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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 32,452

 5 ALVIN DEAN BRUTON,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY
 8 Kevin Sweazea, District Judge

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

11 for Appellee

12 Bennett J. Baur, Acting Chief Public Defender
13 Nina Lalevic, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VANZI, Judge.

18   {1}    Defendant appeals his conviction for driving while under the influence (DWI,

19 3rd offense). We issued a notice of proposed summary disposition, proposing to
 1 uphold the conviction. Defendant has filed a combined memorandum in opposition

 2 and motion to amend the docketing statement. After due consideration, we remain

 3 unpersuaded by Defendant’s assertions of error. We therefore affirm.

 4   {2}   As an initial matter, we will address the motion to amend. Such a motion will

 5 only be granted if the issue sought to be raised is viable. See State v. Moore, 109

 6 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989).

 7   {3}   Defendant seeks to raise an issue concerning his competency, contending that

 8 the district court erred in failing to conduct an evaluation. [MIO 1, 12] However, the

 9 district courts are only required to evaluate and determine competency if the matter

10 is duly raised, by bringing to the court’s attention “a legitimate concern about the

11 present ability of [the] defendant to consult and understand.” State v. Flores,

12 2005-NMCA-135, ¶¶ 17, 19, 138 N.M. 636, 124 P.3d 1175. In this regard, Defendant

13 relies on an isolated document within the record that reflects he was duly evaluated

14 and found to be competent in a separate criminal proceeding at the same time that the

15 instant matter was pending. [MIO 1; RP 64-65] Given the outcome in that parallel

16 proceeding, we fail to see how this document could be said to raise a legitimate

17 concern about Defendant’s competency. We therefore conclude that the issue is not

18 viable and deny the motion to amend on that basis.

19   {4}   Turning to the merits of the remaining issues, we previously set forth our

20 analysis at length in the notice of proposed summary disposition. We will avoid

                                             2
 1 undue reiteration here and instead focus on arguments newly advanced in the

 2 memorandum in opposition.

 3   {5}   First, Defendant renews his argument that the traffic stop that ultimately led to

 4 his arrest and conviction was not supported by probable cause. [MIO 7-9] The arrest

 5 was based on the officer’s observation of impaired driving, including swerving and

 6 weaving outside the lane of traffic, together with the strong odor of alcohol about

 7 Defendant’s person, Defendant’s admission to having consumed a significant quantity

 8 of alcohol, and the presence of a thirty-pack of beer in Defendant’s vehicle that was

 9 missing most of its cans. [DS 5-6; MIO 2-3] We remain of the opinion that these

10 observations provided ample support for Defendant’s arrest. See, e.g., State v.

11 Sanchez, 2001-NMCA-109, ¶¶ 8-9, 131 N.M. 355, 36 P.3d 446 (holding that an

12 officer had probable cause to arrest the defendant for DWI based on strong odor of

13 alcohol, bloodshot watery eyes, admission to drinking, and refusal to submit to field

14 sobriety or chemical testing); State v. Ruiz, 120 N.M. 534, 535, 540, 903 P.2d 845,

15 846, 851 (Ct. App. 1995) (holding that probable cause existed where police observed

16 the defendant speeding and weaving, the defendant admitted to having been drinking,

17 the officer noticed bloodshot, watery eyes, slurred speech, and a smell of alcohol, and

18 the results of the field sobriety tests were mixed); cf. State v. Soto, 2007-NMCA-077,

19 ¶¶ 32-34, 142 N.M. 32, 162 P.3d 187 (holding that there was sufficient evidence to

20 support a conviction for DWI even though no field sobriety tests were conducted,

                                               3
 1 given that the defendant had bloodshot watery eyes, slurred speech and a very strong

 2 odor of alcohol on his breath, the defendant admitted drinking, and the officers

 3 observed several empty cans of beer where the defendant had been). We therefore

 4 reject Defendant’s first argument.

 5   {6}   Second, Defendant continues to assert that the officer’s failure to re-set the

 6 breath testing apparatus to reflect that daylight savings time was in effect should have

 7 rendered the test results inadmissible. [MIO 9] However, based on testimony

 8 presented by the State at trial, [DS 11; MIO 4, 6] the district court appears to have

 9 duly concluded that the time error neither effected the accuracy of the test results nor

10 reflected that the test was performed outside the applicable three-hour window. See

11 generally NMSA 1978, § 66-8-102(C)(1) (2010) (“It is unlawful for . . . a person to

12 drive a vehicle in this state if the person has an alcohol concentration of eight one

13 hundredths or more in the person’s blood or breath within three hours of driving the

14 vehicle and the alcohol concentration results from alcohol consumed before or while

15 driving the vehicle.”); State v. Martinez, 2007-NMSC-025, ¶¶ 10-11, 21, 141 N.M.

16 713, 160 P.3d 894, (providing that the trial court must be satisfied by a preponderance

17 of the evidence that all “accuracy-ensuring” regulations have been followed prior to

18 admitting BAT results). We therefore reject Defendant’s second argument.

19   {7}   Third, Defendant renews his argument that his BAT results should have been

20 suppressed as a consequence of the State’s failure to provide him with a blood-alcohol

                                              4
 1 test. [MIO 9-11] However, Defendant was provided the opportunity to make

 2 arrangements for a blood draw, but he failed to do so. [DS 8, 10; MIO 5] We have

 3 previously held that nothing more is required. State v. Jones, 1998-NMCA-076, ¶ 24,

 4 125 N.M. 556, 964 P.2d 117. We therefore reject Defendant’s assertion that the

 5 officer should have taken additional, affirmative steps to ensure that a blood draw was

 6 performed.

 7   {8}    Fourth and finally, Defendant continues to assert that the trial court erred in

 8 admitting his BAT result, in light of Defendant’s personal views about the testing

 9 apparatus. [MIO 11] However, as we previously observed, insofar as the State

10 satisfied all foundational requirements, the BAT results were properly admitted.

11   {9}    Accordingly, for the reasons stated above and in the notice of proposed

12 summary disposition, we affirm.

13   {10}   IT IS SO ORDERED.

14                                          __________________________________
15                                          LINDA M. VANZI, Judge




16 WE CONCUR:




                                               5
1 _________________________________
2 JAMES J. WECHSLER, Judge



3 _________________________________
4 JONATHAN B. SUTIN, Judge




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