 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 29,503

10 PATRICK ROMERO,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Albert S. “Pat” Murdoch, 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   Vicki W. Zelle, Assistant Public Defender
20   Albuquerque, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 WECHSLER, Judge.
 1          Defendant appeals his convictions for DWI and failing to maintain a lane. We

 2 issued a calendar notice proposing to affirm the convictions and the district court’s

 3 decision. In response, Defendant has filed a memorandum in opposition. After

 4 careful consideration of Defendant’s arguments, we affirm the decision of the district

 5 court.

 6          In our calendar notice, we proposed to apply the case of State v. Garza,

 7 2009-NMSC-038, 146 N.M. 499, 212 P.3d 387, in which our Supreme Court altered

 8 our speedy trial guidelines. The Court held that Garza applies in cases where a

 9 motion to dismiss based on speedy trial was initiated by the defendant on or after

10 August 13, 2007. Id. ¶ 50. In this case, a motion to dismiss based on speedy trial was

11 filed on August 21, 2007. Therefore, we proposed to hold that the new guidelines in

12 Garza are applicable to this case.

13          In response to our calendar notice, Defendant claims that a motion for

14 dismissal based on speedy trial grounds was initiated by him before August 13, 2007

15 by the following actions: (1) when responding to motions for continuance, Defendant

16 argued that further delay beyond July 17 for holding trial “would violate” his speedy

17 trial rights; and (2) after mistrial was declared, Defendant argued that the case should

18 be dismissed based on double jeopardy grounds and also raised the issue of his right

                                              2
 1 to a speedy trial having been affected based upon the prosecutor’s statements, which

 2 ultimately led to the mistrial in the first place. Although Defendant alerted the district

 3 court that a trial date beyond July 17 would violate his speedy trial rights and argued

 4 that prosecutorial misconduct led to the mistrial, Defendant did not initiate a motion

 5 to dismiss the charges based on a speedy trial violation until after August 13, 2007.

 6        On the date of the mistrial, when the district judge and the parties were

 7 discussing a new trial date, defense counsel made a motion to dismiss the charges due

 8 to a violation of double jeopardy rights. Defense counsel also expressed concern,

 9 based on prosecutorial misconduct, regarding Defendant’s right to have a speedy trial.

10 [CD1, 5/24/07, 12:37:07-12:37:40] The memorandum in opposition includes quoted

11 language from the discussion in the district court but does not include the full text of

12 the oral motion. After mistrial was declared, defense counsel stated:

13        Your honor I just want to make a record. I’m going to move that this
14        case be dismissed. I believe that trying Defendant again would violate
15        the double jeopardy protections under the United States and New Mexico
16        Constitution. I believe that jeopardy has attached. And I also raise the
17        issue of the Defendant’s right to a speedy trial having been affected
18        based upon the prosecutor’s statements, which ultimately led to a mistrial
19        in the first place. I do understand that the rule starts anew and July 17th
20        is going to fit with everyone’s schedule. So I want to make that record.

21 [CD1, 5/24/07, 12:37:05-12:37:53] The State responded to defense counsel’s double

22 jeopardy argument and the district judge agreed with the State’s argument, stating:

                                               3
 1        I agree. I don’t believe that double jeopardy attaches in this situation.
 2        I believe a mistrial is the appropriate cure for what happened in
 3        openings, and this case will be reset.

 4 [CD1, 5/24/07, 12:38:24-12:38:39]

 5        The oral motion made by defense counsel was based on a claim regarding

 6 Defendant’s double jeopardy rights and an argument that the prosecutor had engaged

 7 in misconduct that led to mistrial. Defense counsel did not ask the district court to

 8 dismiss the case based on a violation of speedy trial. It is apparent from the entire

 9 discussion following the declaration of a mistrial that no motion to dismiss on speedy

10 trial grounds was initiated by defense counsel, and the district court was not alerted

11 to a claim that dismissal was appropriate based on speedy trial grounds.

12        Garza is applicable if a motion to dismiss based on speedy trial is initiated on

13 or after August 13, 2007. 2009-NMSC-038, ¶ 50. Defendant did not initiate a motion

14 to dismiss based on speedy trial grounds until August 21, 2007. Under the guidelines

15 in Garza, a one-year delay in a simple case is presumptively prejudicial. Id. ¶ 47. The

16 delay in this case was less than one year and, therefore, was not presumptively

17 prejudicial. See State v. Stock, 2006-NMCA-140, ¶ 12, 140 N.M. 676, 147 P.3d 885

18 (“When a speedy trial claim is made, the defendant must make a threshold showing

19 that the length of delay is presumptively prejudicial.” (internal quotation marks and


                                              4
 1 citation omitted)). Because the delay was not presumptively prejudicial, we need not

 2 engage in a speedy trial analysis.

 3        Defendant continues to claim that the BAT machine should have been re-

 4 calibrated after the BAT mobile was moved from one side of the building to another.

 5 Defendant claims that the regulations require notification to SLD when “substantial

 6 changes” are made or there is “any movement of the instrument” from its original

 7 approved location. Defendant argues that SLD should have been notified when the

 8 BAT mobile was moved. Defendant provides no support for his claim that the

 9 machine was moved from its original approved location when the BAT mobile was

10 moved. In fact, the district court held that it can be inferred that, by installing a

11 machine in a mobile BAT station, the SLD knew the BAT mobile would be moved.

12 [RP 231-32] Defendant has not shown that the SLD regulations were not complied

13 with in this case. In addition, as discussed in the calendar notice, re-calibration of the

14 machine after it has been moved is within the discretion of the SLD and is not

15 mandatory.

16        Defendant continues to claim that the district court erred in refusing to allow

17 access to the officer’s personal internal affairs file or to allow questioning of the

18 officer about the file. Defendant claims that he showed there was a strong financial


                                               5
 1 incentive to conduct traffic stops and a powerful motive to support the stops with

 2 “embellishments or lies.” [MIO 36-37] We review the admission of evidence for

 3 abuse of discretion. See State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511,

 4 964 P.2d 72.

 5        In our calendar notice, we pointed to the district court’s opinion, which stated

 6 that Defendant “lacked a ‘smoking gun’” and could point to no situation where the

 7 officer “was proven wrong or lacked credibility.”           [RP 230]      Although the

 8 metropolitan court found that the file was irrelevant, Defendant was given “leeway”

 9 in cross-examining the officer. We hold that denying Defendant access to the

10 officer’s file did not amount to an abuse of discretion. See State v. Roybal, 115 N.M.

11 27, 30, 846 P.2d 333, 336 (Ct. App. 1992) (determining that where the defendant

12 made no showing that an internal affairs file contained information material to the

13 preparation of his defense, there was no basis for appellate review of the question of

14 admission of the files).

15         Defendant claims that his double jeopardy rights were violated when he was

16 tried a second time after a mistrial was declared in the first trial. Defendant continues

17 to claim that the mistrial was the result of prosecutorial misconduct. As discussed in

18 our calendar notice, the metropolitan court chose to wait until the State presented its


                                               6
 1 foundation for admission of the BAT card before ruling on Defendant’s motion to

 2 suppress the BAT card. Mistrial was declared after the State, during opening

 3 argument, stated that the jury would see that Defendant “was well above the legal

 4 limit.” After declaring a mistrial, the metropolitan court found that the statement did

 5 not rise to the level of prosecutorial misconduct under State v. Breit, 1996-NMSC-

 6 067, 122 N.M. 655, 930 P.2d 792, and retrial would not be barred. Under Breit, retrial

 7 is barred: (1) when the prosecutor’s “conduct is so unfairly prejudicial to the

 8 defendant that it cannot be cured by means short of a mistrial or a motion for a new

 9 trial,” (2) when the prosecutor “knows that the conduct is improper and prejudicial,”

10 and (3) when the prosecutor “either intends to provoke a mistrial or acts in willful

11 disregard of the resulting mistrial.” Breit, 1996-NMSC-067, ¶ 32. We apply the Breit

12 test for determining when retrial is barred after mistrial based on prosecutorial

13 misconduct. As discussed in our calendar notice, the prosecutor’s comment was not

14 due to a personal vendetta against Defendant, the reaction of the prosecutor and his

15 actions from the beginning of the case did not indicate an attempt to engage in

16 misconduct in order to bring about a mistrial, the isolated comment was not sufficient

17 to rise to the level of misconduct that would bar retrial, and the prosecutor’s statement

18 did not rise to the level of the “unrelenting and pervasive” misconduct that occurred


                                               7
 1 in Breit. See id. ¶¶ 41-45. Contrary to Defendant’s argument, we did not state that

 2 a single statement would not meet the Breit test.          Instead, as found by the

 3 metropolitan court, we noted that the single statement in this case did not meet the

 4 Breit test.

 5          We disagree with Defendant’s claim that the prosecutor’s conduct was “an

 6 effort to inject unfair prejudice into the trial.” [MIO 45] We also disagree that the

 7 prosecutor made the statement in order to cause a mistrial to prevent any chance that

 8 Defendant would be acquitted in the first trial. There is simply no support for a claim

 9 that the prosecutor engaged in the type and amount of misconduct necessary under

10 Breit.

11          For the reasons discussed herein and in our calendar notice, we affirm the

12 district court’s decision.

13          IT IS SO ORDERED.


14                                                _______________________________
15                                                JAMES J. WECHSLER, Judge
16 WE CONCUR:


17 _______________________________
18 RODERICK T. KENNEDY, Judge



                                              8
1 _______________________________
2 MICHAEL E. VIGIL, Judge




                                    9
