWI, but did not find him guilty on the underlying Roadways Violation offense.

12 Defendant appeals his DWI conviction. We reverse the district court’s denial of the

13 motion to suppress the evidence obtained from the traffic stop because the officer

14 lacked reasonable suspicion for the stop.

15 BACKGROUND

16        Because this is a memorandum opinion and the parties are familiar with the

17 factual and procedural background, we do not provide a detailed summary herein.

18 The factual information relevant to our conclusion will be discussed in connection

19 with each issue addressed by this Court and is briefly summarized as follows. On


                                               2
 1 October 24, 2009, at approximately 1:15 a.m., the arresting officer followed

 2 Defendant’s truck for approximately one-half mile. The officer did not observe any

 3 traffic violations until the officer observed Defendant’s vehicle veer to the left prior

 4 to making a wide right turn. During this right turn, the officer believed Defendant’s

 5 truck crossed into the other lane of traffic in violation of the Roadways Violation

 6 statute. As a result, the officer stopped Defendant’s truck. After approaching the

 7 truck, the officer noticed signs that Defendant was under the influence of alcohol.

 8 Defendant was subsequently arrested and charged with a Roadways Violation and

 9 DWI.

10        At trial, Defendant moved to suppress all evidence supporting the charge of

11 DWI as stemming from an illegal stop and seizure. In his motion, Defendant argued

12 that the officer lacked reasonable suspicion to stop and detain him for a Roadways

13 Violation because Defendant’s driving did not actually violate the statute. Section 66-

14 7-317(A) states in relevant part: “a vehicle shall be driven as nearly as practicable

15 entirely within a single lane and shall not be moved from such lane until the driver has

16 first ascertained that such movement can be made with safety.” Defendant argued that

17 he did not violate the statute because maintaining a single lane with such a large truck

18 in such a tight turn is impracticable. The district court found it was reasonable for the

19 officer to stop Defendant to investigate the possible violation and denied Defendant’s


                                               3
 1 motion. The district court also issued findings of fact and conclusions of law and

 2 determined that “[t]he City failed to show Defendant’s turn wasn’t practic[able] or

 3 was unsafe,” but that “[t]he Officer had reasonable suspicion to stop the Defendant’s

 4 vehicle.”

 5 DISCUSSION

 6 A.     Preservation

 7        As a preliminary matter, the City contends that “Defendant did not raise the

 8 issue of mistake of law at the [d]istrict [c]ourt level, and cannot argue this new theory

 9 because it was not preserved as an appellate issue.” We conclude that Defendant

10 properly preserved his mistake of law argument for review. The crux of Defendant’s

11 argument below was that the officer’s interpretation of the Roadways Violation statute

12 was wrong and constituted a mistaken application of the statute.

13        The rules of preservation are construed to ensure that the district court had the

14 opportunity to rule on the issue and that there is an adequate record for appeal. See

15 Rule 12-216(A) NMRA (“To preserve a question for review it must appear that a

16 ruling or decision by the district court was fairly invoked, but formal exceptions are

17 not required[.]”); State v. Reyes, 2002-NMSC-024, ¶ 41, 132 N.M. 576, 52 P.3d 948

18 (explaining that parties must object at trial in order to alert the district court of the

19 perceived error, to allow the court to correct any error, and to provide an adequate


                                               4
 1 record for appellate review). “[W]e have stated that our rule disregards form and

 2 relies upon substance, and merely requires that a question be fairly presented to the

 3 [district] court and a ruling invoked.” State v. Balderama, 2004-NMSC-008, ¶ 19,

 4 135 N.M. 329, 88 P.3d 845 (internal quotation marks and citation omitted). The

 5 record indicates that the district court was properly alerted to and ruled upon the legal

 6 issue that Defendant now raises on appeal.

 7         Although Defendant never explicitly argued that the officer was mistaken as

 8 to the law, he did substantively argue that no reasonable suspicion existed because no

 9 traffic law was violated. In his motion to suppress, Defendant argued that there was

10 no reasonable suspicion for the stop because Defendant did not violate the Roadways

11 Violation statute. At the suppression hearing, Defendant again challenged the legality

12 of the stop. He specifically argued that Section 66-7-317 requires a driver to merely

13 maintain a single lane as close as practicable. He then argued that he did not violate

14 the statute because maintaining a single lane with such a large truck in such a tight

15 turn was impracticable. Defendant also elicited, and the district court considered,

16 testimony regarding the officer’s mistaken belief as to the law. This record was

17 sufficient to preserve Defendant’s mistake of law argument. Additionally, the district

18 court denied Defendant’s motion to suppress based on reasonable suspicion because

19 the court believed that it was unclear whether or not Defendant violated the statute.


                                               5
 1 The district court ruled on the issue before us and it was adequately preserved. We

 2 now address the merits of Defendant’s argument.

 3 B.     Standard of Review

 4        “A review of the suppression of evidence is a mixed question of law and fact.

 5 We consider the facts in the light most favorable to the prevailing party and defer to

 6 the district court’s findings of fact if those findings are supported by substantial

 7 evidence.” State v. Anaya, 2008-NMCA-020, ¶ 5, 143 N.M. 431, 176 P.3d 1163.

 8 The standard of review for an appeal from an order denying suppression also requires

 9 application of law to fact, which we review de novo. State v. Hubble, 2009-NMSC-

10 014, ¶ 5, 146 N.M. 70, 206 P.3d 579.

11 C.     Establishing Reasonable Suspicion if a Mistake of Law has Occurred

12        “Article II, Section 10, of the New Mexico Constitution and the Fourth

13 Amendment to the United States Constitution control the validity of investigative

14 [traffic] stops. Before a police officer makes a traffic stop, he must have a reasonable

15 suspicion of illegal activity.” Anaya, 2008-NMCA-020, ¶ 6. “Reasonable suspicion

16 in New Mexico is analyzed with the use of an objective test.” Hubble, 2009-NMSC-

17 014, ¶ 23. “[C]onduct premised totally on a mistake of law cannot create the

18 reasonable suspicion needed to make a traffic stop; but if the facts articulated by the

19 officer support reasonable suspicion on another basis, the stop can be upheld.” Anaya,


                                              6
 1 2008-NMCA-020, ¶ 15. However, “[i]t cannot be objectively reasonable to stop a

 2 vehicle when there are no facts to support the inference that a law has been violated.”

 3 Id. ¶ 20. Thus, “it is not fatal in terms of reasonable suspicion if an officer makes a

 4 mistake of law when he conducts a traffic stop,” but the totality of the circumstances

 5 must indicate that there were other specific and articulable facts upon which the

 6 officer could determine there was reasonable suspicion for the stop. Hubble, 2009-

 7 NMSC-014, ¶ 28.

 8        The City relied on Section 66-7-317 as the basis for the traffic stop in this case.

 9 Section 66-7-317(A) only requires a person to drive “as nearly as practicable entirely

10 within a single lane and shall not be moved from such lane until the driver has first

11 ascertained that such movement can be made with safety.” The district court found

12 that although Defendant’s tires touched the lane line, no traffic violation occurred

13 because of the limiting qualifiers of “practicable” and “can do so with safety” that are

14 set forth in this particular statute. We must now conduct de novo review of this

15 statutory interpretation. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382

16 (1995). We conclude that the plain language of the statute does not make touching or

17 crossing the center line a per se violation of the statute. See Santillo v. N.M. Dep’t of

18 Pub. Safety, 2007-NMCA-159, ¶ 17, 143 N.M. 84, 173 P.3d 6 (“The plain language

19 of the statute is our primary guide to legislative intent[.]”). Rather, the statute only


                                               7
 1 imposes liability on a driver who fails to maintain a single lane when it is practicable

 2 to maintain that lane and unsafe to move from the lane. See Aragon v. Speelman, 83

 3 N.M. 285, 288, 491 P.2d 173, 176 (Ct. App. 1971) (refusing to instruct the jury on a

 4 Section 66-7-317 violation where there was no evidence that defendant driver could

 5 not safely change lanes when she did).

 6        Having determined that Defendant did not commit a per se violation of Section

 7 66-7-317, we now turn to the application of the law for establishing reasonable

 8 suspicion for a traffic stop. In Anaya, a police officer observed a driver weaving

 9 within his lane of traffic and later stopped the vehicle after he failed to use a turn

10 signal. 2008-NMCA-020, ¶ 2. The officer erroneously believed that failure to use a

11 turn signal was a per se violation of the traffic code, but the statute only made failure

12 to signal an infraction if it would have affected traffic. Id. ¶ 3. The officer did not

13 observe any other cars in the vicinity of the defendant’s vehicle or any other violation

14 of the traffic code. Id. As a result, the defendant’s failure to signal could not have

15 affected traffic. Id. The defendant moved to suppress the DWI evidence obtained

16 during the stop on the basis that the stop was invalid and not supported by reasonable

17 suspicion. Id. ¶ 3. The district court granted the motion to suppress. Id. ¶ 4. This

18 Court affirmed recognizing that the stop was based upon the officer’s erroneous

19 mistake of law regarding the statute. Id. ¶ 17.


                                               8
 1         In State v. Brennan, 1998-NMCA-176, ¶¶ 9, 11-12, 126 N.M. 389, 970 P.2d

 2 161, where there was actual evidence of driving in a careless manner, this Court

 3 affirmed the district court’s denial of a defendant’s motion to dismiss despite an

 4 officer’s mistake of law. The defendant in Brennan was observed violating the

 5 careless driving statute, but he could not be charged where such driving occurred on

 6 private property. Id. ¶ 9. However, the officer’s testimony was considered sufficient

 7 to establish that defendant was in fact driving carelessly and an investigatory stop was

 8 reasonable under those circumstances. Id. ¶¶ 9, 12. This Court explained, “[a]

 9 reasonable suspicion may be a mistaken one. A lawful investigatory stop may be

10 made on reasonable suspicion of an offense even though the defendant cannot

11 ultimately be convicted of that offense.” Id. ¶ 12 (alteration in original) (internal

12 quotation marks and citation omitted). “Thus, the question [was] whether there were

13 facts available to [the] [o]fficer . . . that would warrant a person of reasonable caution

14 to believe the stop was appropriate.” Id. ¶ 10.

15         Anaya and Brennan establish that an officer’s misunderstanding of the law does

16 not create reasonable suspicion for a traffic violation unless other facts surrounding

17 the defendant’s driving would provide objective grounds to initiate an investigatory

18 stop. See State v. Munoz, 1998-NMCA-140, ¶ 9, 125 N.M. 765, 965 P.2d 349 (“The

19 subjective belief of the officer does not in itself affect the validity of the stop; it is the


                                                 9
 1 evidence known to the officer that counts, not the officer’s view of the governing

 2 law.”). Because Defendant in this case did not violate the Roadways Violation statute,

 3 the determinative question is whether the officer’s observation of Defendant’s driving

 4 provided reasonable grounds to believe that Defendant should still be stopped for

 5 investigative purposes. Therefore, the officer had reasonable suspicion for the stop

 6 only if the turn was unsafe and maintaining the line was practicable, or Defendant was

 7 otherwise engaged in erratic driving that needed further investigation.

 8        We now address the particular facts in this case to determine whether the officer

 9 had any other factual basis to initiate an investigatory stop of Defendant’s vehicle.

10 We must view the facts in the light most favorable to the prevailing party. State v.

11 Sanchez, 2005-NMCA-081, ¶ 5, 137 N.M. 759, 114 P.3d 1075. Even viewing the

12 facts in the light most favorable to the City, nothing in the record indicates that

13 Defendant was otherwise driving erratically or the circumstances required an

14 investigatory stop. The officer did not observe any traffic violations or erratic driving

15 for the one-half mile that he followed Defendant. In the statement of probable cause

16 for the arrest, the officer said that he stopped Defendant’s vehicle after it “veered left

17 crossing into the inside eastbound lane then made a wide turn.” Additionally, the

18 officer explained that his observation of the right turn was the sole reason he stopped

19 Defendant, and he admitted that he would have been less likely to stop Defendant if


                                               10
 1 he had seen the vehicle turning at 10:30 a.m., as opposed to 1:17 a.m. While the

 2 officer did concede that the turn was “a very tight turn,” he also explained that,

 3 according to his understanding of Section 66-7-317, a violation automatically occurs

 4 if a vehicle touches any part of the lane lines. As such, the officer’s mistaken

 5 understanding of the statute was the sole reason for the stop and he did not attempt to

 6 ascertain whether making the turn entirely inside the lane was impracticable or

 7 whether the Defendant’s wide turn was unsafe. In fact, when Defendant attempted to

 8 explain his turn, the officer responded simply that “it’s not legal” to go into the inside

 9 lane to make a turn.       In effect, the City presented no evidence to contradict

10 Defendant’s explanation for his wide turn. We agree with the district court’s

11 conclusion that “[t]he City failed to show Defendant’s turn wasn’t practic[able] or was

12 unsafe.” In the instant case, the arresting officer made a mistake of law, and no other

13 factual basis was presented by the officer that would justify the need for an

14 investigatory stop of Defendant’s vehicle. These factors are more analogous to Anaya

15 than Brennan. Without a further factual basis to conduct an investigatory stop of

16 Defendant’s vehicle, the stop lacked reasonable suspicion and the motion to suppress

17 should have been granted. Because we reverse the district court’s finding as to

18 reasonable suspicion for the stop, we need not address Defendant’s remaining

19 contentions of error.


                                               11
1 CONCLUSION

2        We hold that the officer did not have a reasonable suspicion to stop and detain

3 Defendant or to conduct an investigatory stop of his vehicle. We reverse the district

4 court’s order denying suppression of the evidence obtained as a result of the traffic

5 stop. We remand this case to the district court with instructions to dismiss the DWI

6 conviction.

7        IT IS SO ORDERED.


 8                                       ___________________________________
 9                                       TIMOTHY L. GARCIA, Judge
10 WE CONCUR:



11 _________________________________
12 JONATHAN B. SUTIN, Judge



13 _________________________________
14 CYNTHIA A. FRY, Judge




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