 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 5   filing date.

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

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                           NO. 29,992

10 JAMES MILLER,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Neil Candelaria, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Santa Fe, NM

19 Linda Yen, Assistant Public Defender
20 Albuquerque, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 FRY, Chief Judge.
 1        Defendant appeals his conviction for DWI. We proposed to affirm in a calendar

 2 notice. Defendant has responded to that notice with a memorandum in opposition.

 3 We have carefully considered Defendant’s arguments, but we are not persuaded that

 4 affirmance is not the correct disposition in this case. We therefore affirm.

 5        Defendant continues to claim that the evidence was insufficient to support his

 6 conviction for DWI, and there was no probable cause to arrest him for DWI. As

 7 discussed in our calendar notice, Defendant was convicted of DWI based on evidence

 8 showing that he was driving under the influence of alcohol. State v. Sanchez, 2001-

 9 NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d 446 (Ct. App. 2001) (explaining that a person

10 drives under the influence when he or she is “less able to the slightest degree, either

11 mentally or physically, or both, to exercise the clear judgment and steady hand

12 necessary to handle a vehicle with safety” to the driver and the public (internal

13 quotation marks and citation omitted)). We also noted that an arrest is lawful if the

14 person arrested commits a crime in the presence of the arresting officer, when the

15 circumstances observed by the officer and the common knowledge of the officer

16 provide probable cause to believe a crime is being committed or reasonable grounds

17 to suspect that a crime is being committed. State v. Ochoa, 2008-NMSC-023, ¶ 11,

18 143 N.M. 749, 182 P.3d 130; City of Roswell v. Mayer, 78 N.M. 533, 534, 433 P.2d

19 757, 758 (1967).




                                              2
 1        Here, the officer heard a call that a loud motorcycle was driving in the area, and

 2 then observed Defendant driving his motorcycle while intentionally swerving across

 3 three lanes, accelerating, revving his engine, losing traction, and attempting to spin his

 4 tires. [MIO 1] When the officer activated his lights, Defendant pulled into a business

 5 lot, and his front tire hit the curb as he came to a stop. [MIO 1-2] The officer noticed

 6 that Defendant smelled of alcohol, had bloodshot and watery eyes, and had slurred

 7 speech. Defendant stated that he had been at a friend’s house where he drank four

 8 whiskeys. [MIO 2] Defendant did not indicate that he had any injuries, conditions,

 9 or limitations that would affect his performance on field sobriety tests. [MIO 3]

10 Defendant did not perform well on the walk-and-turn test or the backward-count test.

11 Although Defendant argued that other factors could cause the conditions observed by

12 the officer and that other factors could affect Defendant’s performance on the field

13 sobriety tests, the question is whether the trial court’s “decision is supported by

14 substantial evidence, not whether the trial court could have reached a different

15 conclusion.” See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915

16 P.2d 318; see also State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829

17 (“Contrary evidence supporting acquittal does not provide a basis for reversal because

18 the jury is free to reject [the d]efendant’s version of the facts.”).

19        We hold that the observations by the officer provided reasonable grounds for

20 the officer to suspect that Defendant was committing a crime. We also hold that,


                                               3
 1 based on the officer’s observations, there was sufficient evidence to show that

 2 Defendant was driving his motorcycle under the influence of alcohol in that he was

 3 “less able to the slightest degree, either mentally or physically, or both, to exercise the

 4 clear judgment and steady hand necessary” to handle his motorcycle with safety to

 5 himself or to the public. Sanchez, 2001-NMCA-109, ¶ 6.

 6        For the reasons discussed above and in our calendar notice, we affirm

 7 Defendant’s conviction for DWI.

 8        IT IS SO ORDERED.


 9
10                                           CYNTHIA A. FRY, Chief Judge

11 WE CONCUR:



12
13 ROBERT E. ROBLES, Judge



14
15 TIMOTHY L. GARCIA, Judge




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