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

 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                           NO. 29,384

 5 CRYSTAL FRANKLIN,

 6       Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Denise Barela Shepherd, District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Santa Fe, NM

14 Linday Yen, Assistant Public Defender
15 Albuquerque, NM

16 for Appellant

17                             MEMORANDUM OPINION

18 VIGIL, Judge.

19       Defendant Crystal Franklin appeals her conviction for driving under the

20 influence of alcohol in violation of NMSA 1978, Section 66-8-102 (2005), arguing

21 that the evidence was insufficient. This Court filed a calendar notice proposing
 1 summary affirmance. Defendant filed a memorandum in opposition, which we have

 2 given due consideration. We affirm the district court’s judgment. [RP 68-82]

 3        Substantial evidence is relevant evidence that a reasonable mind might accept

 4 as adequate to support a conclusion. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M.

 5 438, 971 P.2d 829. In reviewing the sufficiency of evidence used to support a

 6 conviction, we resolve all disputed facts in favor of the State, indulge all reasonable

 7 inferences in support of the verdict, and disregard all evidence and inferences to the

 8 contrary. Id. We determine as a matter of law “whether the evidence viewed in this

 9 manner could justify a finding by any rational trier of fact that each element of the

10 crime charged has been established beyond a reasonable doubt.” State v. Apodaca,

11 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation

12 omitted).

13        Three witnesses testified at Defendant’s trial in metropolitan court. Lieutenant

14 Byers of the Albuquerque Police Department testified as follows. [DS 1] On April

15 21, 2007, at 2:10 a.m., he used radar to determine that Defendant was driving 40 miles

16 per hour in a 30 mile-per-hour zone on Coal Avenue. [DS 1-2] After passing two

17 cross streets, Defendant turned onto another cross street and stopped. [DS 2] As

18 Byers walked toward Defendant’s car, it started moving slowly forward. [Id.]

19 Defendant’s window was open four or five inches. [Id.] Byers ordered her to stop,

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 1 which she eventually did. [Id.] While speaking to Defendant, who had rolled her

 2 window all the way down, Byers smelled a strong odor of alcohol, and noticed that

 3 her eyes were bloodshot and watery and her speech was slurred. [Id.] Defendant

 4 acknowledged having a few drinks earlier. [Id.] Officer Byers did not observe any

 5 bad driving such as weaving or striking the curb. [DS 3] He summoned another

 6 officer, and Officer Schwartz arrived. [DS 2-3] After Byers explained what he had

 7 observed, Schwartz took over the investigation. [DS 3]

 8        Officer Schwartz testified as follows. Upon speaking with Defendant, he

 9 observed that Defendant strongly smelled of alcohol and had bloodshot, watery eyes.

10 [DS 4] Defendant acknowledged having two drinks. [Id.] Officer Schwartz decided

11 to administer field sobriety tests (FSTs). [Id.] He did not notice any signs of possible

12 impairment as Defendant exited her car. [Id.] Defendant decided to remove her shoes

13 to take the tests. [Id.] Officer Schwartz did not inform Defendant as to what would

14 count as a failure in performing the tests. [DS 6] Defendant performed the horizontal

15 gaze nystagmus test as instructed. [DS 5] During the one-leg stand test, Defendant

16 put her foot down twice and raised her arms. [Id.] On the walk and turn test,

17 Defendant failed to touch her heel and toe on a total of eight steps out of the eighteen,

18 and had to ask Officer Schwartz how to perform the turn. [Id.] Officer Schwartz had

19 no trouble understanding Defendant as she answered his questions. [DS 6]

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 1        Defendant stipulated to admission of the blood alcohol test results, which were

 2 .07 and .06.    [DS 7]     Defendant testified that she was tired that night, and

 3 acknowledged having three drinks. [Id.] When she saw Officer Byers behind her, she

 4 had some difficulty finding a spot to pull over because cars were parked on the side

 5 of the street. [Id.] Defendant described the weather as freezing and the surface where

 6 the FSTs were administered as cold, wet, and sloping. [DS 8] Defendant testified that

 7 she wore contact lenses that made her eyes bloodshot, especially when she was tired.

 8 [Id.] She did not believe she was impaired by the three drinks she had. [DS 8-9]

 9        Defendant’s memorandum in opposition points to several purported weaknesses

10 in the evidence presented at trial. She points out that the bloodshot eyes could have

11 been due to her contact lenses, smoking, and fatigue; that the sidewalk where the field

12 sobriety tests (FSTs) were performed was sloping, slippery, and cold on her bare feet;

13 that her performance on the FSTs was only slightly deficient; that the odor of alcohol

14 could have come from open containers found in the car; that neither an odor of alcohol

15 nor failure to pass the FSTs is, standing alone, proof of intoxication; and that her

16 breath test results of .06 and .07 were under the .08 threshold for per se DWI as

17 defined at Section 66-8-102(C)(1). [MIO 9-12]

18        Defendant was convicted of “impaired to the slightest degree” driving under the

19 influence, in violation of Section 66-8-102(A), which provides: “It is unlawful for a

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 1 person who is under the influence of intoxicating liquor to drive a vehicle within this

 2 state.”

 3           A person is under the influence of intoxicating liquor if “as a result of
 4           drinking liquor [the driver] was less able to the slightest degree, either
 5           mentally or physically, or both, to exercise the clear judgment and steady
 6           hand necessary to handle a vehicle with safety to [the driver] and the
 7           public.”

 8 State v. Sanchez, 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d 446 (quoting UJI

 9 14-4501 NMRA).

10           We conclude that the evidence described above, considered as a whole, was

11 sufficient for the trier of fact to find beyond a reasonable doubt that Defendant was

12 driving while impaired to the slightest degree by alcohol. Evidence that alcohol was

13 present in her system included her own testimony that she had three drinks, her

14 acknowledgment to the officer at the time of arrest that she had been drinking, the

15 odor of alcohol at the time of arrest, her bloodshot watery eyes and slurred speech, and

16 the blood alcohol test results of .07 and .06. Evidence of impairment included her

17 delay in pulling over when the officer attempted to stop her, moving forward after she

18 was initially stopped, and her deficient performance on the one-leg-stand and walk-

19 and-turn FSTs. See, e.g., State v. Gutierrez, 1996-NMCA-001, ¶ 4, 121 N.M. 191,

20 909 P.2d 751 (including field sobriety test performance among the evidence that the

21 defendant was impaired).

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1     For the reasons set forth above, we affirm the district court.

2     IT IS SO ORDERED.

3
4                                      MICHAEL E. VIGIL, Judge

5 WE CONCUR:


6
7 CELIA FOY CASTILLO, Judge


8
9 RODERICK T. KENNEDY, Judge




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