 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,110

10 GERALD LOPEZ,

11          Defendant-Appellant.

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

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

16 for Appellee

17   Jacqueline L. Cooper, Acting Chief Public Defender
18   Santa Fe, NM
19   Josephine H. Ford, Assistant Public Defender
20   Albuquerque, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 VANZI, Judge.
 1        Defendant appeals from a district court on-the-record affirmance of his

 2 metropolitan court conviction for DWI (3rd Offense). We issued a calendar notice

 3 proposing to affirm. Defendant has responded with a memorandum in opposition.

 4 We affirm.

 5        Issue A: Defendant continues to claim that the State had a duty to collect and

 6 preserve a chemical (BAC) test pursuant NMSA 1978, Section 66-8-107(B) (1993).

 7 [MIO 8] As part of the Implied Consent Act, that section states that a test “shall be

 8 administered at the direction of a law enforcement officer.” Id. Defendant construes

 9 this language to create a duty to the State to collect and preserve a blood or alcohol

10 test. However, the Act itself addresses the implied consent to take the test, and we

11 interpret this language to simply state that a law enforcement officer is the individual

12 who directs implementation of the test, as opposed to any mandatory duty to collect

13 this evidence. In this case, the officer testified that the blood test was not administered

14 because a technician was not available, and a breath test was not conducted because

15 Defendant’s injuries from the accident were such that he was not capable of taking a

16 breath test. [MIO 5] To the extent that any duty to test otherwise existed, the

17 Legislature has left it to the discretion of the officer on whether or not to conduct any

18 chemical testing under these circumstances. See NMSA 1978, § 66-8-108 (1978)

19 (“Any person who is dead, unconscious or otherwise in a condition rendering him


                                                2
 1 incapable of refusal, shall be deemed not to have withdrawn the consent provided by

 2 Section 66-8-107 . . . and the test or tests designated by the law enforcement officer

 3 may be administered.”) (Emphasis added)).

 4        Even assuming, arguendo, that a duty to collect this evidence existed, the

 5 district court specifically found that the failure to do so was, at most, ordinary

 6 negligence. [MIO 7] Under these circumstances, the denial of the motion to suppress

 7 would not constitute reversible error. See State v. Ware, 118 N.M. 319, 325-26, 881

 8 P.2d 679, 685-86 (1994) (“When the failure to gather evidence is merely negligent,

 9 an oversight, or done in good faith, sanctions are inappropriate, but the defendant can

10 still examine the prosecution’s witnesses about the deficiencies of the investigation

11 and argue the investigation’s shortcomings against the standard of reasonable

12 doubt.”).

13        Issue B: Defendant continues to argue that the evidence was insufficient to

14 support his conviction for driving while intoxicated. [MIO 14] A sufficiency of the

15 evidence review involves a two-step process. Initially, the evidence is viewed in the

16 light most favorable to the verdict. Then the appellate court must make a legal

17 determination of “whether the evidence viewed in this manner could justify a finding

18 by any rational trier of fact that each element of the crime charged has been




                                              3
 1 established beyond a reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887

 2 P.2d 756, 760 (1994) (internal quotation marks and citation omitted).

 3        In order to support his conviction, the evidence had to show that Defendant

 4 drove a vehicle under the influence of intoxicating liquor. See NMSA 1978, § 66-8-

 5 102(A) (2010). Here, Officer Powers testified that he was on the lookout for a white

 6 Camaro after receiving a dispatch that it was being driven erratically. [MIO 1]

 7 Approximately seven minutes later, Officer Powers received a dispatch concerning a

 8 motor vehicle accident with possible injuries. [MIO 1] When Officer Powers arrived

 9 at the scene, he observed Defendant sitting on the ground next to another officer, with

10 the Camaro upside down, and open and unopened beer cans strewn about. [MIO 1-2]

11 Defendant had a strong odor of alcohol, bloodshot eyes, and slurred speech. [MIO 2]

12 No other people were seen in the vicinity. [MIO 2] Officer Powers stated that the

13 conditions at the scene indicated to him that the car had been speeding and that the

14 driver was inattentive. [MIO 3] As indicated, there were no field sobriety tests or

15 chemical tests conducted because Defendant was not in a condition to perform them,

16 and Defendant was instead transported to the hospital. Based on this, our calendar

17 notice proposed to hold that the evidence was sufficient to support Defendant’s

18 conviction.




                                              4
1        We are not persuaded by Defendant’s memorandum in opposition, which

2 essentially argues that the accident could have been caused by something other than

3 impairment, and that the mere odor of alcohol was insufficient alone to support the

4 conviction. As set forth above, the fact finder could rely on Officer Power’s analysis

5 of the accident, the odor of alcohol, the bloodshot eyes, and the open beer cans.

6        For the reasons stated above, we affirm.

7        IT IS SO ORDERED.


8                                         __________________________________
9                                         LINDA M. VANZI, Judge

10 WE CONCUR:



11 _________________________________
12 MICHAEL D. BUSTAMANTE, Judge



13 _________________________________
14 CYNTHIA A. FRY, Judge




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