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     CORRECTION PAGE: Line 13, changed “Linda Yen” to “Lisa M. Bozone”, FyCcG.
 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3           Plaintiff-Appellee,

 4 v.                                                                       NO. 30,017

 5 JASMINE PADILLA,

 6           Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Carl J. Butkus, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Lisa M. Bozone, Assistant Appellate Defender
14 Albuquerque, NM

15 for Appellant

16                                       MEMORANDUM OPINION

17 FRY, Chief Judge.

18           Defendant appeals from her jury conviction for DWI in metropolitan court. We

19 issued a calendar notice proposing to affirm and Defendant issued a timely

20 memorandum in opposition. Remaining unpersuaded, we affirm.
 1          First, Defendant asserts the metropolitan court judge improperly admitted a

 2 breath card indicating a .08/.08 breath score. We disagree and affirm the district

 3 court.

 4          Officer Carroll observed a grey jeep fail to come to a full stop at a stop sign at

 5 12:10 a.m. [DS 1] The officer turned on his emergency lights and the driver turned

 6 right from the middle lane. [Id.] As the officer approached the jeep, he noticed that the

 7 individual in the driver’s seat, Defendant, had bloodshot, watery eyes. [Id.] The officer

 8 also observed the jeep contained three passengers and had an odor of alcohol. [Id.;

 9 MIO 1]

10          After Defendant produced her license, registration and proof of insurance, the

11 officer asked Defendant to exit the vehicle. [DS 2] Defendant lost her balance while

12 exiting the vehicle. [Id.; MIO 2] The officer then administered field sobriety tests.

13 [Id.] Defendant appears to have performed poorly on the tests, stepping out of line and

14 missing on the heel-to-toe on the walk-and-turn test, and dropping her foot on the one-

15 leg-stand test. [DS 2-3; MIO 2] During a counting test from 56 to 43, Defendant

16 slurred her words and counted past 43. [DS 3; MIO 2]

17          After the field sobriety tests, Defendant was placed under arrest and taken to the

18 police station for a breath test, which registered at .08/.08. [DS 3, 7] Defendant was

19 found guilty of DWI under both the per se standard and the impaired-to-the-slightest


                                                2
 1 degree standard after a bench trial in metropolitan court, where the metropolitan court

 2 judge admitted the results of the breath test over Defendant’s objection. [MIO 3-6]

 3 Defendant appealed to the district court, which affirmed and issued a memorandum

 4 opinion. [RP 65, 70]

 5        We review an evidentiary ruling of the metropolitan court for abuse of

 6 discretion. State v. Soto, 2007-NMCA-077, ¶ 10, 142 N.M. 32, 162 P.3d 187. “A trial

 7 court abuses its discretion when a ruling is clearly against the logic and effect of the

 8 facts and circumstances[.]” Id. (internal quotation marks and citation omitted). When

 9 there is no evidence that necessary foundational requirements are met, an abuse of

10 discretion occurs. State v. Gardner, 1998-NMCA-160, ¶ 5, 126 N.M. 125, 967 P.2d

11 465.

12        Defendant argues that the measurement ratio in a breath test is a foundational

13 requirement. [DS 8] We agree with this assessment, but disagree that the trial court

14 improperly admitted the breath test. While we acknowledge some concern over the

15 officer’s confusion during his testimony, our Supreme Court has held that an officer’s

16 lack of knowledge of the underlying processes of the breath testing machine is not

17 fatal to admissibility of the breath card in a bench trial. See, e.g., State v. Martinez,

18 2007-NMSC-025, ¶ 22, 141 N.M. 713, 160 P.3d 894 (stating that, “[w]hether the

19 officer understands the underlying process that led to the document’s content does not


                                               3
 1 matter for foundational purposes—what matters is simply the content of the

 2 document”).

 3        While Defendant correctly notes that Martinez concerns whether an officer has

 4 first-hand knowledge of the certification process rather than whether an officer has

 5 first-hand knowledge of the breath-test ratio, we disagree with Defendant’s contention

 6 that Martinez is inapplicable to the current case. [MIO 8] As we stated in Onsurez, the

 7 ratio, like the certification in Martinez, is a foundational requirement. State v.

 8 Onsurez, 2002-NMCA-082, ¶ 17, 132 N.M. 485, 51 P.3d 528.

 9         Therefore, the rules for proving foundational requirements set out in Martinez

10 apply. When the trial court is considering whether the State has laid a proper

11 foundation for the admission of a breath test by a preponderance of the evidence, “the

12 trial court is not bound by the rules of evidence, except those concerning privileges.

13 Thus, the trial court may consider hearsay.” 2007-NMSC-025, ¶ 21. We therefore

14 need not address Defendant’s arguments that the district court permitted the State to

15 improperly lead its witness and improperly permitted the State to refresh the officer’s

16 recollection with the breath test. We hold that even if we accepted these arguments,

17 it was still within the discretion of the trial court to admit the breath test because the

18 trial court was not bound by the usual rules of evidence when “considering whether

19 a foundational requirement has been met.” Id. We therefore affirm the district court.


                                               4
 1        Defendant also contends insufficient evidence supports the jury verdict. “In

 2 reviewing the sufficiency of the evidence, we must view the evidence in the light most

 3 favorable to the guilty verdict, indulging all reasonable inferences and resolving all

 4 conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-

 5 009, ¶ 26, 128 N.M. 711, 998 P.2d 176. A sufficiency of the evidence review

 6 involves a two-step process. Initially, the evidence is viewed in the light most

 7 favorable to the verdict. The appellate court must then make a legal determination of

 8 “whether the evidence viewed in this manner could justify a finding by any rational

 9 trier of fact that each element of the crime charged has been established beyond a

10 reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994)

11 (internal quotation marks and citation omitted). “The reviewing court does not weigh

12 the evidence or substitute its judgment for that of the fact finder as long as there is

13 sufficient evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124

14 N.M. 346, 950 P.2d 789. Even though contrary evidence or alternative explanations

15 for the evidence might exist, the fact finder is free to reject Defendant’s version of the

16 facts. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

17

18        Defendant’s conviction for DWI requires that Defendant operated a motor

19 vehicle and that, at the time, Defendant was under the influence of intoxicating


                                               5
 1 liquor—that is, as a result of drinking liquor, Defendant was less able to the slightest

 2 degree, either mentally or physically, or both, to exercise the clear judgment and

 3 steady hand necessary to handle a vehicle with safety to the person and the public.

 4 See NMSA 1978, § 66-8-102(A) (2008). Alternatively, Defendant’s conviction for

 5 DWI requires that Defendant operated a motor vehicle and that, at the time, had an

 6 alcohol concentration of .08 grams or more in two hundred ten liters of breath within

 7 three hours of driving the vehicle. See § 66-8-102(C)(1). Applying the standards

 8 described above, we must therefore determine whether the evidence, viewed in the

 9 light most favorable to the State, was sufficient to establish Defendant drove a motor

10 vehicle while under the influence of alcohol.

11        We hold that the facts recited earlier in this opinion support Defendant’s

12 conviction for DWI under either standard. See State v. Sparks, 102 N.M. 317, 320,

13 694 P.2d 1382, 1385 (Ct. App. 1985) (defining substantial evidence as that evidence

14 which a reasonable person would consider adequate to support a defendant's guilt);

15 see also State v. Notah-Hunter, 2005-NMCA-074, ¶ 24, 137 N.M. 597, 113 P.3d 867

16 (holding evidence that a defendant smelled of alcohol, had slurred speech, admitted

17 to drinking alcohol, failed field sobriety tests, and was driving erratically was

18 sufficient to uphold a conviction for driving while intoxicated); State v. Gutierrez,

19 1996-NMCA-001, ¶ 4, 121 N.M. 191, 909 P.2d 751 (upholding a DWI conviction


                                              6
 1 based on behavior evidence when the defendant smelled of alcohol, had bloodshot

 2 eyes, failed field sobriety tests, admitted to drinking alcohol, and the defendant's

 3 vehicle was weaving into other traffic lanes); City of Portales v. Shiplett, 67 N.M. 308,

 4 309, 355 P.2d 126, 126 (1960) (upholding a conviction for DWI based on the officer’s

 5 testimony that the defendant smelled of alcohol, staggered when walking, and had

 6 difficulty using a telephone and talking); and see generally State v. Dutchover, 85

 7 N.M. 72, 73, 509 P.2d 264, 265 (Ct. App. 1973) (observing that DWI may be

 8 established through evidence that the defendant’s ability to drive was impaired to the

 9 slightest degree).

10        Accordingly, we affirm.

11        IT IS SO ORDERED.



12
13                                          CYNTHIA A. FRY, Chief Judge

14 WE CONCUR:



15
16 CELIA FOY CASTILLO, Judge



17
18 TIMOTHY L. GARCIA, Judge

                                               7
