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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                                  No. 32,001

 5 JULIAN CARO,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Lisa C. Schultz, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   Ralph E. Trujillo, Assistant Attorney General
12   Albuquerque, NM

13 for Appellant

14 Jacqueline L. Cooper, Chief Public Defender
15 Santa Fe, NM

16 for Appellee

17                                 MEMORANDUM OPINION

18 VIGIL, Judge.
 1        The State appeals from the district court’s order that excludes “[a]ll evidence

 2 obtained in reference to the traffic allegations in count 2" [RP 75], which relates to a

 3 charge of driving on the wrong side of the road. [RP 7] Our notice proposed to affirm

 4 and the State filed a memorandum in opposition. We remain unpersuaded by the

 5 State’s arguments, and therefore affirm.

 6        The State continues to argue that the district court erred in excluding evidence

 7 that Defendant drove on the wrong side of the road. As we stated in our notice, the

 8 district court’s ruling was premised on an evidentiary basis for excluding the

 9 evidence, and for this reason we review the district court’s exclusion of evidence

10 pursuant to an abuse of discretion standard. See State v. Armendariz, 2006-NMSC-

11 036, ¶ 6, 140 N.M. 182, 141 P.3d 526, overruled on other grounds by State v. Swick,

12 2012-NMSC-018, __ N.M. __, __P.3d __. The district court excluded evidence that

13 Defendant drove on the wrong side of the road because no signs were posted to show

14 that the one-way road became a two-way road at the intersection. [RP 75; DS 3] We

15 cannot conclude that the district court abused its discretion in its ruling, as the

16 probative value of the evidence as it relates to the DWI charge against Defendant was

17 called into question by the lack of signage. See generally Rule 11-403 NMRA (stating

18 that evidence may be excluded if its probative value is substantially outweighed by

19 the danger of unfair prejudice, confusion of the issues or misleading the jury). In light



                                               2
 1 of the lack of signage to show that the one-way road became a two-way road, the

 2 district court could have reasonably concluded that the jury would attribute, without

 3 adequate and unbiased consideration, the cause of Defendant’s driving on the wrong

 4 side of the road to be due to impairment rather than to the lack of signage.

 5        We acknowledge the State’s view that the State has no duty to post two-way

 6 road signs in general, and its suggestion that Defendant’s long-time status as a resident

 7 of Mesilla and imputed knowledge of the road’s status nonetheless minimized any

 8 duty. [MIO 5] While the State’s argument in isolation may have force, it does not

 9 address the particular circumstance at issue in this DWI prosecution—the lack of

10 signage when the one-way road became a two-way road at the intersection. Under

11 these circumstances, we can not conclude that the district court abused its discretion

12 in excluding the evidence. Moreover, although the State nonetheless maintains that

13 the fact that Defendant was driving on the wrong side of the road was relevant to

14 whether he was driving while intoxicated [MIO 4], there is no indication that this

15 particular argument was raised below. See generally Rule 12-216(A) NMRA

16 (preservation requirements). Nonetheless, given the unusual circumstances and lack

17 of signage marking the change from one-way to two-way traffic, we conclude that the

18 district court correctly assessed that the probative value of such evidence would be

19 outweighed by the prejudicial impact of such evidence in the context of a DWI trial.



                                               3
1 See generally State v. Rosales, 2004-NMSC-022, ¶ 12, 136 N.M. 25, 94 P.3d 768

2 (recognizing that the district court is vested with great discretion in applying Rule 11-

3 403 and will not be reversed absent an abuse of such discretion).

4        For reasons provided herein and in our notice, we affirm.

5        IT IS SO ORDERED.

6                                                 _______________________________
7                                                 MICHAEL E. VIGIL, Judge
8 WE CONCUR:



 9 _________________________________
10 JONATHAN B. SUTIN, Judge



11 _________________________________
12 RODERICK T. KENNEDY, Judge




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