Opinion
NO. 35,392
09-19-2016
STATE OF NEW MEXICO, Plaintiff-Appellee, v. MAXWELL GRIEGO, Defendant-Appellant.
Hector H. Balderas, Attorney General Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender Steven J. Forsberg, Assistant Public Defender Santa Fe, NM for Appellant
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Cristina T. Jaramillo, District Judge Hector H. Balderas, Attorney General
Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender
Steven J. Forsberg, Assistant Public Defender
Santa Fe, NM for Appellant
MEMORANDUM OPINION
WECHSLER, Judge. {1} Defendant appeals from a conviction for DWI. We issued a notice of proposed summary disposition, proposing to uphold the conviction. Defendant has filed a memorandum in opposition. After due consideration, we remain unpersuaded. We therefore affirm. {2} In the docketing statement, Defendant raised three issues, all of which are renewed. [DS 14-15; MIO 1-2] Because the pertinent background information was previously set forth, we will avoid undue reiteration here, focusing instead on the content of the memorandum in opposition. {3} With respect to the first and second issues, Defendant concedes that the decision in State v. Montoya, ___ - NMCA - ___, ___ P.3d ___ (No. 34,298, June 29, 2016), is controlling. Defendant encourages the Court to reconsider that decision. [MIO 1] We decline. {4} With respect to the third and final issue, Defendant continues to argue that the trial court refused to consider countervailing evidence. [MIO 1-2] However, the trial court's comments, as a whole, reflect that the trial court duly considered the evidence presented, including the testimony of the witness who discussed uncertainty. [RP 60-62, 64] And ultimately, the trial court's reliance upon the BAT results was permissible. See id. ¶ 34 (similarly concluding that "SLD-approved chemical test results of 0.08 or higher are sufficient" to support convictions for per se DWI, and upholding a conviction where the defendant's breath test results were .08/.08). {5} Accordingly, for the reasons stated, we affirm.
{6} IT IS SO ORDERED.
/s/ _________
JAMES J. WECHSLER, Judge
WE CONCUR:
/s/ _________
JONATHAN B. SUTIN, Judge /s/ _________
LINDA M. VANZI, Judge