 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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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. 29,737

10 CHRISTOPHER SANCHEZ,

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   Hugh W. Dangler, Chief Public Defender
18   Santa Fe, NM
19   Linda Yen, Assistant Public Defender
20   Albuquerque, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 WECHSLER, Judge.
 1        Defendant appeals his convictions for aggravated driving while intoxicated

 2 (refusal), speeding, and failure to maintain his lane. [RP 97-115] He contends that the

 3 evidence is insufficient to support his convictions. Our notice proposed to affirm.

 4 Defendant filed a memorandum in opposition. We are not persuaded that the analysis

 5 in our notice is incorrect and, therefore, we affirm.

 6 DISCUSSION

 7        A sufficiency of the evidence review involves a two-step process. Initially, the

 8 evidence is viewed in the light most favorable to the verdict. Then the appellate court

 9 must make a legal determination of “whether the evidence viewed in this manner

10 could justify a finding by any rational trier of fact that each element of the crime

11 charged has been established beyond a reasonable doubt.” State v. Apodaca, 118

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

13 omitted).

14        Deputy Hartsock testified that he observed Defendant’s vehicle speeding. [RP

15 98] According to the deputy’s radar, Defendant was traveling 48 miles per hour in a

16 25 mile per hour zone. [RP 98; MIO 1] This supports Defendant’s speeding

17 conviction. Even if the correct speed limit was 35 miles per hour, as was suggested

18 below, Defendant was still exceeding the speed limit. [RP 102-03] To the extent

                                              2
 1 Defendant argues that a “batching effect” could have undermined the accuracy of the

 2 radar equipment, [MIO 14] this argument was not made below. [RP 102]

 3        The deputy testified that Defendant’s vehicle began to move into the center or

 4 turn lane but remained half in the southbound lane and half in the turn lane for a few

 5 seconds. [RP 98] He testified that Defendant was straddling the line between the

 6 lanes for a while. [RP 98] We conclude that this evidence supports Defendant’s

 7 conviction for failure to maintain his lane. Defendant downplays this evidence,

 8 suggesting in his memorandum in opposition that there was nothing untoward about

 9 his driving, [MIO 12-14] but the district court was not required to accept his view.

10 See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (filed 1998)

11 (“Contrary evidence supporting acquittal does not provide a basis for reversal because

12 the jury is free to reject Defendant’s version of the facts.”).

13        There appears to be evidence that Defendant made a “very sudden” left turn.

14 [RP 98] Deputy Hartsock pulled Defendant over to see if Defendant was under the

15 influence of alcohol. Defendant smelled of alcohol, his eyes were bloodshot and

16 watery, and he admitted to having had a beer. [RP 103] Defendant apparently had to

17 brush the side of his vehicle to maintain his balance. [RP 103] He performed poorly

18 on field sobriety tests, was aggressive and loud, and during the finger dexterity test


                                               3
 1 shoved his hands toward the deputy loudly saying, “can you see these?” Defendant

 2 interrupted and was sarcastic. [RP 104]

 3        The deputy testified that he asked Defendant if he would take a breath or blood

 4 test, and Defendant did not answer. [RP 105] The deputy told him if he did not

 5 answer, he would take silence as “no.” [RP 105] Defendant remained silent.

 6        We hold that this evidence was sufficient to establish intoxication. See State

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

 8 evidence that the defendant smelled of alcohol, had slurred speech, admitted to

 9 drinking, failed field sobriety tests, and was speeding, was sufficient to support a

10 conviction for driving while intoxicated). Defendant downplays his repeated failures

11 on the field sobriety tests, presenting alternative explanations other than intoxication,

12 but the district court could reject his explanations. See Rojo, 1999-NMSC-001, ¶ 19.

13        We also hold that the evidence was sufficient to support refusal. See State v.

14 Fugere, 120 N.M. 29, 34-35, 897 P.2d 216, 221-22 (Ct. App. 1995) (stating that

15 declining a request or demand constitutes refusal). Defendant argues that at some

16 point he agreed to take a test, [MIO 15-18] but we are unpersuaded. Even if believed,

17 Defendant did not agree to take the test until an hour after he was stopped. [RP 113]

18 Under Matter of Suazo, 117 N.M. 785, 793, 877 P.2d 1088, 1096 (1994), this was too


                                               4
 1 late to cure his earlier refusal. Suazo requires that a defendant’s change of heart be

 2 expressed within “a very short time, never more than a matter of minutes.” Id.

 3 Defendant also suggests that he was not given the advisory about taking the test or

 4 may not have heard the deputy offer him the test. [MIO 16-17] It was for the district

 5 court to consider these arguments and to determine the weight to give them. The court

 6 did not accept them and was not required to accept them. See Rojo, 1999-NMSC-001,

 7 ¶ 19.

 8         In general, Defendant’s testimony differed from the deputy’s, but it was for the

 9 factfinder to consider Defendant’s version of events. The fact that Defendant’s

10 testimony was different does not require a conclusion that the evidence is insufficient.

11 See id. (“Contrary evidence supporting acquittal does not provide a basis for reversal

12 because the jury is free to reject [the d]efendant’s version of the facts.”).

13         We affirm Defendant’s convictions.

14         IT IS SO ORDERED.



15                                                 _______________________________
16                                                 JAMES J. WECHSLER, Judge




                                               5
1 WE CONCUR:



2 ______________________________
3 RODERICK T. KENNEDY, Judge



4 ______________________________
5 ROBERT E. ROBLES, Judge




                                   6
