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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     No. 35,045

 5 JEROME JOHN,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean Jr., District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 SUTIN, Judge.
 1   {1}   Defendant appeals from a district court judgment entered after a jury found him

 2 guilty of driving while intoxicated (DWI) (slightest degree). We issued a calendar

 3 notice proposing to affirm and to remand for correction of the clerical error described

 4 in the calendar notice. Defendant has responded with a memorandum in opposition.

 5 We affirm the conviction and remand for correction of the clerical error.

 6   {2}   Defendant continues to challenge the sufficiency of the evidence to support his

 7 conviction for DWI. [MIO 4] A sufficiency of the evidence review involves a

 8 two-step process. Initially, the evidence is viewed in the light most favorable to the

 9 verdict. Then, the appellate court must make a legal determination of “whether the

10 evidence viewed in this manner could justify a finding by any rational trier of fact

11 that each element of the crime charged has been established beyond a reasonable

12 doubt.” State v. Apodaca, 1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756

13 (internal quotation marks and citation omitted).

14   {3}   In order to convict Defendant of DWI, the evidence had to show that

15 Defendant was under the influence of intoxicating liquor while operating a motor

16 vehicle and that this affected his ability to operate the vehicle to at least the slightest

17 degree. [RP 111] See UJI 14-4501 NMRA. Defendant’s memorandum in opposition

18 does not persuade us that our calendar notice, which relied on the facts as set forth in

19 the docketing statement, was wrong with respect to the sufficiency issue. Specifically,


                                                2
 1 the arresting officer testified that he was dispatched to a gas station in reference to

 2 Defendant’s vehicle. [DS 2] Defendant was in the process of parking when the officer

 3 arrived, and Defendant was sitting in the driver’s seat, with three passengers in the

 4 vehicle. [DS 2] The officer approached Defendant’s vehicle and observed Defendant

 5 to have bloodshot, watery eyes. [RP 89] There was an empty bottle in the vehicle.

 6 [RP 89] Defendant admitted to drinking and driving the vehicle to that location. [DS

 7 2; RP 89] Defendant performed poorly on the walk-and-turn field sobriety test and

 8 declined to perform the one-leg-stand test. [DS 2] Because he refused to take a breath

 9 test, Defendant’s blood was drawn a little over three hours after the officer first came

10 into contact with him. [DS 2-3] The result was a breath alcohol content (BAC) of .24,

11 three times the legal limit. [RP 92] In light of this evidence, we believe that there was

12 sufficient evidence presented to support Defendant’s DWI conviction. See, e.g., State

13 v. Soto, 2007-NMCA-077, ¶ 34, 142 N.M. 32, 162 P.3d 187 (holding that there was

14 sufficient evidence to support a conviction where officers observed the defendant

15 driving, where the defendant admitted to drinking, and where the defendant had

16 bloodshot and watery eyes, smelled of alcohol, and slurred speech); State v. Notah-

17 Hunter, 2005-NMCA-074, ¶ 24, 137 N.M. 597, 113 P.3d 867 (holding that evidence

18 that a defendant smelled of alcohol, had slurred speech, admitted to drinking alcohol,




                                               3
 1 failed field sobriety tests, and was driving erratically was sufficient to uphold a

 2 conviction for driving while intoxicated).

 3   {4}   Defendant continues to maintain that the BAC test results should not have been

 4 considered in the absence of expert relation-back testimony. [MIO 6] However, this

 5 Court has held that such testimony is unnecessary in a “slightest degree” case, as

 6 opposed to a “per se” case. See State v. Pickett, 2009-NMCA-077, ¶ 15, 146 N.M.

 7 655, 213 P.3d 805 (affirming the consideration of BAC test results that had been

 8 rejected for purposes of per se violation in looking at overall evidence of “slightest

 9 degree” evidence).

10   {5}   Finally, as we observed in our calendar notice, the amended judgment states

11 that Defendant was convicted under NMSA 1978, Section 66-8-102(C)(1) (2010), the

12 “per se” DWI alternative. [RP 136] However, the jury was only instructed on the

13 “slightest degree” alternative set forth in Section 66-8-102(A) and UJI 14-4501. [RP

14 111, 127] The district court refused the State’s requested “per se” instruction. [RP

15 121] Accordingly, we affirm Defendant’s conviction and remand to the district court

16 to substitute in its judgment the reference to Section 66-8-102(C)(1) with a reference

17 to Section 66-8-102(A).

18   {6}   IT IS SO ORDERED.




                                              4
1                               __________________________________
2                               JONATHAN B. SUTIN, Judge


3 WE CONCUR:


4 _________________________________
5 MICHAEL D. BUSTAMANTE, Judge


6 _________________________________
7 LINDA M. VANZI, Judge




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